Do garages count as a 'story' when it comes to condo building inspections in Florida?

Yahoo

06-02-2025

Live in a home governed by a condominium, co-op or homeowner's association? Have questions about what they can and cannot do? Ryan Poliakoff, an attorney and author based in Boca Raton, has answers.
Question: Does the three stories or higher new inspection rule count a parking level below the three living levels of a condo, thus actually making the building itself four stories? — Signed, T.A.
Dear T.A.,
Under the Florida Building Code stories are measured from the grade plane, upward — so underground garages would not count. But, if you are talking about an above-ground garage, with the living space beginning above that garage, it would count as a story.
Question: Can a person who is not on the deed of a condominium but holds a legal power of attorney for the property run for a position on the Board of Directors? — Signed, R.J.
Dear R.J.,
A power of attorney is a legal document that allows a person to step into the shoes of another for specific purposes. So, for example, a unit owner could grant someone a power of attorney to manage their condominium unit for them, communicating with management on their behalf, making decisions and even attending and participating in meetings.
However, whether a person is eligible to serve on a corporate board of directors depends on the language in the governing documents (usually the articles or bylaws).
The Condominium Act expressly states that owners may serve as directors — but not all governing documents limit board members to only owners. Some documents have no limitation at all, and technically any person could run for the board: tenants, family members, even people entirely unassociated with the condominium (I have rarely seen this occur, but it's a technical possibility).
However, a person with a power of attorney is not, by that document, an owner — so if the bylaws limit board membership to owners (persons listed on the deed as recorded in the public record) a power of attorney would not grant another person the right to serve on a board in their stead.
In case there was any question, Florida's Administrative Code also expressly states that where non-unit owners are prohibited from serving on the board, a person acting under a power of attorney is similarly disqualified.
Question: I live in a development governed by an HOA. We just voted out a board member/president of the HOA last year. He is not a resident of the community and doesn't even own a house outright. He is in partnership with another person (no stated formal partnership or corporation). He really wreaked havoc on our community, and we are close to bankrupt because of him and two of his buddies on the board.
The current board wanted to amend our bylaws to state that only 'homestead exemption' owners can be on the board. Our HOA lawyer says we can't do that but has provided no documentation. Can you lend some insight into this? Can we make the change to our bylaws, and have it upheld legally? — Signed. T.L.
Dear T.L.,
I agree with your association's lawyer. Your question is adjacent to the issue I addressed above. The HOA Act, at Section 720.306, Fla. Stat., expressly states that 'all members of the association are eligible to serve on the board of directors.' Your governing documents will define who your association's 'members' are, but most of the time it will be any person who is listed as an owner on the deed.
So, it doesn't ultimately matter if this person has a formal business relationship with the person with whom he co-owns his lot — if they are both on the deed, they are both owners, and so are likely both 'members' who are entitled to serve on the board. And if that's the case, you can't amend your bylaws to say otherwise.
You might be wondering whether you could amend your documents to change the definition of 'member' — but I don't think that would be possible for a number of reasons.
These include that it's tied into so many other aspects of how your HOA works, and also because the HOA Act expressly defines 'member' as any person or entity obligated by the governing documents to pay an assessment — and you certainly don't want to exempt this person from assessments just to avoid him serving on the board. In fact, you did exactly what you should have done — you voted him out.
Ryan Poliakoff, a partner at Poliakoff Backer, LLP, is a Board Certified specialist in condominium and planned development law. This column is dedicated to the memory of Gary Poliakoff. Ryan Poliakoff and Gary Poliakoff are co-authors of "New Neighborhoods — The Consumer's Guide to Condominium, Co-Op and HOA Living." Email your questions to [e-mail]. Please be sure to include your location.
This article originally appeared on Palm Beach Post: Florida condo law 2025: Expert on building height on inspection