Returning Surplus Funds

Q We are a 56-unit condominium. Our bylaws require that end-of-year excess funds be returned to unit owners either in a lump sum or credited to monthly installments until exhausted. Bylaws define excess funds as net excess of income over actual expenditures plus reserves. The past couple of years, end-of-year cash balance has been rolled over to the next year, and in some cases transferred to reserves. When bylaws require excess funds to be returned to owners, do owners have any rights concerning a voice in how these funds are disbursed when the funds are not returned to them as prescribed in the bylaws?

—No Happy Returns

A "Florida Statute 718.103(10) provides that common surplus means the amount of all receipts or revenues, including assessments, rents, or profits, collected by a condominium association which exceeds common expenses," says Leonard Wilder, an attorney with the law firm of Bakalar & Associates, P.A. in Coral Springs. "Common expenses are further defined in Fla. Stat. 718.115(1)(a) to include the expenses of the operation, maintenance, repair, replacement of protection of the common elements.

"Without reviewing the governing documents of the community, I presume your reader is accurately quoting the bylaw provision concerning how surplus funds are to be handled. If so, it would be my opinion that it is up to the board of directors to determine, at a duly noticed meeting, if they wish to cut a check and return the surplus funds to the owners (something I have yet to see done) or credit the owners’ respective shares to monthly assessments (a more likely scenario if a condominium is operating in the black ). In either scenario, per Fla. Stat. 718.115 (3), a surplus is owned by the unit owners in the same shares as their ownership interest in the common elements. I do not know of any legal right to apply surplus to reserves, presuming reserves have not been waived or reduced.

"As to the second question, do owners have any rights concerning a voice in how these funds are disbursed when the funds are not returned to them as prescribed in the bylaws? The answer to this question is that unit owners have a right to voice their concerns to the board. But in the end, unless the bylaws provide otherwise (or until they are amended to provide otherwise) the decision on how to deal with reserves is to be made by the board which must act in accordance with the bylaws and the Condominium Act."