Accountability
The
Palm decision requires that condominium associations adhere to their declaration and by-laws.
From Article VI, Section 2, paragraph d of our by-laws,
here is the relevant text, excerpted from our web site:
On or before the 1st day of July of each year commencing 1980, the Association shall supply to all Unit Owners an itemized accounting of the Common Expenses
for the 12 months ending the last day of February 28 of each year actually incurred and paid together with a tabulation of the amounts collected pursuant
to the budget or assessment (emphasis mine), and showing the net excess or deficit of income over expenditures plus Reserves. Any amount accumulated in excess of the
amount required for actual expenses and Reserves shall be credited according to each Unit Owner's percentage of ownership in the Common Elements
to the next monthly installments due from Unit Owners under the current year's Annual Budget, until exhausted, and any net shortage shall be added,
according to each Unit Owner's percentage of ownership of the Common Elements, to the installments due in the succeeding six months after rendering of the accounting.
This by-law has never been followed. To summarize in plain English, it requires that by July 1st of each year, our actual expenses for the prior fiscal year be documented, alongside the
amounts collected. The surplus (or deficit) is to be credited to (or debited against) each association member based upon their percentage ownership.
Any surplus is to be credited to each owner in their next montlhy statement, or in the case of a deficit, to be added to each of the next 6
monthly statements.
Our own legal firm
weighed in on the matter:
Transferring Surplus Association Income to Reserve: The court declared that the Board breached its fiduciary duty by transferring surplus income to the Association's
reserve account rather than crediting it against unit owners' future assessments, as required by the Declaration.
Commingling of Operating Funds and Reserve Funds: The court also found that the Board breached its fiduciary duty by using the operating fund to pay reserve
expenses and later reimbursing the operating fund from reserves.
Our board is committing the same transgressions that 2800 Lake Shore Drive was found guilty of in the Palm Decision.