Who controls the streets?

Q:I live in a Sarasota County deed-restricted community. The developers of the community put in the roads, underground utilities and sidewalks, and then deeded them to the county. The county is responsible for maintaining them. The homeowners' association was only formed after the roads and sidewalks were dedicated to the county.

Questions keep coming up about whether the homeowners' association has jurisdiction over who can park on the streets, and for how long. Some feel that the county has jurisdiction because the streets were deeded to the county prior to the formation of the homeowners' association, and others believe that the homeowners' association is in control because the bylaws say it is. Can you help? -- T.C., via e-mail

A:The only way to know for sure is to obtain a legal opinion. The recorded documents for the community should be examined, particularly as to whether the streets are considered "common areas" for the purposes of the association's jurisdiction. The recorded instruments that transferred the streets and sidewalks to the county also should be reviewed.

If private deed restrictions are more stringent than county requirements, the county will not assist the homeowners' association in any enforcement efforts.

If the parking concerns are a major point of contention in your community, obtaining a legal recommendation for proceeding is the way to go.

Association insurance

How important is it for condominium associations to carry insurance? A South Florida community just found out the hard way.

In Lauderhill, a 30-unit complex suffered extensive fire damage. No one was injured, but the association board of directors had made a decision to allow the association's property insurance to lapse. The modest complex had been hit with rising costs and a number of units in foreclosure. The decision to forego insurance was made as a cost-saving measure, which will no doubt be disastrous to the owners who were probably unaware that the association could act unilaterally in such a manner as to destroy their investment in their units.

Chapter 718, Florida's condominium statute, contains extensive provisions regarding insurance responsibilities for associations.

Perhaps most significant and certainly most general in its application is the requirement to carry "adequate" insurance. It would be hard to convincingly argue that no insurance at all could meet the definition of "adequate."

In addition to the statutory insurance requirements, a community's condominium documents normally spell out insurance requirements. Those documents, written by the developer's legal counsel, can be woefully deficient and may not be consistent with insurance products that are available today.

If you serve on the board of your condominium association, you should be aware that the law imposes a fiduciary duty to all owners in the condominium. The failure to carry insurance could result in personal liability to the directors who made that decision. That is a matter for the courts, but the risk is great.

Anyone serving on a board has homework to do. Boards need to work closely with the association's insurance carrier and agent. A qualified company will review the association's condominium documents and be familiar with the property through personal inspection and appraisals. A failure to meet the "adequate" insurance standard may mean that a director personally assumes the responsibility to cover any insurance deficit in the case of a major loss. Failure to maintain proper insurance is also generally listed as an exclusion under a directors and officers liability policy carried by the association for the benefit of the board.

Directors, innocent of bad faith, self-dealing or criminal conduct, can rely on advice from competent professionals and thereby insulate themselves from personal liability.

Tamela Wiseman is a board- certified real estate attorney and serves as of counsel to Becker & Poliakoff, P.A. E-mail: twiseman@becker-poliakoff.com.