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The Reserve Process – To Fund or Not to Fund, That is the Question

As the end of 2015 nears, so too does the end of the fiscal year for many condominium associations throughout Florida. Most condominium association boards have begun to prepare their association’s annual budget for the upcoming year. Sometimes there is confusion amongst condominium association boards as to whether or not they must fully fund reserves as part of the budget adoption process and the timing as to when it is appropriate to present the opportunity to waiver or reduce the reserves to the unit owners. In short, the condominium association’s budget, with the reserves fully funded, must be presented to the unit owners. At that time, alternative budgets may also be presented that show the effects of waiving or reducing the reserves, too. At the sole discretion of the board, the unit owners can be presented the opportunity to waive or reduce the reserves before or after the board’s adoption of the budget.

A reserve must be established for roof replacement, building painting, pavement resurfacing and any other project that has an anticipated cost of greater than $10,000. Pursuant to section 718.112(2)(f) of the Florida Statutes and Rule 61B-22.005 of the Florida Administrative Code, Florida condominium associations must fully fund reserve accounts for deferred property maintenance and replacement projects. Only after the budget has been presented to the owners with fully funded reserves can the board, if it so desires, present to the unit owners the opportunity to vote to waive or reduce the reserves.

At the discretion of the board, the owners should be presented with the opportunity to waive or reduce the reserves based on the presented budget that establishes the reserves as fully funded. Pursuant to section 718.112(2)(f), Florida Statutes, in order for reserves to be either waived or reduced by the unit owners, at least a majority of those unit owners present, in person or by proxy, at the meeting at which a quorum of the unit owners is attained must approve the waiver or reduction of reserves. The amount or percentage of the reserve reduction that is presented for vote is set at the discretion of the board. Moreover, the vote to waive or reduce reserves can be with regard to all reserve items or for only select reserve items. It would not be correct for the board to present the budget without reserves and then provide the owners the opportunity to partially or fully fund the reserves. Remember, that the process requires the board present the budget with reserves fully funded and then the unit owners can have the opportunity to waive or reduce.

If voting by limited proxy is used, the proxy must include the following disclosure in bold, capital letters and in a font size larger than any other font used in the limited proxy:

WAIVING OF RESERVES, IN WHOLE OR IN PART, OR ALLOWING ALTERNATIVE USES OF EXISTING RESERVES MAY RESULT IN UNIT OWNER LIABILITY FOR PAYMENT OF UNANTICIPATED SPECIAL ASSESSMENTS REGARDING THOSE ITEMS.

If the unit owners do not approve the waiver or reduction of reserves, the reserves must be fully funded as presented in the budget. If the unit owners do approve the waiver or reduction of reserves, the waiver or reduction is only good for the budget year in question. If the following year the condominium association board would like to propose waiving or reducing reserves, the opportunity to waive or reduce reserves must be presented to the unit owners once again.

How much is needed for a reserve account will depend on several factors, including, for example, the estimated remaining useful life of the asset and its replacement cost. Additionally, the manner in which the reserve funds are to be maintained will depends on whether the reserves are keep as separate line-item reserve accounts or as “pooled” reserves. In any event, the budget adopted by a condominium association board must first and foremost include fully funded reserves.

A multicondominium association must adopt a separate budget of common expenses for each condominium the association operates and adopt a separate budget of common expenses for the association. This can accomplished as sub-parts of the same master budget.

Reserve funds and any interest accruing thereon must remain in the reserve account or accounts, and may be used only for authorized reserve expenditures unless their use for other purposes is approved in advance by a majority vote at a duly called meeting of the association. The only voting interests that are eligible to vote on questions that involve waiving or reducing the funding of reserves, or using existing reserve funds for purposes other than purposes for which the reserves were intended, are the voting interests of the units subject to assessment to fund the reserves in question. To pass any vote regarding waiving, reducing, pooling or using the reserves for a different purpose requires a majority of a quorum of the unit owners present, in person or by proxy, at a membership meeting. In the case of a multicondominium, a majority of a quorum of the unit owners comprising a particular condominium, in the same percentage as a quorum of the members is otherwise established, present, in person or by proxy, at a membership meeting may approve the waiver or reduction of reserves.