Nov. 21, 2009, 11:01 p.m. ET
Q:It seems very popular now to have some type of trust and put your real estate holdings in that trust. If the title of a property reads “John Smith as trustee of the John Smith Revocable Living Trust,” or “John Smith, trustee for the John Smith Trust,” is John Smith, individually, as the trustee, the only owner who has rights as a member of the condominium association?
If someone else is named the member under the trust documents, does that person have rights as well? Can the trustee convey those rights with a voting certificate? If another individual is named in the trust and they do have rights, can the association demand a copy of the trust in order to see who is named? — J.S., via e-mail.
A:You are right that many Florida condominium owners place their properties into trusts, which in the case of certain trusts does not eliminate the homestead exemption on the property. A good set of condominium documents will spell out both voting and membership (i.e., occupancy) rights in the case of a unit owned in trust. Unfortunately, many condominium documents do not address the trust issue.
According to Section 718.103(28) of Florida’s Condominium Act, a “unit owner” is defined as the record owner of legal title to a condominium unit. In most instances, the trustee will hold the legal title even though the “beneficial” title may be held by others.
The good news is that often the trustee and beneficiary are in the same family. As for voting certificates, review the association’s bylaws to determine who can vote for a unit owned in trust. The association can probably require a copy of the trust in connection with its approval of the sale or transfer of the unit if the condominium documents require it. If your association’s condominium documents do not address who can occupy the unit (essentially to be the “member”) when it is owned by a corporation, partnership, trust or other artificial entity, I recommend an amendment to the documents.
Can court be paved?
Q:My condominium has a parking garage. Above the garage is a tennis court that I have never seen anyone use. The court has always leaked into the garage, and cars have been damaged. Although the association continues to fix the leaks, I am wondering if the association can just pave over the court, as no one uses it. — C.C., via e-mail
A:Your question does not indicate that the association has ever performed an engineering inspection of the garage and the court surface. I recommend that this be done. The association has a fiduciary duty to maintain, repair and replace the common elements of the condominium.
Eliminating or changing the use of the tennis court is most likely a “material alteration” of the common elements. Look at your condominium’s declaration of condominium to determine what procedure needs to be followed before such a change is made. If the declaration is silent, 75 percent of the voting interests (usually one vote per unit) must approve.
Tamela Wiseman is a Florida Bar board-certified real estate attorney and serves as of counsel to the law firm of Becker & Poliakoff, P.A. She concentrates her practice on the law of community associations and general real estate transactions, including the issuance of title insurance. The subjects discussed in this article are not intended as specific legal advice. Questions may be modified for clarity or brevity. Questions may be directed to Mrs. Wiseman for possible publication via e-mail to twiseman@becker-poliakoff.com.
