Q: The Board of our condominium association is discussing a deal with a cellular company for the installation of cell phone towers on the roof of the building. Apparently the tower lease could make good money for the association. However, we are concerned about our not-for-profit status and that the members should vote on this project. What laws should we be concerned about?
A. Many governing documents for condominiums and homeowners associations limit the Board’s authority to assess the members for “capital improvements.” In addition, Section 718.113(2)(a) of the Florida Statutes provides that a vote of 75% of the owners of a condominium is required to approve expenditures for material changes, alterations, or additions,
unless the governing documents specifically state otherwise. On the other hand, the Board has an absolute duty to maintain, repair, and replace the common property owned by the association, and any provisions in governing documents that require ownership approval based on the amount of the expenditure are not valid if the expense is a maintenance, repair, or replacement expense. In this case, the installation of a cell phone tower is probably a “capital improvement” that requires membership approval. The association need not be concerned about its “not-for-profit” status provided that any revenues from the cell tower lease are retained by the association and used to offset operating expenses. Many associations, such as semi-private golf clubs, operate facilities that are open to the public and generate revenue. Provided the revenues are not distributed to the members as dividends or profits, the association is generally free to pursue these type of projects provided the membership approval is obtained when appropriate.