The Call of Duty The Importance of Fiduciary Responsibility

When electing board members to serve on behalf of your community, you expect them to be on their best behavior and to think of the needs of the building and the people who live there when making their decisions. Regardless of the type of community they serve, board members have a responsibility to govern and make decisions on behalf of that community. This is often referred to as the board's “fiduciary duty.”

Decisions made on behalf of a board's fellow residents must be made in good faith, with the best interests of the community firmly in mind, and violating this duty can lead to legal consequences for boards and individual board members who stray. Unfortunately, some people do stray—and this is why the legal community is steadfast about clearly defining what is expected and required in a board's fiduciary duty.

A Fine Line

Condo, co-op, and HOA board members in the Sunshine State must walk a fine line when navigating the breadth and limitations of fiduciary duty, and they must be extremely knowledgeable regarding their responsibilities. But the burden of fiduciary duty does not fall solely on the board; owners and residents must also be aware of their rights, so that they will know what to do should a board member make a decision that perhaps is not in the best interests of the entire community..

Under Florida state law, a fiduciary relationship exists where there is special confidence in one party, which is then bound to act in good faith with regard to the interest of another party, explains Shari Wald Garrett, an attorney with Siegfried, Rivera, Hyman, Lerner, De La Torre, Mars & Sobel, P.A., headquartered in Coral Gables. “A board's duty includes, but is not limited to, fair dealing and a general prudence in how one obtains information and makes decisions on behalf of the condominium association,” she says.

Therefore, when facing a decision, the board members should always make that which is deemed in the best interest of all of its members—and of all of its residents. More specifically, Florida Statute Section 718.111, which governs condominiums, provides in pertinent part that “the officers and directors of the association have a fiduciary relationship to the unit owners,” and states further that “an officer, director or manager may not solicit, offer to accept, or accept anything or service of value for which consideration has not been provided for his or her own benefit or that of his or her immediate family, from any person providing or proposing to provide goods or services to the association.”

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3 Comments

  • Are Condo's owners allowed to put up surveillance camera out side there door.
  • I am desperately lokiong for an attorney that represents the homeowner against HOA's. About 4 years ago, I began receiving violation letters from my HOA. I fixed what they asked me to fix (screens on my windows, new paint on my mailbox, etc.), but they still fined me $450. I contacted them to ask they why and they did not respond. Since then, the amount they say I owe has fluctuated from $150 and now up to almost $1000. They have put a lien on my house and sent me to collections. I sent a letter to the collections company disputing the amount and asked for an itemized statement, which I have asked for in the past. They responded by filing a new lien for a higher amount. I have recently been forced to take a 20% pay cut and am trying to refinance my home. Of course, they want the lien paid off before they will refinance. I don't have the money to pay it off, and would like to know what the $1000 fine is for. Don't I have a right to know? Nobody seems to want to help the homeowner. Right now, I'm lokiong at bankruptcy and/or foreclosure without a refinance. There has to be some kind of solution and rules that they have to follow.For the record, I am not the only one in my neighborhood that is fighting with them. Many of my neighbors have been fined and locked out of the amenities. By the way, they charge us $25 disconnect fee for every year we're locked out of the pool and tennis, so not only are they charging residents to use the amenties, they are also charging us when we can't used them.
  • The President of our small COA is over 40 days Late on his dues. He has not held a regular BOD meeting in 2 years. I don't believe he has Been notified and I believe it's a breach of feduciary to not record a lien so we have priority in case of foreclosure. I am afraid as I've been threatened with defam lawsuit if I file a complaint.