Lawyer Blog-Wifi a Common Expense?
Aug 22, 2014 13:27:59 GMT -5
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Post by BagLady on Aug 22, 2014 13:27:59 GMT -5
Wi-Fi For All is Likely a Common Expense For Community Associations
By Joseph Adams on August 21st, 2014 Posted in Reader Q&A
Question: If the Association were to put in a Wi-Fi (wireless internet) system for all owners to use would that be considered a common expense? D.P. (via e-mail)
Answer: In July of 2010, Section 718.115 of the Florida Condominium Act was amended to define the cost of communication services and internet services obtained pursuant to a bulk contract as a proper common expense of a condominium association. “Communication services” is statutorily defined as the transmission, conveyance or routing of voice, data, audio, video or any other information or signals. I believe the 2010 amendments to the Act, together with this definition of “communications services,” make Wi-Fi service a proper common expense.
However, there is conflicting case law as to whether amendments to the Act can be retroactively applied to existing condominiums. Generally, Florida courts have held that the law as it exists on the date your condominium’s declaration is recorded controls. At the other end of the spectrum is a conflicting case holding that to apply only the law in existence as of the date your condominium was created, thus ignoring all subsequent amendments to the law, would result in a “morass of legal entanglement” where associations created in differing years would be governed by a different set of laws.
Further complicating the analysis of retroactive application of amendments to the Act is the Florida Constitution, which prohibits the legislature from enacting laws that impair vested contractual rights. The courts have held that condominium declarations are contracts.
One way to avoid this complex topic of retroactive application of amendments to the Act is to amend your declaration of condominium to incorporate future changes of the laws that govern condominiums, though there are pros and cons to this approach that should be discussed with counsel.
Setting aside whether Wi-Fi service is a proper common expense, another issue which must be considered is whether the installation of the equipment necessary to provide the Wi-Fi service will constitute a material alteration to the common elements which may require unit owner approval. The analyses of this issue will depend on scope of installation required to provide Wi-Fi service to your association and the provisions of your governing documents that address material alterations.
Answer: In July of 2010, Section 718.115 of the Florida Condominium Act was amended to define the cost of communication services and internet services obtained pursuant to a bulk contract as a proper common expense of a condominium association. “Communication services” is statutorily defined as the transmission, conveyance or routing of voice, data, audio, video or any other information or signals. I believe the 2010 amendments to the Act, together with this definition of “communications services,” make Wi-Fi service a proper common expense.
However, there is conflicting case law as to whether amendments to the Act can be retroactively applied to existing condominiums. Generally, Florida courts have held that the law as it exists on the date your condominium’s declaration is recorded controls. At the other end of the spectrum is a conflicting case holding that to apply only the law in existence as of the date your condominium was created, thus ignoring all subsequent amendments to the law, would result in a “morass of legal entanglement” where associations created in differing years would be governed by a different set of laws.
Further complicating the analysis of retroactive application of amendments to the Act is the Florida Constitution, which prohibits the legislature from enacting laws that impair vested contractual rights. The courts have held that condominium declarations are contracts.
One way to avoid this complex topic of retroactive application of amendments to the Act is to amend your declaration of condominium to incorporate future changes of the laws that govern condominiums, though there are pros and cons to this approach that should be discussed with counsel.
Setting aside whether Wi-Fi service is a proper common expense, another issue which must be considered is whether the installation of the equipment necessary to provide the Wi-Fi service will constitute a material alteration to the common elements which may require unit owner approval. The analyses of this issue will depend on scope of installation required to provide Wi-Fi service to your association and the provisions of your governing documents that address material alterations.
The writer giveth and taketh away; saying on one hand that wifi meets the statutory definition of "communication services" but then goes on to say that the actual attempt at imposing it is met with huge legal problems and requires major revisions in governing documents and membership approval. Good Times! BOD's and their sponsors become rainmakers for Association Attorneys!