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(4-6-23)

Community Associations Should Take Proactive Approach to Maintaining Communications Channels with Non-Resident Owners 

By Laura M. Manning

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(3-23-23)

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(3-9-23)

Virtual Meetings Growing in Popularity for Florida Community Associations 

By Laura M. Manning

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(2-23-23)

Recognized with Prestigious Public Affairs Council Award 

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(2-9-23)

Motley Fool Article Highlights Benefits, Appeal of Communities with Associations

By Laura M. Manning

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(1-26-23)

Often Thankless Job of Board Service

By Roberto C. Blanch

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(1-12-23)

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(12-29-22)

Common Community Association Restrictive Covenants and Why They Exist 

By Roberto C. Blanch

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(12-15-22)

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(12-1-22)

New CAI Public Policy on Sign, Flag Restrictions in HOAs Calls for Allowing Communities to Decide What’s Right for Them 

By Laura M. Manning

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(11-17-22)

Tips for Florida Community Associations Considering Online-based Voting 

By Roberto C. Blanch

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(10-20-22)

Tips for Florida Community Associations Considering Online-based Voting

By Roberto C. Blanch

With the passage of a new law in 2015, the Florida legislature made online-based electronic voting an option for the state’s community associations. Many associations have since adopted the use of electronic voting for their meetings and elections, and the supporters thereof have claimed that is has yielded a number of benefits including increased membership participation and improved tracking of owner participation, trends and interests. Here are a few helpful tips for those who are now considering the implementation of electronic voting in their communities. 

Boards of directors should first be aware that if they wish to implement an internet-based voting system for the votes of their owners, they must do so in compliance with the statutory procedures applicable to their respective associations, which include the adoption of a resolution supporting the platform at a properly noticed meeting. Once approved, associations should notify the owners of the change as well as the procedures and deadlines for owners to opt-in or opt-out via written responses that are added to its records. 

Florida law requires that community association e-voting systems must be able to authenticate owners’ identities and receive ballots in a manner that ensures their secrecy and integrity. For board elections, the owner-identifying information must be separated from each ballot to render it impossible to tie authenticated ballots to specific owners. The systems must also be able to store and keep electronic votes accessible for recount, inspection and review purposes. 

In light of the complexity regarding the administration of the electronic voting platform in conformance with the legally imposed criteria and procedures, we encourage associations to engage a reputable Florida-specific electronic voting platforms vendor. Association boards and management should carefully evaluate such electronic voting platform operators to confirm that the vendor is qualified to comply with the Florida laws governing the administration of electronic voting and it has successfully provided such services to other community associations. In addition to cost-efficiency and increased election turnout benefits stemming from electronic voting, its advocates claim that these systems may offer ancillary benefits, such as allowing associations to easily and affordably create and distribute owner surveys on topics ranging from major renovation projects to prospective new equipment for the fitness center. 

Proponents of electronic voting have also claimed that it may help associations by encouraging participation and making difficult quorum thresholds achievable, and it also makes it much easier to track, report and store all election ballots and results. 

For associations just getting started with online voting evaluation, the best approach is to first do their research on the different systems that are available, and to seek the advice of qualified expert such as licensed property managers and board-certified community association attorneys. Unit owners should be provided with effective guidance, including detailed written instructions, and board meeting discussions should take place to address any questions or concerns.

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(10-6-22)

Effective Board Secretaries Help Community Associations Thrive 

By Laura M. Manning

Florida community associations are required to keep certain records and make them available to all their members, so the position of secretary as the official record keeper of an association is of vital importance. 

The most effective association secretaries are typically detail oriented, highly organized, efficient, and responsive. They must be able to coordinate records and communications with property management and the other members of the board, executive committee, and other association committees. 

Strong writers and communicators often do well in the position. Secretaries are responsible for keeping the “meeting minutes” for all official association board meetings, so they must be able to listen closely to detailed discussions and distill them into clear and concise summaries. The best ones understand that these minutes must be accurate yet concise. They are not meant to document everything that everyone said at the meetings, but rather to list the topics and reports that were discussed, and all the actions taken. 

Community association secretaries should understand that the focus of the meeting minutes must be on recording all votes and decisions. They need only include a summary of the discussions, with a complete and accurate listing of the motions made and the resulting votes. 

Other typical duties of the secretary involve state and municipal filings and paperwork, which will hopefully be handled under the guidance of qualified management and legal professionals. Also, for the annual elections, secretaries will often be responsible for coordinating the distribution and collection of ballots and proxies as directed by the governing documents and Florida law. 

Effective secretaries are among the most essential elements for community association boards of directors to function at the highest possible level. By always ensuring that the right individual is manning the position, community associations can build a foundation for excellence in all of their management and administrative matters.

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(9-22-22)

Florida HOAs Can Restrict Vegetable Gardens 

By Roberto C. Blanch

(9-8-22)

Florida’s Mandatory New Condominium Building Reporting System Begins with New Online Form

By Laura M. Manning

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(8-25-22)

No Better Time Than Now for CAI Civility Pledge 

By Roberto C. Blanch

As the election season begins to get into full swing in anticipation of the upcoming midterm in November, the polarized nature of today’s political and social environment makes this an important time to remind community association directors and unit owners of the importance of the need for civility and respect in their interactions with their neighbors. These times, when yard signs supporting candidates and social causes/organizations have led to skirmishes and hostilities in connection with past elections, makes this an ideal moment to remind stakeholders in communities of efforts that can be deployed to promote civility among neighbors. 

While we are often reminded about the importance of preserving our individuality, it is also vital to remain tolerant of others’ individuality. This concept is even more relevant within community association living – in which many individuals with different points of view, ideals and opinions are required to coexist with each other in a relatively small area, and also to share in the use and upkeep of common facilities. Communities in which owners display high levels of volatility and intolerance may be considered undesirable places to live, and enclaves in which discord may stand in the way of progress. 

At the other end of the spectrum, some communities choose to avoid conflicts in situations that could result in the stagnation of progress or in the deterioration of the fabric of the community, possibly even resulting in declining property values. 

In light of the potential for adverse results that may arise due to community conflicts, unit owners as well as directors and managers should focus on efforts to advance the objectives of their community while remaining tolerant of differing opinions, approaches and points of view. 

A recent Community Associations Institute (CAI) blog article discussed how the strains of the pandemic and other issues have led to an unwillingness to listen to and tolerate differing viewpoints, which has fostered an increasingly unhealthy environment in communities. The author interviewed several experts in psychology and sociology, who advised association directors to start by insisting upon a baseline of civil and respectful behavior. 

In the article, Don Forsyth, a professor of social psychology at the University of Richmond in Virginia, recommends developing a focus on shared goals to help repair damaged and fragile relationships. He believes that building an identity and a sense of purpose for the community will create unity “faster than anything else,” and he urges community associations to avoid discussing controversial political and social issues. 

Instead, “they should stick with practical matters pertaining to the community. Leaders also should acknowledge the physical isolation as well as loss of civility and neighborly atmosphere experienced during the pandemic.” 

David G. Myers, a professor of psychology at Hope College in Michigan, is also quoted emphasizing the importance of revisiting what makes the community association unique or special, such as its history, architecture, or amenities, and he suggests creating a community logo or posting photos on a website to build that sense of “us.” Increasing communication with members and scheduling fun events such as fundraisers or contests are also recommended to build cohesion and community harmony. 

The CAI post refers readers to the organization’s “Civility Pledge,” which is a very helpful for community associations directors and managers to plan and begin implementing efforts to build and maintain community civility, harmony and mutual respect. Boards of directors should use it as a framework to lead their communities through conversations about difficult and complex issues, resulting in decisions that are informed and well balanced. To learn more and adopt the pledge in your community, visit www. caionline.org/civilitypledge. 

By adopting an approach to embrace tolerance of opposing views and compromise, community associations may advance their initiatives and gain the benefit of the intellectual capital possessed by their collective membership.

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(8-11-22)

Increases from Insurance, Inspections and Reserves Rattling Many Condominium Communities 

By Laura M. Manning

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(7-28-22)

Rules, Enforcement Are Keys to Reining in Bad Behavior, Promoting Safety in Community Pools

By Nicole R. Kurtz

In South Florida and the Treasure Coast, the pool is a popular and widely used community amenity. While community pools can be a great source of joy and relaxation for residents and their guests, they can also sometimes become a focal point of strife and confrontations.

Given the propensity for certain issues to arise, and in hopes of preventing them, associations are well advised to establish and enforce pool-use rules for their communities. Such rules, which should be comprehensive and cover a wide array of use and operations matters related to the pool and the pool deck including opening/closing times, guest capacity, noise, horseplay, swimwear, diving, smoking, drink/food, and more, are truly essential for associations to maintain order and diminish potential legal liabilities.

With the help of qualified community association legal counsel, who will always begin by checking an association’s governing documents to ensure it follows the prescribed process for adopting enforceable pool rules, associations should develop fair and reasonable rules that are designed to promote the efficient and safe use of the amenity. The goals and purposes behind every rule should be clearly evident from its very nature, and any changes and additions to the rules and their enforcement should be discussed with both experienced legal counsel and property management prior to implementation.

Recognizing that associations’ governing documents may require varying notice and approval procedures, the rules must be properly noticed and adopted before being enforced. Once adopted, many associations find it prudent to clearly post pool rules at the pool deck, and some associations may also be required to distribute copies of the rules to all owners and residents before enforcement. It further may be prudent for property management to personally visit new owners/residents to discuss the pool rules/enforcement, and to emphasize their importance to the community.

Enforcing the rules as uniformly and reasonably as possible is just as significant as the effectiveness of the rules themselves. Associations should allocate resources to the enforcement of their pool rules that are in commensurate proportion with the size of the community and its pool(s). The larger the community and pool, the more resources and enforcement measures should be considered as standard.

Again, association boards of directors should consult closely with qualified experts regarding the enforcement of their pool rules. In addition to onsite staff around the pool, associations may also be in a position to deploy cameras, lights, and motion/splash sensors to help provide 24-hour coverage.

To avoid potential legal liability, bear in mind that it is essential for pool rules to be enforced uniformly for all those using the pool. From first-time guests to owners who have lived in the community since its inception, the rules should apply equally to all. The consequences for those who run afoul of the rules should also be reasonable and uniform, and depending upon a community’s specific governing documents and whether a grievance committee has been properly established, they could include imposing fines and suspensions of pool use rights for set periods of time based on the nature of the infringement.

Even with the most effective and up-to-date pool rules and enforcement measures, incidents and disputes involving the use of the community pool will probably still arise from time to time. The key for associations and their boards of directors is not to overreact to any specific incident by making rash decisions and implementing unreasonably restrictive new regulations. By keeping a steady head, and maintaining adequate and uniform vigilance and enforcement, associations and their directors will be able to maximize the joy and minimize the headaches stemming from one of their community’s most beloved amenities.

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(7-14-22)

By Laura M. Manning

Community association board meetings are where the rubber meets the road for practically all association administrative matters. The agendas for these meetings and the minutes that ensue form a vital record of all the matters that have come before the directors of an association over the course of the entire lifespan of a community. Given the significance of the meetings, it is imperative for effective notes or "meeting minutes" to be kept to document all of the pertinent information from each and every official assembly.

As a general rule, meeting minutes should be thorough, but concise. They are not intended to be a transcript of everything said at a meeting.

Instead, the best approach is to start by listing the date, time and place of the meeting; listing the board members present/absent and additional participants such as the association property manager or attorney; and including the name of the individual taking the minutes. A copy of the agenda and notice should be attached to the minutes.

Once all of that is out of the way, the minutes should include a list of all the issues and reports that were presented and discussed at the meeting. For each issue which resulted in a motion, the minutes should include the exact wording of the motion, the names of the directors who made the motion and seconded it, and whether the motion passed or failed.

For the votes on motions, the meeting minutes need not include the name of the directors voting in favor or opposed, though board members could specifically request that their vote be noted in the minutes. Also, any board member who abstains from voting should be noted in the minutes.

For those tasked with taking the meeting minutes, bear in mind that minutes are not intended to be a record of all the viewpoints expressed on every matter that came before the board. The key is to be brief but comprehensive. Include a complete list of all the matters that were discussed, list any speakers, and conclude with any outcomes or decisions for each.

It is always best to prepare the minutes as quickly as possible after each meeting in order to send the draft to the board members and property manager while it is still fresh in their memory. Secure their feedback, edits and approval as quickly as possible, then finalize the minutes by entering them into the digital and paper files of the association’s official records.

The keeping and recording of community association board meeting minutes should not take a significant amount of time by directors and property managers. By taking the correct approach and recording concise yet complete minutes for each meeting as expeditiously as possible, associations can help ensure their official records are detailed and comprehensive.

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(6-30-22)

Examples of Common Community Association Director Conflicts of Interest

By Roberto C. Blanch

The directors of Florida community associations owe a fiduciary duty to make decisions and take actions that are in the best interests of the community they serve. However, they can sometimes fall short in this regard when their own personal interests come into play.

One of the most common conflicts of interest for an association director involves their role in the selection of outside vendors. If a vendor being considered for services by a community association is a director or officer of the association, a company that is owned/co-owned by a director or officer of the association, or a relative of such individual, then they are required to disclose the relationship in writing to the other directors and recuse themselves from the vetting and selection process.

An association’s property manager could take the lead in the evaluation and negotiation process to avoid any perceptions of favoritism or impropriety by any one particular director. Additionally, Florida law require that the proposed activity or transaction giving rise to the conflict, together with any related contracts and transactional documents, be attached to a board meeting agenda for consideration by the condominium association board as to whether to approve the transaction, notwithstanding the conflict.

Such contract must be approved by the vote of two-thirds of the directors present (excluding the director having the conflict). Further, at the next regular or special meeting of the condominium association members, the transaction must be included on the agenda and is subject to cancellation by a majority of the members present.

In addition to this area in which conflicts may arise, other activities by directors or association officers may present potential conflicts. For instance, approving projects that directly benefit one or any number of directors, while providing little if any benefits for other unit owners, may also pose obvious conflicts. Similarly, directors or officers may create other circumstances prone to conflicts when failing to adhere to uniform or standardized collections or rules enforcement measures against other members in the community.

In order to avoid the possibility of such potential conflicts of interests, associations should create and implement set policies and procedures for all debt collections and rule enforcement, and apply them uniformly to every case. Directors should also refrain from implementing any rules or restrictions for their own personal benefit and not that of the entire community or a substantial portion thereof. The rules and restrictive covenants for every community are in place to maintain set standards and promote harmony. Changes should only be considered if they help to achieve those goals for the community at large, and not for the benefit of a particular director or unit owner.

The state of Florida has laws aimed at curbing community association fraud and conflicts of interest. Directors who ignore these laws and take actions resulting in conflicts of interest are possibly putting themselves as well as their association in severe legal jeopardy. They should never succumb to such temptations, and if a potential conflict arises they should seek the guidance of highly experienced community association legal counsel to steer clear of any impropriety.

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(6-16-22)

Given Florida’s nickname as the Sunshine State, it is only fitting that solar energy would be the state’s most popular and effective source of renewable energy. In fact, according to the U.S. Energy Information Administration, renewable energy fueled approximately five percent of Florida’s in-state electricity generation in 2020, and almost two-thirds of that came from solar.

It appears to be a sure bet that rooftop solar installations will be growing in popularity in the years to come for homeowners across the state. For those who own properties in communities with homeowners associations, internet searches will quickly reveal that Florida associations are prohibited by law from blanket denials of such installations. However, that does not mean that they do not have a significant say in the manner and form of solar panel installations in order to maintain the community’s aesthetic standards.

The Florida Solar Rights Act protects homeowners who wish to install solar panels and other renewable energy devices on their property from outright bans. It provides that property owners may not be denied permission to install solar collectors and other renewable energy devices by HOAs or even local municipalities. The law expressly forbids binding agreements that limit access to renewable energy for dwellings.

However, the Act does allow for HOA architectural review boards and committees to determine the specific rooftop location where panels can be installed. Associations are therefore able to require homeowners to follow their set procedures for the prior review and approval of planned alterations and improvements. Review committees may request diagrams and information on the dimensions, location(s), and layout of proposed solar panels, including illustrations. They can also review and approve all the related wiring and electrical components, as well as the proposed height of the panels from the roof.

The Act provides that as long as a solar panel installation is "within an orientation to the south or within 45° east or west of due south if such determination does not impair the effective operation of the solar collectors," associations can decide where the panels will go.

This caveat in the law limiting associations’ ability to dictate the exact location of rooftop panels is very important for board and committee members to bear in mind. Their chosen location must not interfere with the system’s performance, so attempts to require that solar panels be installed at a spot where they are shaded by trees would be in violation of the Act.

Given the detailed and specific nature of this Florida law, the state’s courts have already issued several rulings protecting homeowners’ rights to lawful renewable-energy installations, and they are unlikely to look favorably upon HOAs that attempt to issue unreasonable restrictions and decisions over proposed rooftop panels. The stipulations in this law are not to be ignored by HOAs and their boards of directors, and questions regarding solar installations by homeowners should be addressed with the utmost caution and only under the guidance of highly qualified and experienced community association legal counsel.

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(6-2-22)

By Laura M. Manning

Many Florida condominiums are responding to new inspection and structural-integrity requirements from lenders and insurers by planning for projects to bolster and repair their aging towers. For such major construction projects, competitive bids are literally a must, as they are mandated by Florida law. However, for very small associations as well as for some other types of services and contracts, obtaining competing bids from multiple vendors is not required by state law.

In fact, for small condominium associations with 10 units or less, their owners may opt out of competitive bids with a two-thirds majority vote. For all other condominium associations, bids are required for any agreement for the procurement of goods and services that will exceed 5% of the association’s budget, with exceptions for contracts for the hiring of association employees, and contracts for attorneys, accountants, architects, community association managers, timeshare management firms, engineers, and landscape architects.

Additionally, in cases of an emergency or recovery from storms and other catastrophes, or if the vendor is the only provider of the goods or services being sought in the county where the association is located, competitive bids are not required.

While condominium associations are required to obtain competitive bids for materials, equipment and services that exceed 5% of the total annual budget, including reserves, they are not required to accept the lowest bid, and only two competing bids will suffice to meet the requirement.

There are also requirements under the state’s condominium laws for contracts to be in writing, and those for maintenance or management services must include a litany of specific provisions.

For condominium association boards of directors that are considering contracts for goods and services for their community, they would be well advised to begin by consulting with highly qualified and experienced association legal counsel regarding the bidding process and contract negotiation. Knowledgeable community association attorneys will be able to advise associations on how to solicit and vet bids, and conduct highly effective due diligence prior to any final decisions.

Our firm’s community association attorneys write regularly about important matters for associations in our blog at www.FloridaHOALawyerBlog.com, and we encourage association directors, members and property managers to enter their email address in the subscription box in the blog to automatically receive all our future articles.

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(5-19-22)

By Roberto C. Blanch

A recent case from Leesburg, Florida, illustrates why community associations should avoid issuing and using debit cards in the name of the association.

According to a recent report by Leesburg News (www.Leesburg-News.com), John Joseph O’Connor was arrested and stands accused of stealing nearly $3,000 from the Coachwood Colony HOA by making multiple ATM withdrawals with the association’s debit card shortly after he resigned as president. The transactions were discovered by the association’s new treasurer, who reviewed the bank statements after joining its board of directors and discovered nine unauthorized ATM withdrawals totaling $2,972.

The astute treasurer contacted the bank and was told that the debit card used for all the transactions was the one issued to O’Connor.

The Lake County Sheriff’s Office was notified, and a deputy questioned O’Connor who said he lost his wallet with the HOA’s debit card and had reported it to the bank. However, further investigation revealed that he had never reported the card missing, and ATM surveillance video proved to be incriminating. He was arrested and released on a $7,000 bond, and is scheduled to appear in Lake County Court on May 31.

The Florida legislature enacted a number of changes to the state’s laws in 2017 to add teeth to the criminal penalties and enforcement for community association fraud. These changes included a complete ban on the use of association debit cards by condominium association officers, directors and employees to eliminate any direct access to cash from association accounts. However, the legislature did not incorporate the restriction into the laws governing other types of community associations, such as HOAs or cooperatives. Unfortunately, as this case from Leesburg illustrates, the use of debit cards by some Florida community associations continues, to their detriment.

In addition to completely avoiding the use of debit cards issued in the name of the association, communities should also require multiple signors to withdraw/transfer funds or make changes to bank accounts, vendor contracts and insurance policies. They should also have multiple recipients (such as directors or officers) review each account statement monthly, and retain certified experts to conduct independent audits of all financial records on a regular basis. Associations should also maintain adequate insurance coverage against losses due to criminal malfeasance.

This and other recent cases from other parts of the state are serving as unwelcome reminders of the potential for theft, fraud and abuse in community associations. Boards of directors would be well advised to work in close consultation with highly experienced and extremely well qualified association legal counsel to develop and implement policies and protocols that can effectively thwart potential schemes.

Our firm’s community association attorneys write about timely and important issues for associations in our blog at www.FloridaHOALawyerBlog.com, and we encourage association directors, members and property managers to enter their email address in the subscription box in the blog to automatically receive all our future articles.

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(5-5-22)

By Laura M. Manning

Auto industry analysts are predicting that 2022 will be dubbed the year of the electric vehicle. High gas prices combined with a slew of new models from the world’s leading manufacturers are making EVs a very popular option for drivers, and the recently passed infrastructure bill includes $7.5 billion to build a nationwide network of rapid-charger stations along major highways.

However, for those who live in condominiums, EVs can present some serious logistical challenges. Charging EVs at owners’ designated parking spaces in large and congested parking garages is very difficult in most cases and practically impossible in some. That is because EVs can take 12 hours or more to achieve a full charge using a standard 110-volt domestic power outlet, so many owners opt instead to spend extra for the installation of specialized charging stations that do the job in less than four hours.

In order to address these challenges and facilitate EV charging in condominium communities, the Florida Legislature has enacted several new laws in recent years to address the installation of charging stations. The first of these was a 2018 law that prohibited condominium associations from preventing unit owners from installing an EV charger at their own cost and within the boundaries of their designated parking space. The law clarified that associations may require that installations comply with all applicable building codes, recognized safety standards, and reasonable architectural standards that it adopts. It also shielded associations from construction liens resulting from the installation of charging stations by unit owners, and it provided that the electricity consumed by the charger must be paid for by the unit owner.

Last July, the legislature took an extra step that will probably become more momentous than the 2018 changes over the course of the next several years. The new law clarified that the installation of shared EV charging stations for a community’s owners and guests can be ratified via a simple vote of a condominium association’s board of directors. It specifically precluded the addition of such community charging stations and designated EV parking areas from being considered a "material alteration" which would have required the vote and approval of the unit owners.

For most condominium communities, this model for accommodating owners and guests with EVs may prove to be the most viable and effective approach. The problem with having unit owners install chargers for their own personal use at their designated spaces is that many towers have inadequate electrical infrastructure to allow for such installations without it becoming exorbitantly expensive. EV charging stations require heavy-duty electrical cables and equipment that are capable of handling the high loads, and the metering and billing of their electrical consumption also requires additional equipment and expenses.

On the other hand, designated EV parking zones with chargers for use by all the unit owners and their guests is likely to appear to many communities to be a much more elegant and impactful solution. Such highly visible chargers are a very appealing amenity for the entire community, and they can have a significant positive long-term impact on owners’ property values.

Condominium association boards considering the addition of such chargers, as the new state law now provides, should initiate the process by contacting FPL or the community’s electric utility for its advice and input on the installation, capacity considerations and other logistics. They should then seek consultations and proposals from experienced contractors specializing in shared EV charging stations.

The information and proposals from these vendors should then be made available and discussed in the association board meetings. By hearing the thoughts and concerns about the charging stations and their cost-benefit analysis from all the owners at these meetings, and also allowing the contractors to attend them and discuss any important considerations, boards of directors can perfect their plans before finalizing them for a vote.

Many of the companies that focus on EV chargers for condominiums and apartment buildings are providing solutions to defray the costs of their installation over time via the paid usage from drivers. Some even also now have smartphone apps to enable users to pay for charging and receive alerts on the status of a vehicle’s charge as well as the availability of chargers.

The popularity of EVs is predicted to continue growing in the years to come, making shared community charging stations one of the most desirable new property features for the foreseeable future. Boards of directors should act now to consider whether the addition of an EV parking zone with shared chargers makes sense for their community.

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(4-21-22)

The Path Forward for Florida Condo-Safety Reforms

By Roberto C. Blanch

Florida’s legislature has received very poor marks for its failure to pass any condominium-safety reforms after the horrific Champlain Towers tragedy. Many condominium residents and association-industry members expected the state’s lawmakers would strike a deal on a bill to revamp Florida’s existing condo regulations by requiring periodic inspections of buildings.

Pundits and newspaper columnists are lamenting the fact that the two chambers ultimately could not agree on whether to require condominium associations to maintain financial reserves for major structural maintenance and repairs. Given the horrific tragedy that claimed 98 lives, not-to-mention the significant number of aging buildings across the state with potential structural deficiencies, it is no surprise that there has been an outcry after the legislature failed to act.

Taking into consideration that this year’s legislative session began just over six months after the collapse, the legislature’s inability to establish mandatory safety reforms and require specific funding conditions for condominiums throughout the state was actually not very surprising. The issues of high-rise structural inspections, condominium association financial reserves, and mandatory fire sprinklers have flummoxed lawmakers in Florida and other states for decades.

Florida’s legislators should now take the time to work through the difficult details of condominium high-rise safety reforms during the remainder of the year and the pre-session legislative meetings for the 2023 session. There may not be a one-size-fits-all solution for condominium buildings of varying heights and stages in their lifespan.

In the meantime, significant condo-safety reforms are being implemented by lenders via major changes in underwriting requirements. Government-sponsored Fannie Mae and Freddie Mac recently released new requirements for all mortgages with settlement dates on or after February 28, 2022, excluding from eligibility for acquisition any loans for units in condominium communities with what it considers to be critical repair needs.

With these new standards now in effect, many associations have already been struggling to comply with the new requirements from these quasi government agencies for lenders to have the condominium associations for mortgage applicants complete an eight-page form. The questionnaire asks association directors to attest to the structural soundness of their buildings. However, for towers in their teen years that have never conducted any kind of major engineering inspections, directors are completely unequipped to respond. Plus, consultations with their legal counsel would probably lead them to avoid making any such representations, given the potential exposure to legal liabilities.

Property insurers are also expected to begin implementing new requirements for structural reviews of aging towers as part of their appraisal and renewal procedures. In addition, Miami-Dade recently passed a new ordinance creating a public registry of financial documents and structural reports from practically all condominium associations in the county, and other counties and local municipalities may also implement new requirements of their own.

At the federal level, our firm’s other community association attorneys and I are encouraging members of the U.S. Congress in newspaper columns and outreach such as this to consider funding programs for low- or no-interest loans for associations in need of emergency funds for critical structural rehabilitations. As we have been noting, such loans could help to bridge the gap between associations with inadequate reserves and immediate needs for major remediations, as opposed to those for younger properties that have enough time to build their reserves for future projects.

Florida’s lawmakers should be highly encouraged by all their constituents across the state to not give up on establishing much needed condo-safety reforms. They should take this time to consult with experts, including engineering groups and local building officials, to work through the challenging issues surrounding inspection requirements and enforcement actions. By carefully considering the real-world implementation of reserve studies and funding levels for buildings ranging from those that are brand new to those that are 60-plus years old, they will be able to craft highly effective new standards for Florida that could become a national precedent.

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(3-24-22)

Boca HOA Sues Homeowner for  Dilapidated Property

By Michael Toback

For homeowners’ associations governing communities of single-family homes, one of the most difficult balancing acts to uphold is that of enforcement actions required against noncompliant homeowners over the physical state of their property. In the minds of many Americans, community associations have a negative perception and stigma for overzealous rules enforcement, but yet they cannot allow individual owners to flout important policies that help to maintain their communities’ property values.

After unsuccessful attempts to persuade an intractable owner to comply with the language provided in an association’s governing documents, the time may come to file a lawsuit against the violating member. While such action should not be taken lightly due to the potential costs and uncertainties of litigation, such lawsuits may be the only recourse left to associations facing obstinate owners who refuse to comply.

Such appears to be the case with a recent lawsuit filed by the Boca Raton Bath & Tennis Club HOA against homeowner Lynn Min for alleged violations of several provisions found within the community’s governing documents. The suit, which was covered recently by www.BocaNewsNow.com, states:

"Owner is in violation of the provisions cited [in the governing documents] by virtue of their Property being in a state of disrepair, including a lack of maintenance to the home’s structure and roof, the exterior of the Property needs to be painted, the sod needs to be replaced, and the irrigation system is defective and needs to be repaired."

The complaint also alleges that Min refused to participate in pre-suit mediation as required by Florida law prior to the filing of a lawsuit, and that she failed to comply with any of the association’s demands to bring her property into compliance. The complaint seeks injunctive relief to have the court force her to bring her property up to the community’s standards, as well as legal costs and other damages.

While it is always preferable to resolve these disputes without resorting to litigation, including participating in the pre-suit mediation process as required by Florida law, once such efforts have been exhausted associations should consider such lawsuits as part of their fiduciary duty to act in the best interests of all the owners in order to maintain their property values. Owners of homes in HOA communities are made well aware of all restrictions, rules and regulations provided for within the association’s governing documents prior to or at the time of their property acquisition. If an owner is unwilling to comply with such policies that are designed to maintain community harmony and aesthetic appeal, they should avoid buying homes in communities with such requirements.

When it comes to enforcement actions, it would be prudent for associations to seek the counsel and representation of highly experienced community association attorneys to guide them through the process. Our firm’s community association attorneys write about important matters such as this in our association law blog at www.FloridaHOALawyerBlog.com, and we encourage association directors, members and property managers to enter their email address in the subscription box in the blog to automatically receive all our future articles.

Michael Toback is an attorney with the law firm of Siegfried Rivera who focuses on community association law and is based at the firm’s office in West Palm Beach. The firm also maintains offices in Miami-Dade and Broward counties, and its attorneys focus on real estate, community association, construction and insurance law. www.SiegfriedRivera.com, www.FloridaHOALawyerBlog.com, (561) 296-5444.

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(3-10-22)

Condo-Safety Reform Bills Making Their Way Through Florida Legislature

By Laura M Mannning

The new condominium safety financing requirements from Fannie Mae and Freddie Mac have drawn a great deal of attention, but the Florida Legislature appears to be poised to go one step further in its response to the horrific Champlain Towers tragedy.

The Florida House and Senate are both moving forward with bills that would add new inspection requirements on condominium buildings. A bill that is now ready to go before the full Senate, SB 1702 would require condominiums that are three stories or taller and located within three miles of the coast to undergo initial inspections 20 years after completion and every seven years thereafter. Buildings in other areas would be required to be inspected after 30 years and every 10 years thereafter.

The Florida House has taken up its own version of the bill (HB 7069). Its proposal would require initial inspections to occur 25 years after completion, and buildings further inland would have their first inspection at 30 years. Additional inspections would be required every 10 years.

The House and Senate bills also include differences over reserve studies, which are used to determine the level of funds a condominium community needs to maintain in reserve for future renovations and repairs. The differences between the two bills are likely to soon be consolidated into a final bill for bicameral consideration.

The new federal loan requirements and the measures being discussed by the state’s lawmakers follow a number of reports issued by task forces from industry experts calling for reforms. The Community Associations Institute, the largest national organization representing associations, has issued several public-policy recommendations, and Florida’s top architecture and engineering trade groups as well as The Florida Bar have also completed reports and issued recommendations.

All of these organizations are focusing on reforms concentrating on reserve studies and funding, building maintenance and inspections, structural integrity, and records transparency.

As the proposals make their way through the legislature and lenders adopt the new federal loan standards, condominium associations should take a proactive approach by reviewing their current and future reserve funding as well as the status of any structural and life-safety elements that may require attention. Before the increased demands impact the pricing for their services, associations should act now to identify and retain highly qualified engineering, construction, insurance and legal professionals to beat the rush.

Our firm’s community association attorneys write about important and timely issues such as this in our blog at www.FloridaHOALawyerBlog.com, and we encourage association directors, members and property managers to enter their email address in the subscription box in the blog to automatically receive all our future articles.

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(2-24-22)

Access to Community Association Documents in Legislative Spotlight in Florida

By Laura M. Manning

The market for homes and condominiums throughout the South Florida region is now thriving, and many of the area’s community associations are seeing more document requests from prospective buyers than ever before. Florida law mandates associations provide certain documents to prospective buyers, and several bills are now being considered by the state’s lawmakers to increase access to association financial and engineering records.

Florida law dictates that associations must provide prospective buyers with the community’s declaration, articles of incorporation, bylaws and any related amendments, as well as the rules of the association. They must also provide them with a Q&A/fact sheet covering voting rights, use and leasing restrictions, fees and assessments, and outstanding litigation with liabilities in excess of $100,000.

These documents may be provided in hardcopy or digital forms, but digital records are preferred and can be prepared for easy access via a shareable weblink. The records must also be made available for scanning, copying or photographing, so hardcopies should also be available for use as needed. Only the "actual cost" involved in preparing and providing the documents may be passed on to prospective buyers, so there should not be any costs for cases in which only digital access is requested and provided.

Access to additional records such as meeting minutes, reserve studies, engineering inspections, and other materials are at the discretion of the association. If such additional records are being provided, an association is entitled to charge a reasonable sum of up to $150 for their preparation and procurement.

Associations are also seeing many records requests from their unit owners, who often receive requests from prospective buyers for additional information and documentation. Florida law even requires sellers to provide prospective buyers with a "governance form" with information on the role of the board of directors, meetings and notices, maintenance requirements, special assessments, voting rights, and records requests.

In response to the horrific Champlain Towers tragedy, several condo-safety reform bills are now making their way through house and senate committees during the current legislative session in Tallahassee. Some of these include measures aimed at expanding access to association records for prospective buyers, and The Florida Bar condominium law life-safety task force recently recommended access to engineering inspection reports for such prospects as part of its suggested reforms.

South Florida community associations should expect to continue seeing increased records requests as the real estate market continues flourishing, and new amendments to the state’s laws mandating increased access to financial and engineering/maintenance records may also be in store. Plus, the last thing associations should do is to needlessly hold up sales contracts for unit owners over missing documents.

Association boards of directors and managers would be very well advised to consult with highly experienced association attorneys to develop a set process and protocol for all records requests from prospective buyers as well as member unit owners. Responding to these requests should become routine, and any questions or disputes involving specific requests should be immediately referred to association legal counsel for resolution.

Our firm’s association attorneys write about important matters such as these in our blog at www.FloridaHOALawyerBlog.com, and we encourage association directors, members and property managers to visit the blog and enter their email address in the subscription box to automatically receive all our future articles.

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(2-10-22)

Homeowner’s Lawsuit Against HOA for Libel, Defamation Illustrates Dangers of Conflicts  Getting Personal

By Nicole R. Kurtz

When disagreements and disputes arise amongst those who serve on community association boards of directors, emotions can run high in light of the impactful nature of the decisions made by such directors. However, as association directors are duty bound to act in the best interests of their community and its owners, they should seek to avoid engaging in personal spats and attacks with one another and the owners that could lead to potential legal liabilities for the association.

One of the best examples of the dangers of public rows between association directors and unit owners is now playing out at the Porta Bella Yacht and Tennis Club in Boca Raton. As chronicled in a recent report from BocaNewsNow.com, homeowner Samuel Loff filed a lawsuit against the association premised upon an allegation that its board members made inappropriate and inaccurate accusations against him as part of a retaliation campaign.

The lawsuit alleges that the community’s board of directors retaliated against Loff for an email that he sent to them complaining about security shortfalls and announcing his candidacy for a board seat. Shortly after his email, the suit alleges that the board began accusing him of making unwanted advances to a female security guard, and it later put those accusations in writing via an email distributed to all the unit owners.

The complaint states that Loff’s initial email to the board highlighted broken doors and locks, and the lack of cameras and lighting in the community. Just days after his email was sent, the complaint alleges that the board first accused Loff of making unwanted advances to the female guard. Approximately one month later, the board allegedly distributed a mass email to the owners, which also included reference to the allegations against Loff.

Loff denies the board’s allegations, and he filed his lawsuit against the association in Palm Beach County in December. The complaint includes claims for libel, defamation, breach of fiduciary duty, and negligence. If the court decides in Loff’s favor, and if the board of directors is resultingly found to have acted with malicious intent against Loff, then the lawsuit could prove to be extremely expensive for the association; both in terms of damages to Loff and attorneys’ fees and costs.

From the detailed nature of the 28-page complaint, which includes exhibits containing communications from Loff as well as from the board of directors, it is a safe bet that this will be a costly litigation for the association to defend. However, it also appears that a lawsuit may have been less likely if the board of directors would have taken an alternative approach with respect to addressing their concerns about Loff’s alleged actions.

More specifically, based upon the claims referenced in the complaint, it seems that if the board of directors would have avoided making public accusations against Loff at its meetings and via emails to the owners, then the association may not be facing such a lawsuit, nor the resulting strain on the community’s resources. Any actions involving security personnel that may have required investigation would have been better handled by experienced human resources professionals, with confidentiality for the parties involved.

Furthermore, any subsequent proposed repercussions, based on the findings, should have been closely vetted by experienced community association and employment legal counsel, as applicable, prior to implementation. Allowing directors’ emotions to flare accusatory statements to be made only exposes associations to potentially dire legal consequences, as well as potential financial strains on an association’s resources as the Porta Bella owners may now know all too well.

To find the link to the complete article and the copy of Loff’s complaint on the media outlet’s website, visit the post for this article dated February 7, 2022, in our blog at www.FloridaHOALawyerBlog.com. Also, to automatically receive all our future articles, be sure to add your email address via the subscription box in the blog.

Nicole R. Kurtz is an attorney with the South Florida law firm of Siegfried Rivera who focuses on community association law and is a regular contributor to its condo and HOA law blog at www.FloridaHOALawyerBlog.com. The firm maintains offices in Miami-Dade, Broward and Palm Beach counties. She can be reached at 1-800-737-1390 or via e-mail at nkurtz@siegfriedrivera.com. www.SiegfriedRivera.com

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(1-27-22)

Important Takeaways for Community Associations from TV News Report on Rules Enforcement 

By Laura M. Manning

A report that aired in late November on 7News (WSVN-Fox) in South Florida focused on a local renter in a dispute with her condominium association over her motorcycle. While the property’s rules ban motorcycles, the tenant had apparently been explicitly told she would be allowed to keep and park her motorcycle at the property prior to signing her lease. Three years later after she’d been using and parking her motorcycle at the property without complaint, she received a notice from the association indicating that it had to go or it would be towed.

It appears that the tenant’s response was to call or email the TV station’s tip-line, and the end result was another thoroughly investigated and highly informative "Help Me Howard" segment by its senior reporter Patrick Fraser and long-time legal expert Howard Finkelstein.

The report chronicles how Alexa Polcyn had been allowed to use and keep her motorcycle at the property for over three years until the association suddenly began "hassling our landlord about it." She tells Fraser that she had noticed the restriction on her lease but was expressly told by the association that her motorcycle was not going to be an issue.

The association was apparently true to its word until three years later in late 2021 when it decided it would begin enforcing its motorcycle ban. It issued her a written notice that the motorcycle had to go, so the question for the station’s legal expert was whether the association could now change its mind on an exception to its rule that it had previously granted?

Finkelstein’s reply: "Whether it’s having a pet, painting a color or parking a motorcycle, an association that has given approval to violate their rules cannot force a resident to then follow the rule. In most cases, those people are grandfathered in, but the association can start enforcing the rules after giving notice. Meaning, in this this case, Alexa can keep her motorcycle on the property."

Armed with this legal input, Fraser contacts the landlord, who explains that Polcyn and her partner are wonderful tenants, but the association was now cracking down on its enforcement. The landlord notes that the rules also state residents can only have one vehicle, but they have both a truck and the motorcycle.

In order to resolve the matter as fairly and amicably as possible, the landlord and association apparently agreed to provide the tenants the time they needed to find a new apartment, and they also allowed them to terminate the lease with no penalties. Indeed, Polcyn states: "Thankfully, we found a very beautiful place. It’s absolutely gorgeous."

The report then concludes with Finkelstein explaining that an association can start enforcing the rules after giving notice, but that does not mean those who were allowed to break the rule have to follow them immediately. "For example, if they let you have a dog, they can stop you from getting a new dog but can’t make you get rid of your current dog," he explains.

Needless to say, Finkelstein is correct, and his statement is an important one for all community associations to understand. Rules enforcement by community associations requires uniformity and impartiality, together with sound judgment and the guidance of highly qualified legal counsel. Implementing a change or switching to enforcement of a rule that a resident or residents have been allowed to flout can be particularly challenging and troublesome, so it is always best to do so with a great deal of reason and restraint, and only in close consultation with highly experienced association attorneys. Otherwise, disputes could easily develop, and negative media coverage that diminishes property values for the entire community could then be just a quick phone call or email away for disgruntled residents.

Our firm’s other community association attorneys and I write about important matters such as this in our association law blog at www.FloridaHOALawyerBlog.com, and we encourage association directors, members and property managers to enter their email address in the subscription box in the blog to automatically receive all our future posts.

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(1-13-22)

Freddie Mac Follows Fannie Mae’s Lead with Strict Condo Life-Safety Loan Requirements, Another Sign of What’s to Come

By Roberto C. Blanch

As my fellow Community Association Counselor columnist Laura Manning-Hudson wrote in our last column, Fannie Mae’s new condo-safety financing requirements for condo buyers are now in place. Following suit, federal mortgage buyer Freddie Mac has also announced similar requirements for condominium loans to meet its standards for acquisition for its mortgage-backed securities for investors. Both of these changes are heralds of the stricter mandates that condominium associations are likely to see as a result of the horrific tragedy of the collapse of the Champlain Towers South in Surfside, Florida.

Freddie Mac’s new requirements, which take effect for all mortgages with settlement dates on or after Feb. 28, exclude from eligibility for acquisition any loans for units in condominium communities with what it considers to be critical repair needs. Subsequently, properties that have already identified elements requiring attention and begun their construction and remediation efforts may become ineligible until such repairs and renovations are completed.

The federal agency defines critical repairs as those that significantly impact a community’s safety, soundness, structural integrity or habitability, and/or that impact unit values, financial viability or marketability. These include all life-safety hazards, violations of any laws or ordinances, building code violations, fire-safety deficiencies, and others.

Loans for units in condominium communities with such deficiencies or significant deferred maintenance will not be eligible for acquisition. This will include structural elements that have the potential to result in or contribute to critical failures, and deficiencies involving the replacement of any material building components that are approaching, have reached or exceeded their typical expected useful life.

Freddie Mac will also evaluate special assessments to determine if they are necessitated for critical repairs by implementing a questionnaire for completion by condominium associations or their property management. Responses will require reviews and interpretations of association governing documents as well as a number of financial and insurance disclosures.

As Laura wrote in our last column, many mortgage lenders will now adopt these reviews and mandates from both Freddie Mac and Fannie Mae as part of their residential underwriting procedures, and the Florida legislature is also likely to address condo-safety reforms during the current legislative session that officially convened this week on Tuesday, Jan. 11. Additionally, a coalition of Florida building professionals has developed recommendations, and so has a Florida Bar task force as well as the Community Associations Institute, which is the leading national organization representing the interests of community associations.

Given Freddie Mac and Fannie Mae’s new requirements as well as the calls for similar new mandates from other sources, including of course from the state’s property insurance industry that is expected to also impose stricter standards for structural oversight and maintenance, the boards of directors and property managers for aging Florida condominium towers should consult with highly experienced engineering, financial, insurance and legal professionals to assess their current and future needs. By planning accordingly to keep ahead of the curve, condominium communities will be able to help avoid any disruptions that could have a negative impact on property values.

Our firm’s other community association attorneys and I write regularly about important matters for associations in our blog at www.FloridaHOALawyerBlog.com, and we encourage association directors, members and property managers to enter their email address in the subscription box in the blog to automatically receive all our future articles.

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(12-30-21)

By Laura M. Manning

The first major national condominium safety reform after the horrific tragedy of the collapse of the Champlain Towers South in Surfside, Fla., was announced in October when federal mortgage lender Fannie Mae said it will no longer back loans on units in residential buildings showing signs of structural deficiencies and deferred maintenance.

The federal mortgage underwriter’s new Temporary Requirements for Condo and Co-Op Projects are aimed at addressing the structural and financial health of buildings. The requirements mandate an in-depth review of safety, soundness and structural integrity conditions to determine a condominium tower’s eligibility. The end result will likely eliminate many thousands of condominium communities across the country from this vital source of financing for buyers.

Starting on January 1, 2022, Fannie Mae will no longer back and accept loans for condominium units in properties with significant deferred maintenance or which have been directed by a regulatory authority or inspection agency to make repairs due to unsafe conditions. Units in such buildings will remain ineligible for purchase by Fannie Mae until the required repairs have been made and documented.

The conditions and deficiencies that meet the criteria for disqualification include full or partial evacuations, damage or deferred maintenance that affects structural integrity, and the need for substantial repairs for one or more of a building’s structural or mechanical elements including the foundation, roof, load bearing structures, electrical system, HVAC, plumbing, and others. Also, properties that have failed to pass local regulatory inspections or recertifications will not be eligible.

Fannie Mae will also begin requiring reviews of all current or planned special assessments. It will scrutinize the reasons behind special assessments, their amounts and terms, and any additional documentation reflecting on the financial stability, viability, condition, and marketability of the project. For special assessments implemented to fund matters involving safety, soundness, structural integrity or habitability, the lender will require that all repairs be fully completed for communities to regain their eligibility. In addition, reserve funds and funding will also come into consideration, and properties that do not meet minimal reserve requirements will no longer be eligible.

Based on these new requirements, condominium communities can expect to see many mortgage lenders adopt similar reviews and mandates as part of their residential underwriting procedures.

In addition, all eyes will be on the Florida legislature for proposed new condo safety reforms when it reconvenes next month. A coalition of Florida building professionals has developed recommendations, and so has a Florida Bar task force as well as the Community Associations Institute, which is the leading national organization representing the interests of community associations.

Given the nature of Fannie Mae’s new requirements and the calls for similar new mandates from these and other sources, including of course from the state’s property insurance industry that is expected to also impose stricter standards for structural oversight and maintenance, now is the time for aging Florida condominium towers to take a proactive approach. The boards of directors for these communities and their property managers would be well advised to begin consulting closely with highly experienced condominium engineering, financial, insurance and legal professionals to assess their current and future needs, and begin planning accordingly to keep ahead of the curve and help avoid any disruptions that could have a negative impact on property values.

Our firm’s other community association attorneys and I write regularly about important matters for associations in our blog at www.FloridaHOALawyerBlog.com, and we encourage association directors, members and property managers to enter their email address in the subscription box in the blog to automatically receive all our future articles.

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(12-16-21)

HOA Effectively Responds to TV News Report Over Demand for Removal of Early Holiday Lights

By Roberto C. Blanch

My fellow community association attorneys at our firm and I have noticed an increased number of media reports about condominium and HOA disputes in 2021. Laura Manning-Hudson and I have written about a few of these in this column and our firm’s blog at www.FloridaHOALawyerBlog.com. Typically, these situations arise due to what may be characterized as an inadequate and ineffective response by the associations involved, and sometimes they are created by inadequate planning.

However, a recent report by NBC affiliate Channel 8 News (WFLA) in Tampa about a dispute over holiday lights at a local HOA provides a good example of the type of response that communities can offer to help mitigate difficult circumstances that may adversely affect the fabric of the community. The response by the association’s attorney in an on-camera interview with the station’s reporter goes a long way towards balancing the entire story, and it may even pave the way for a positive outcome that could be the subject of a future report by the station.

The station’s story chronicles how the Moffa family of the Westchase community hired a company to install holiday lights on their roof and front yard on Nov. 6. Mr. Moffa tells the station’s reporter that the early date was the company’s only availability, and he was unable to climb up on the roof himself.

As a result, he and his family are now facing fines for violating the Westchase Homeowners Association’s rules and restrictions, which state holiday lights cannot go up before Thanksgiving. The letter from the HOA, which he shares with the reporter, indicates the family could be fined $100 dollars a day, up to $1,000, if they refuse to remove the lights, which apparently is exactly what they intend to do.

"So is it holiday humbug, or just asking people to play by the rules," asks the station’s reporter.

In response, the story shifts to the association’s attorney, who explains that a neighbor complained about the lights, which were indeed then found to be in violation of the community’s rules. He notes that the restriction is intended to help prevent homeowners from leaving their lights up all year.

The association’s attorney then goes on to say that rules are in place to be followed, however the community’s board of directors is open to discussing change. He states that that if enough members of the community wish to change this restriction, he believes the Westchase association will listen to the residents and make changes.

The end result was a much more balanced and fair report for the association, which should be commended for considering options presented by its lawyer to achieve a balance between enforcement of association rules and the community’s possibly changing needs.

If the Westchase community would like to avoid disputes such as this one with the Moffas going forward, its board of directors should take this opportunity to open up for discussion and reconsideration at its next board meeting the restrictions against early holiday lights.

Our firm’s other community association attorneys write regularly about important matters for associations in our blog at www.FloridaHOALawyerBlog.com, and we encourage association directors, members and property managers to enter their email address in the subscription box in the blog to receive all our future articles.

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(12-2-21)

High-Rise Condo Safety Reform Recommendations Appear, But Most Florida Municipalities Awaiting Statewide Changes

By Laura M. Manning

Five months after the tragic collapse of the Champlain Towers South condominium in Surfside, Fla., several major organizations have developed a number of high-rise condo safety reforms and recommendations. However, most Florida counties and municipalities appear to be holding off in expectation of statewide changes to legislation during the next legislative session that starts in January.

The Community Associations Institute, which is the largest organization representing the interests of associations in the world, has issued a report with a number of public policy recommendations aimed at providing solutions for legislators addressing high-rise building safety. In addition, seven of Florida’s top architecture and engineering trade groups created a task force that has recommended re-inspections after 30 years with follow-ups every 10 years, and The Florida Bar has also completed the report and recommendations from its Condominium Law Life Safety Task Force.

CAI’s public policy recommendations cover the areas of reserve studies and funding, building maintenance, and structural integrity. The organization believes its recommendations should be considered for adoption into state law to support the existing statutory framework for the development, governance, and management of community associations. It is planning to release model statutory language in support of its policy recommendations.

In addition, federal mortgage lender Fannie Mae has released new project requirements for condominiums and housing cooperatives that will begin Jan. 1 for loans secured by units in high-rise buildings containing five or more attached units. The requirements place a heavy focus on structural and financial stability, and reinforces the importance of meticulous documentation of all appraisals, meeting minutes, financial statements, engineering reports, inspection reports, and reserve studies.

So far, only the city of Boca Raton has joined Broward and Miami-Dade counties by deploying its own safety inspection program. It plans to begin requiring structural and electrical inspections in January 2021 for buildings that are at least 30 years old, while Broward and Miami-Dade’s standards are 40 years.

Other changes that have already taken place include increased safety inspections in Miami-Dade County that have led to forced evacuations of several buildings, including a 138-unit condo in Miami and a two-story condo in Bay Harbour, along with the closure of the top floors of the 28-story Miami-Dade County Courthouse for repairs. The county is currently collecting inspection information for 40-year-old buildings and plans on posting it on its property appraiser’s website to increase transparency for residents.

However, most counties and municipalities are taking a wait-and-see approach in anticipation of the initial findings of the federal investigation into the causes of the Surfside collapse and the proposals from the state’s lawmakers as they begin to prepare for the upcoming legislative session that starts in January.

While municipalities are awaiting statewide changes, community associations would be well advised to take a more proactive approach by reviewing their current and future reserve funding as well as the status of any structural and life-safety elements that may require attention. Reforms are sure to come, and the best tactic is to get ahead of them by working with highly qualified engineering, construction, insurance and legal professionals to avoid failed building inspections and the potential for forced evacuations and emergency repairs.

Our firm’s other community association attorneys and I write regularly about important matters for associations in our blog at www.FloridaHOALawyerBlog.com, and we encourage association directors, members and property managers to visit it and enter their email address in the subscription box to automatically receive all our future articles.

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(11-14-21)

By Roberto C. Blanch

Yet another highly questionable decision by a Florida condominium association has made local TV news.

This latest condo dispute to make the local evening news involves a New Smyrna Beach, Fla., owner who was denied the transfer of another unit at the same property from her late husband to her after his passing. According to a report by Channel 9 News (WFTV-ABC), Joan Cotton was denied the transfer of the additional residence that her late husband Jeffrey had owned for more than a decade by the board of directors for the condominium association for the Village of Colony Beach Club.

The community’s governing documents apparently allows for its board to approve or deny the transfer or sale of units in the community for any reason. The Cottons owned two units in the community: a single bedroom residence under her name, and a two-bedroom condo under his name in which they both resided.

She received a notification from the association indicating that the board of directors has voted to deny the transfer, and instead it has entered into an agreement to sell the unit to a third-party buyer for $466,500. The letter included a check to her for an initial down payment of $5,000 from the hopeful buyer, but her attorney has vowed to fight the association’s decision and says the closing is never going to happen.

"I started shaking, I started to cry," Cotton says in the report. "It was horrible. You can’t just steal my condo!"

The community association’s attorney is also interviewed in the report, and she explains that it is very common for associations to have the right to deny transfers.

"I don’t know if it’s right or wrong, but they’re following their right to do that," she responds to the reporter’s question about whether the rejection is the right thing for the association to do in this case. However, she does note that if the matter goes to court, she is confident the association will prevail because it is simply exercising its rights as stated under its governing declaration.

Cotton’s attorney states that he’s never seen an association’s denial of transfer in a case such as this, ". . . because I think typically there would be a lot of concern if you turn someone down if you don’t have a very compelling reason for it."

He and Cotton believe the actual reason behind the denial may be retaliation. Cotton filed a lawsuit against the association over alterations to the common areas, and the parties reached a settlement just weeks before the transfer was denied.

"I don’t want to sell this," she pleads in the report. "My husband was so proud he was able to do this for us."

The provisions of condominium governing documents establishing the association’s right to reject a transfer of the title to a unit must be carefully analyzed because the law in Florida is well established that unreasonable restraints upon the alienation of property are disfavored. For instance, a declaration of condominium may provide a board the right to deny a sale or other transfer of a unit, but at times there are exceptions such as the transfer of title by last will and testament to the decedent owner’s beneficiary.

Additionally, to the extent that the surviving spouse resides in the unit being transferred, Florida law may protect her right to remain in residence at the property. Plus, the board’s actions might be subject to challenge as an unreasonable restraint given that the decedent owner’s surviving spouse was already residing in the unit and the facts of this case do not seem to suggest that there was any other factor rendering Ms. Cotton as an undesirable owner.

While the association’s attorney may ultimately be correct that the property’s governing documents grant it the power to deny such a transfer of ownership for any reason, obtaining a favorable judgment may be challenging for the association in light of the circumstances of this case. The allegations of retaliation for the prior lawsuit – if proven – are likely to carry a great deal of weight in court, and may impact the decision to be made by the judge or jury.

Association directors have a fiduciary responsibility to make decisions that are consistent with the provisions of their governing documents and Florida law, and preserve and protect the values and interests of their community’s unit owners. Community association directors would be wise to avoid making dubious decisions and should seek to reach informed and reasonable conclusions in an effort to avoid bad and costly outcomes for their communities.

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(11-4-21)

By Laura M. Manning

Florida’s condominium laws were amended earlier this year to require that new association bylaws provide for alternative dispute resolution including mediation and arbitration, for many types of disputes. Prior to these latest changes to the state’s laws, condominium associations and unit owners were required to arbitrate these same types of cases with the Division of Florida Condominiums, Timeshares, and Mobile Homes prior to going to court.

Arbitrations under the state agency were a prerequisite to filing suit for condo association/owner disputes that involved or required owners to take any action, or not take any action involving their unit, or to alter or add to a common area. Arbitration was also required for actions involving elections, meeting notices and meeting conduct, requests to inspect records, and condominium terminations.

Instead, the changes now allow condominium associations or unit owners to choose between the state agency’s hearing process or the pre-suit mediation process as required under the state’s HOA laws. All disputes involving elections and recalls must still go to the Division first.

What is the best choice for condominium associations: the arbitration process with the state agency that has been hearing such disputes for many years, or the pre-suit mediation process?

First, some condominium association declarations and bylaws include specific notice and alternative dispute resolution procedures that must followed prior to filing suit against an owner, so there may not be much of a choice in the matter for some communities.

For those that do now have options, they should take into consideration factors such as the the nature and severity of the dispute, and the timeframe for the resolution that they would like to follow.

The arbitration process with the Division of Condominiums typically takes several months to resolve, sometimes longer, after which the losing party still has the right to file an appeal in the circuit court by asking for a trial de novo (new trial).

The pre-suit mediation process provided for under the HOA Act requires those who are initially served with a demand for mediation to respond within 20 days or, if they wish to decline, the association can proceed with filing suit. However, those who fail or refuse to participate in mediation will be unable to recover attorney’s fees and costs in the subsequent litigation, even if they are ultimately the prevailing party.

Costs and legal fees are also important considerations. The arbitration process with the Division is similar to a court hearing process, so costs will be incurred. With the pre-suit mediation, associations will also incur costs, but the other party must pay half of the mediator’s fee. Generally, the pre-suit mediation process costs condominium associations less than the arbitration process with the state agency, and it is also likely to be quicker to reach a final resolution either via the mediation or subsequent litigation.

Condominium associations that wish to resolve disputes with their owners as effectively and reasonably as possible should turn to the guidance of highly experienced community association attorneys. Determining which course to take between the pre-suit mediation or state-agency arbitration will require a careful review of all of the factors and considerations that are at play in a given situation, and associations and their property managers would be well advised to consult closely with extremely well qualified attorneys for such decisions.

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(10-21-21)

Condo Association’s Denial of Gate Access Pass to 100-Year-Old Resident Draws Negative TV News Coverage in South Florida

By Roberto C. Blanch

My colleague Laura Manning-Hudson wrote about a dispute involving pet chickens that received unwanted TV news coverage for a Boca Raton HOA in our last column. To help illustrate just how common such negative media coverage has become for community associations that make questionable decisions, this week’s column also focuses on another report by a local South Florida station involving disputed community association actions.

The latest story is on a Hollywood, Fla., condominium association’s decision to deny a 100-year-old resident a gate access pass decal for her to use when she is getting a ride home. The report by 7 News (WSVN-FOX) in South Florida features an interview with Vangie Commeau, who lives at the Carriage Hills Condominium and is 100 years old. She tells the station’s Patrick Fraser that earlier this year the property cancelled the manned security guard at its entrance gate in favor of an automatic scanner that reads bar codes on window-sticker decals on residents’ vehicles to open the gate.

Because Commeau does not own or drive a vehicle, she did not receive a decal from the association. She tells the reporter that she brought it to their attention, but the association responded by declining to issue her a gate access decal pass.

This creates a burden for Commeau when one of her friends takes her to the doctor or to one of her monthly lunches with their friends, as she is unable to get their vehicle in through the residents’ gate when they return. She was told to use the guest lane and buzz one of her neighbors to let her in, but she notes that forces her to make an appointment with a neighbor a day ahead.

"I hate to bother people when it’s something stupid," says Ms. Commeau.

She suggests a simple solution: The association should give her a card with the bar code decal that she could display for the scanner to open the automatic gate in whichever car she is in.

However, the Carriage Hills board declined to give her the decal card. The report does not clarify why, but one can presume it is because the system is intended to link each individual decal to a specific vehicle for security and monitoring purposes.

The station’s legal expert opines that the association is legally obligated to come up with a reasonable accommodation for Commeau, and given the circumstances and documentation, I would agree. While the association presumably wishes to maintain its uniform policy of only issuing decals that are assigned to specific resident vehicles for security purposes, some flexibility in a case such as this to make an accommodation for Commeau would be an advisable decision.

The association’s actions may also be considered as unreasonable restrictions upon a resident’s right of access to the community given that the residents without their own vehicles appear to be unable to enter the community without depending upon a neighbor to grant them access. This could be compared to refusing to provide some residents with a key or pass code to enter the front door of a residential apartment or condominium building.

In this case, the board of directors could meet and consider whether the circumstances merit the granting of an accommodation to Commeau for a decal card.

Fraser, the reporter, even seems perplexed that the association failed to reconsider its decision. He notes that he and the legal expert have been doing these reports for the last 23 years, and they have never come across a case such as this in which they just don’t get it. "A 100-year-old wants a decal, just give it to her," he concludes.

See the following link to watch the complete report in the station’s website, as I am sure many people will be doing for the foreseeable future: https://wsvn.com/news/condo-wont-give-100-year-old-resident-decal-to-enter-complex/.

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(10-7-21)

Backyard Chicken Coop Draws HOA’s Ire and Negative TV News Coverage

By Laura M. Manning

When it comes to coverage of community association disputes, nothing seems to draw the media’s attention more than quarrels involving the forced removal of unapproved family pets and service animals. One of the most recent examples is a report by CBS-12 News (www.CBS12.com) on a Boca Raton family that is fighting to keep its chickens and backyard coop, which they have maintained for the last 10 years.

The station’s report chronicles how the Ashley Park Homeowners Association has given Damir Kadribasic and his family a 14-day notice to get rid of the birds or start facing a fine of $100 per day. Kadribasic has retained an attorney and apparently intends to put up a fight. He says he has had the birds for the last 10 years with no complaints, and he showed the station a petition signed by his neighbors demanding that the HOA allow the chickens to stay.

The family’s attorney says they were given a notice that consisted of a single sentence, and the association did not specify which bylaws were being violated. However, the station obtained a copy of the community’s bylaws, which do indeed state that only common domestic pets are permitted. To that, the owners’ attorney notes that the chickens are domestic because they are not being used commercially and are considered pets by the family. He also says that the HOA cannot selectively enforce its rules.

The station’s report concludes by noting that it asked the association for a response, but none was forthcoming. That was unfortunate for the HOA, because predictably the result was a one-sided report.

Understandably, rules enforcement can be very challenging for community associations to administer. It takes a complete commitment to resolving disputes as reasonably and fairly as possible with uniformity and impartiality in all deliberations and decisions.

Associations should always turn to a set procedure to find effective, reasonable and equitable resolutions based on all of the facts. All enforcement decisions should be based on reason, with the aim of finding fair resolutions that meet the community’s standards for the uniform and unbiased application and enforcement of its rules and restrictions. Any resulting fines and suspensions should always be reasonable and uniform with those for similar infractions.

Owners facing fines or suspensions for violations should be entitled to a hearing before a committee comprised of at least 3 other unit owners who are not board members or related to board members in any way. The committee is empowered to confirm or reject the fine or suspension imposed by the board based on the owner’s defense of their case.

The truth is that community associations to some extent have a negative perception for overzealous rules enforcement. Damaging media attention for measures such as the removal of animals that a family has had for more than 10 years should be considered a very real and likely possibility by association boards of directors, which have a duty to weigh all the factors that help to maintain a community’s property values and appeal.

By developing and implementing a fair and effective process for violations enforcement and dispute resolution, associations can help to reverse a negative perception and reinforce their positive image for safe and hassle-free living with exceptional amenities.

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(9-23-21)

'Reforms Following Surfside Collapse

By Roberto C. Blanch

The Community Associations Institute, the leading organization representing the interests of condominium associations and HOAs, is considering several policy reform recommendations on matters such as building inspections as well as reserve studies and funding in the wake of the devastating tragedy of the Champlain Towers South collapse in Surfside, Fla.

According to a recent post in its Ungated blog at blog.caionline.org, the organization’s Government and Public Affairs Committee convened a special meeting recently to hear the recommendations from three task forces on new public policy reforms as well as best practices and guidance for local, state and federal legislators.

The three task forces focused on building inspections and maintenance; reserve study and funding plans; and insurance and risk management. They have recommended that the committee focus on reforms such as having developers provide a preventive maintenance schedule for all components that are the responsibility of the community association, not just the components included in the reserve study. They also recommended baseline inspections and regular inspections based on specific intervals, the protocols for which can be found in the American Society of Civil Engineers’ Guideline for Structural Condition Assessment of Existing Buildings, and disclosures of the findings to homeowners, residents and local governments.

The task forces also recommended that the committee consider whether state laws should mandate regular reserve studies for all community associations, reserve funding, and the disclosures of reserve studies as well as current and projected funding during annual budgeting. They also suggested the consideration of authorizing association boards of directors to approve special assessments or the borrowing of funds without votes of the entire unit-owner memberships for emergency repairs and remediations.

Now that the CAI’s Board of Trustees and its Government and Public Affairs Committee, in addition to members of state legislative action committees, have been presented with the task forces’ public policy reform recommendations, the committee members and others in the organization are being invited to indicate their support or opposition. The Government and Public Affairs Committee will reconvene in the coming weeks to vote on the recommendations and present its final recommendations to the CAI Board of Trustees for consideration and vote.

Our firm’s other community association attorneys and I will be weighing in on CAI’s reform recommendations, and we have been honored to play a role in discussions with state and local lawmakers and policymakers over the reforms that should be considered. In addition to those efforts being made by CAI, other institutions or governmental bodies are analyzing options and recommendations in the wake of the tower’s collapse. For instance, the Florida Bar’s new Condominium Law and Policy on Life Safety Task Force is reviewing many of the laws that impact condominium association laws, and is taking testimony and recommendations from various professionals and other parties, in its effort to develop and recommend legislative and regulatory changes that aimed at preventing a similar collapse.

With certainty, significant changes and regulatory reforms are soon to come following the horrific tragedy of the disaster in Surfside. The structural integrity of buildings requires responsible and effective regulation, and my colleagues and I are honored to assist condominium association managers and directors take the steps recommended to protect the safety of the millions of residents who make their homes in condominium communities.

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(9-9-21)

By Laura M. Manning

Many community associations have the right to regulate and approve leases and tenants pursuant to their governing documents. However, some association boards of directors operate under the misconception that they can easily develop and implement new leasing restrictions via a board vote, or that they have the authority to approve or reject prospective tenants as they please without facing scrutiny for their decisions.

As I wrote in this column earlier this year in my article headlined "Suit Against Boca Condo Association Spotlights Importance of Governing Document Amendments, Filings," a lawsuit that was filed against a Boca-area condominium association highlighted the importance of properly adopting amendments to an association’s governing documents and recording them in the local court registry where the association is located.

According to the suit, the association’s new leasing restriction, which it apparently adopted via a simple vote of the board the directors, was never approved by the unit-owner members. The leasing restriction in the association’s recorded governing documents provided that owners were only restricted from renting units for terms of less than thirty days, which contradicted the new restriction that the board tried to implement on its own. If the allegations in the lawsuit hold up in court, the association could be forced to pay the plaintiff unit-owners’ lost rental income and legal bills.

This case illustrates just one of the many reasons why it is essential for community associations that are considering new lease restrictions to work in close consultation with extremely well qualified association attorneys. Highly experienced community association counselors can quickly ascertain if any proposed changes require amendments to the governing documents or whether they may be enacted by a simple board vote. We can also develop the exact language that should be used for implementation of new restrictions and any amendments to the governing documents, and many of us are also familiar with new online tools that help to facilitate votes of the entire membership that may be required for such amendments.

Some declarations and bylaws for Florida communities provide associations with a right of first refusal, enabling them to accept the same terms and conditions for any good-faith lease offer that a unit-owner receives and is willing to accept. This is different from approvals and rejections of prospective tenants, which should always be conducted under the careful guidance of qualified professionals to help avoid any potential legal and financial liabilities.

First, associations need to ensure that they meet the deadlines and procedures set for tenant reviews under their own governing documents. Boards also need to take precautions to keep the personal data and records obtained in all tenant applications secure, and they should be mindful to maintain any application fees consistent with the limits set under Florida law.

In addition, it is imperative for associations to base their decisions on legitimate factors as provided within the policies set forth in their governing documents.

In today’s age of short-term rentals and eviction moratoriums, there are many reasons for associations to wish to update their restrictions for lease terms and tenant reviews. By doing so under close consultation with highly qualified legal counsel, associations can move confidently to develop and implement the policies and protocols that make the most sense for their community.

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(8-26-21)

By Roberto C. Blanch

Without a doubt, the tragic disaster of the tower collapse in Surfside, Fla., has impacted condominium association boards of directors across the country. In addition to board members expressing grief for the 98 victims who lost their lives and their loved ones, many condominium directors have grown concerned over news of lawsuits filed against the association for the Champlain Towers South. Some are even wondering whether they may face any legal consequences and liabilities by virtue of their voluntary board service.

In response to the misconceptions that are now circulating amongst board members and those who may be considering serving on associations boards, there are several reasons why they should not be so concerned about potential legal liabilities. Rather than avoiding board service, the collapse of the tower should serve as a call to action for conscientious unit owners to become more involved and take on the responsibilities of becoming a director.

Board members that properly and responsibly carry out their fiduciary duty to their associations are typically shielded from liability under their community’s Directors and Officers liability insurance, which associations should have to defend and protect them from most lawsuits. Additionally, indemnification provisions found in the articles of incorporation of most associations and the Florida laws governing not-for-profit corporations should provide an additional level of comfort for individuals serving or interested in serving on their association board.

Essentially, directors who act in a reasonable manner and seek the guidance of qualified professionals should feel at ease that the above-described indemnity and insurance protections will shield them from liability, and that most legal actions taken against them should be covered under their association’s D&O insurance.

These protections safeguard board members who are performing their duties from personal liability for monetary damages for any statement, vote, decision, or failure to act provided same are made or taken consistent with the fiduciary duty with which all directors are required to adhere. The aforementioned protections should provide indemnification from liability unless the directors engage in wrongful conduct, such as violations of criminal law, transactions with improper personal benefits, willful misconduct, recklessness, or acts or omissions which are committed in bad faith, with malicious purpose or in a manner exhibiting wanton and willful disregard for human rights, safety or property.

Instead of becoming overly preoccupied with unwarranted concerns over legal liabilities, condominium association directors should focus on giving careful consideration to their buildings’ structural safety and financial health. As condominium boards begin reassessing their associations’ reserve commitments, they will need the guidance of dedicated directors who are willing to put in the time and effort to make difficult decisions and gain the approval of the unit owners for major repairs and structural remediations. All buildings deteriorate over time, so condominium boards of directors need to set aside funding on an ongoing basis to repair any structural elements that require attention.

The vital nature of effective board service for condominium associations was made horribly and tragically apparent by the Surfside collapse. Unit owners, especially those with special skills such as financial professionals who could serve as treasurers, should view it as a duty to serve on their community’s board of directors. They should ask themselves: Would I feel more confident playing this vital role myself or leaving it in the hands of others to do it for me?

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(8-12-21)

Covid Spike Fueled by Delta Variant Creates Renewed Concerns, Precautions for Florida Community Associations

The news of the spike in Covid cases in Florida and elsewhere fueled by the highly contagious Delta variant is causing many employers and organizations to revisit the restrictions and precautions put in place at the height of the pandemic. Community associations in Florida have been no different, as many are now returning to mask mandates and social distancing even for vaccinated individuals in accordance with the latest guidance from the Centers for Disease Control.

After the CDC first announced several weeks ago that vaccinated individuals could safely stop wearing masks, community associations in Florida and across the country began to ease mask mandates and re-open their amenities with little or no capacity restrictions. While life appeared to be returning to normal, especially for those who received the vaccines, the latest spike in Covid cases caused by the highly transmissible Delta strain illustrates that we are not completely out of the woods yet.

Community associations, just as all other private and public sector organizations in which people congregate, are taking notice of the renewed calls by the CDC and other sources to return to masking and social distancing. This is especially true for areas with high transmission rates such as Florida, which is now leading the country in new Covid cases.

Our attorneys understand that all communities are different, and all condominium associations and HOAs will wish to tailor their response to this latest wave of increased cases of Covid to meet their specific needs and desires for their residents and staff. Our firm’s other community association attorneys and I are advising our clients to follow the CDC guidelines and municipal mandates to help stop the spread of Covid-19 and the highly transmissible Delta variant in their communities. We encourage boards of directors that are considering the reimplementation of prudent precautionary measures and safety protocols to consult closely with highly experienced association legal counsel regarding any potential changes to their rules and operations.

Our firm’s other community association attorneys and I write regularly about timely issues for associations in our blog at www.FloridaHOALawyerBlog.com, and we encourage association directors, members and property managers to enter their email address in the subscription box in the blog to automatically receive all our future articles.

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(7-29-21)

By Roberto C. Blanch

The recent tragedy in Surfside, Fla., has significantly impacted our firm and the communities we serve. Our heartfelt thoughts and prayers remain with the victims and families affected by the Champlain Towers South collapse.

In the aftermath of this horrific catastrophe, many condominium association directors, members and managers have raised various questions concerning the safety and stability of their own buildings. Our firm’s other community association attorneys and I have been responding to many of these inquiries regarding the process of assessing building structural and mechanical elements, and undergoing any repairs and restorations as needed.

Because buildings age and mature differently, with possible conditions developing at different points of a building’s lifespan, associations must assess the structural integrity of their buildings and keep up with proper maintenance protocols, even in advance of the triggering of the 40/50-year recertification process. By doing so, associations can gather accurate snapshots of their buildings’ structural health, perform proactive repairs, and organize the funding necessary to move forward with large projects.

Many associations have never dealt with the decision-making and practical application that it takes to index a building or move forward with significant structural repairs. That is why it is imperative that they consult closely with highly qualified community association and construction attorneys with the necessary experience to help condominium associations navigate this process, which include:

• Vetting and hiring qualified vendors to examine buildings and perform necessary repairs.

• Evaluating engineers’ reports/findings.

• Developing plans for and properly implementing material alterations and capital improvements.

• Analyzing document requirements.

• Reconciling membership and attending meetings to discuss projects.

• Drafting meeting notices and preparing meeting packages.

• Determining special assessment requirements and the funding of reserves.

• Assisting with obtaining loans and appropriate insurance policies.

Life and safety issues in buildings should always be a priority for all associations. Having the right resources available can help condominium boards of directors to fulfill their fiduciary duties, ensure their buildings are adequately maintained and, most importantly, help keep their residents safe.

In the weeks and months to come, our firm’s other community association attorneys and I will continue our work with our clients, as well as our outreach to state and local lawmakers and policymakers, to share our insights and recommendations. We will provide updates and information on the reforms that are sure to come in our blog at www.FloridaHOALawyerBlog.com, and we encourage association directors, members and property managers to enter their email address in the subscription box in the blog to automatically receive all our future posts.

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(7-15-21)

Siegfried Rivera Attorneys Share Insights with Media, Lawmakers and Community Associations in Aftermath of Tragic Condo Collapse

By Laura M. Manning

The collapse of the Champlain Towers South condominium has been a human tragedy of unimaginable proportions, and the unspeakable grief and horror of its aftermath have been shared deeply by our law firm. Our attorneys and professionals extend our most heartfelt and very deepest condolences to all those who have been affected.

Our firm’s other community association attorneys and I have made helping condominium communities contend with construction defects a particular focus of our work. We believe reforms should be considered requiring engineers to report certain serious conditions to local building departments wherever they find them. This would take discretion out of the equation and immediately involve building inspections, permits being issued and repairs being completed. We also suggest there should be new federal/state government aid and/or low interest federally backed loans for condominium associations that now engage in major structural repairs.

Our attorneys are also concerned by the great deal of misinformation that is currently circulating over the legal liabilities of association board members. We note that lawsuits against a condo association are ultimately against the building’s insurer and possibly all of the unit owners, as owners can be held responsible for liabilities incurred by their association.

The firm’s other attorneys and I have been reaching out to our clients to remind them of the importance of prioritizing engineering findings and transmitting information to new board members and property managers, to focus on structural issues over aesthetics, and to properly fund reserve accounts for any necessary repairs.

Our firm’s attorneys have also been sharing our insights on these and other issues with major media outlets as well as some of Florida’s lawmakers and policymakers. The Sun Sentinel and Daily Business Review immediately turned to our board certified construction and condominium law experts for their input in the aftermath of the collapse. A front-page article in the Sun Sentinel that appeared in the Friday, June 25, edition titled "How to Know if Your Condo Tower is Safe" includes insights from my fellow firm shareholders Stuart Sobel and Roberto C. Blanch.

The article reads:

. . . Stuart Sobel, a construction lawyer who also works at Siegfried Rivera, isn’t certain an inspection would have exposed the problem that led to the collapse in Surfside.

"Without knowing what caused this collapse it’s impossible to say if they had done the certification last year, or five years ago or 10 years ago, that it could have been avoided," he said. "We just don’t know how it came about."

Can owners, buyers and tenants see the inspection results?

Once the inspection report is filed with the county, it becomes a public record, [Roberto] Blanch said. State condo law allows unit owners to obtain the reports from the association.

"A tenant or a prospective purchaser would be able to review that record as a member of the public," he said. . .

. . . Blanch said those [40-year recertification] concerns could be alleviated if owners were "proactive" about troubleshooting problems and fixing them. . .

. . . Sobel said the inspections "should be significant comfort" for residents. "These buildings are designed to last 75 years or longer," even the older ones.

"The overwhelming majority are perfectly safe," Sobel said. "Unfortunately when something like this happens — it’s just inexplicable.". . .

. . . Are buildings safer if they were built after Hurricane Andrew in 1992?

Sobel called Andrew a "paradigm shift."

"The code improvements since Andrew are dramatic remarkable and effective," he said, In the early 2000s, there were five hurricanes in one season and "one after the next caused no damage."’

But the suggestion that pre-Andrew buildings are more likely to falter is not a given. Sobel said he lives in a home built in 1948 that has persevered through decades of storms. The home is "structurally strong and structurally sound."

The complete article is available on the Sun Sentinel’s website.

Stuart was also quoted extensively in an article that also appeared on June 25 in the online edition of the Daily Business Review, South Florida’s exclusive business daily and official court newspaper, and subsequently in the June 29 print edition of the newspaper. That article, which focused on the first wrongful death lawsuit filed just a couple of days after the collapse, reads:

. . . Not everyone agrees the timing is right for a suit like this.

Construction attorney Stuart Sobel of Siegfried Rivera in Coral Gables says attorneys should slow down before rushing to file suit over a collapsed building. Sobel represented Miami Dade College in securing a $33.5 million settlement over the collapse of its parking garage while it was under construction at the school’s West Campus in 2012.

"You have a long statute of limitations. You don’t have to bring a lawsuit tomorrow. In my view, you’re doing it for publicity to get your name out there and get more business," Sobel said. "At its core, you have a burden of proof. You can’t just point your finger at somebody. You have to be able to prove that that person did something wrong or failed to do something right. There’s just no ability for anybody filing suits today to say that that’s the case."

Sobel noted engineers are able to forensically determine the cause of the failure and, instead, suggested letting insurance companies investigate first and make sure the claim is justified under the policy.

"They did it at the FIU pedestrian bridge that collapsed, Miami Dade College garage that collapsed, and they’ll do it here," Sobel said. "We will figure it out, but that’s going to take time."

Sobel lives 10 blocks away from Champlain Tower South and said his heart goes out to his neighbors and the first responders who have worked tirelessly to rescue survivors and recover victims.

"Their heroism is just inspiring," Sobel said. "You watch normal people doing what they’re doing, risking their lives without any recognition and any extra rewards. It’s just remarkable to me. You see it in the papers and on the TV, but when you see it in your own community it just moves me."

Thursday’s catastrophe shows it’s crucial for condo associations to take the 40-year recertification process seriously, according to Sobel, who suggests making changes as soon as an engineer comes back with recommendations. Sobel said it might also be in an association’s best interest to do a self-assessment.

"The fact that the law requires it after 40 years does not prevent a condominium association from self-assessing and making sure the building is safe," Sobel said. "Are there cracks that either merit investigation or are worrisome? If there are, don’t ignore them. I live in a single-family home. It should be no different."

There could be some tweaks to the certification process, according to Sobel, who noted that after Hurricane Andrew, building codes were changed dramatically to withstand more damage and ensure better safety for people.

"It changed everything. Roofs had to be tied down much more strongly, and construction was much more closely watched. As a result, the buildings have been much safer. That was in 1992," Sobel said. "I would expect that the same type of study of the 40-year certification and perhaps modifications of that will occur as a result of this collapse."

That said, this event is not something that everybody on a high-rise near the beach is going to have to worry about, in Sobel’s view, since 40-year inspections are generally effective.

"This doesn’t normally happen. This is extraordinarily rare," Sobel said. "It wasn’t an explosion, there was no trauma to the building, no lightning strike. You read about the possibility of spalling and the exposure of the building to the salt air. Well, that’s all gradual, but it’s not going to explain the sudden collapse of a 12-story building."

It could take years to uncover what actually went wrong, in Sobel’s experience. . .

The complete article is available on the Daily Business Review’s website (registration required).

The following week on Wednesday, June 30, the Daily Business Review featured an article in its online edition titled "Are Homeowners Associations the Bad Guy or ‘Ill-Equipped’ Volunteers?", and it quotes firm partner Gary Mars extensively:

. . . Attorney Gary Mars of the Siegfried Rivera law firm in Coral Gables is board certified as an expert in condo and community association law, and has helped associations contend with contractors and engineers over construction defaults. Although Mars said he respects the people who are filing the lawsuits, he agrees it’s too soon to tell who is at fault.

Mars says the condominium association board members, who are mostly volunteers, need to know their buildings. He says he will often ask sitting managers about their historical reporting, only to find they have no idea what kind of information that entails. But it’s information that could give a lot of insight into the health of a structure.

"There should be engineering evaluations that have occurred over time … They’ve been shelved and they’re not being looked at, but they’re a great snapshot as to the history of the property and, as things continue on through the lifespan of the property, you build off of that just like you would medical records for somebody’s person," Mars said. "That doesn’t happen most of the time. You replace managers, you replace board members in condos, and there’s really not a great source from a historical standpoint moving information to the current decision-makers."

One challenge a lot of associations face is balancing the needs of the condominium from a financial standpoint. At Champlain Towers South, many condo owners had just paid special assessment fees to begin building repairs.

"A modest building with big financial needs is really in a dilemma," Mars said. "How do we raise the capital to do the repairs? Sometimes the repairs can be in the millions of dollars and you have very modest unit ownership in regards to income levels. How do you balance that all out?"

There isn’t a great solution, according to Mars, but if possible, retaining a large reserve amount can help cover the cost of essential repairs.

"That may be an area where legislation may have some impact," Mars said. "There may be some abilities to have different types of loans available that may have some type of government backing that could provide some of these associations with the opportunity of acquiring funds to do this type of extensive, deferred maintenance."

Did the board drop the ball?

Since board members often have to rely on reports and do their own decision making, Mars said that can sometimes lead to mistakes when they interpret what they should and shouldn’t do when evaluating building conditions, their options and how to timely address issues.

While Mars said he isn’t sure if that’s the case here, he suggested taking some of that discretion away from board members and giving it to municipalities instead.

"So the engineers that would be retained may have to work with a municipality on certain issues and there should be time frames built in for the work to be performed," Mars said. "I think that may be another way so we’re not in a period where the building is aging and we now look at a 40-year period and there’s been little-to-no work done, and the situation is much more drastic than if there were some incremental repairs being performed throughout the course of the building’s aging." . . .

The complete article is available on the newspaper’s website.

In the weeks and months to come, our firm’s community association attorneys will continue our work with our clients as well as our outreach to state and local lawmakers and policymakers to share our insights and recommendations.

We also encourage everyone to consider supporting the Support Surfside fund, which is a collaboration involving the Coral Gables Community Foundation, the Key Biscayne Community Foundation, the Knight Foundation, the Miami Foundation, the National Basketball Association’s Miami Heat, and the Miami Heat Charitable Fund. Additional information is available at https://www.supportsurfside.org/.

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(7-1-21)

CAI Addresses Guidelines on Pools, Vaccines in Community Associations

By Roberto C. Blanch

The Community Associations Institute, the largest organization representing the interests of condominium and homeowners associations in the world, provides many excellent resources for association directors, members and property managers. One of the organization’s best online resources is its "Ungated" blog at www.blog.caionline.org, and two of its recent entries focused on some of the most important and ubiquitous Covid-related issues that are currently weighing on associations.

In the June 3 post, titled "Diving in: More community pools are open for the summer," pandemic-related pool rules and operations are discussed. The post is based upon a survey of roughly 1,000 members of the Community Associations Institute regarding their pool plans for 2021, and it revealed that only two percent of survey respondents plan to close their pools this summer season. This survey result is in stark contrast to the nearly 44 percent of CAI members who planned to close their pools during the summer season last year.

It is worth noting, however, that more than a quarter of respondents in the CAI survey were still undecided about their pool rules and policies for the remainder of the year due to ongoing coronavirus concerns. Additionally, forty percent of survey respondents confirmed they were planning to require residents to sign a liability waiver when pools reopen.

Regardless of whether an association board wishes to continue to keep pools closed for the summer, open pools, or perhaps even wish to consider requiring a liability waiver or other conditions for pool use, it is imperative that association boards work with qualified legal counsel to discuss, not only the pros and cons of each option, but also the best practices in effectuating the chosen option to protect the association’s legal interests.

CAI also posted a blog article pertaining to the COVID-19 vaccine titled "Calling the shots: Addressing COVID-19 vaccines in your community." This May 27 entry discusses how associations are addressing and discussing the COVID-19 vaccines with their residents. It notes that the vaccines continue to be a frequent trending topic in CAI’s members-only "Exchange" discussion forums, where several conversations have focused on whether to require proof of vaccination from residents to use pools.

The entry notes that the Centers for Disease Control and Prevention recently recommended a few strategies for discussions concerning the vaccines. These include:

• Listen to questions with empathy. The vaccines are new, and it’s normal for people to have questions about them.

• Ask open-ended questions to explore concerns. The questions should help you understand what the individual is worried about, where they learned any troubling information, and what they have done to get answers to their questions.

• Ask permission to share information. Once you understand questions and concerns, ask if you can provide some information from a source that you trust.

Visit CAI’s blog and other online resources on its website at www.caionline.org to read these and other complete articles on timely issues for associations.

As vaccination rates continue to rise across the country, communities are now returning to a version of pre-pandemic operations. To ensure informed decisions are made in this regard, our firm’s other community association attorneys and I urge association directors and managers to consult closely with highly experienced association legal counsel regarding any potential changes to their rules and operations pertaining to COVID-19 precautions.

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(6-17-21)

Suit Against Boca Condo Association Spotlights Importance of Governing Document Amendments, Filings

By Laura M. Manning

A lawsuit that was recently filed against the Prom-enade at Boca Pointe Condominium Associa-tion highlights the importance of properly adopting changes to an association’s governing documents and recording them in the local court registry where the association is located. If the allegations in the lawsuit hold up in court, the association for the Boca-area community could be forced to pay the plaintiff unit-owners’ lost rental income and legal bills.

According to the suit, the association is making up rules to prevent condo owners Gerardo and Ana Vizcaino from leasing their unit for a full year. The suit states that the association’s new rule, which it apparently adopted at an August 2020 board meeting after a simple vote of the board the directors, was never approved by the members by a formal vote.

Indeed, the suit alleges that the association president acknowledged in a notice to all of the unit owners that the board’s adoption of a rule restricting rentals to one tenant per 12-month period was invalid because it had not been approved by the unit owners via an amendment to the governing documents. The only restriction in the association’s recorded declaration pertaining to rentals states that owners are only restricted from renting units for terms of less than thirty days. No other restrictions are included in the recorded governing documents.

Amendments to an association’s recorded governing documents typically require a vote of the entire unit-owner membership, and sometimes minimum approvals of 2/3 or even 3/4 of the members are required for an amendment to be considered valid.

While these high thresholds make changes to recorded restrictions much more difficult to implement than via a simple board vote, that does not necessarily mean that such changes are not worth pursuing and in accordance with a community’s best practices and interests. Times change and communities evolve, and the current owners may now wish to further restrict rentals or implement other rules that require amendments to the governing documents and, therefore, a vote of the entire association membership.

In fact, this is just another of the many reasons why it is imperative for associations to work exclusively with highly experienced and qualified association legal counsel to avoid any missteps in their implementation of new rules and policies. Cutting corners to avoid costs and/or the serious challenges of conducting a vote and securing the requisite approval of the membership could lead to severe legal liabilities and exposure, in addition of course to having any such newly enacted rules and policies quickly declared null and void.

Experienced association attorneys should be able to discern if certain changes require amendments to the governing documents or may be enacted by a simple board vote – and the exact language that should be used for their implementation. Indeed, many of us are also familiar with all of the latest voting tools and techniques that associations are now using to implement changes to governing documents and conduct other votes of the entire membership. For example, Florida law allows for electronic voting for community associations, and new apps and websites such as OnrApp (www.onrapp.com) enable associations to plan and implement voting for all of the unit owners as efficiently and effectively as possible.

As this recent lawsuit indicates, the notion of implementing new rules that expressly contradict a community’s governing documents via a simple board vote and without the requisite approval of the membership is a losing proposition. By avoiding such misguided attempts to circumvent the system and always working in close consultation with extremely experienced and knowledgeable association attorneys, condominium associations and HOAs can develop and execute amendments and policies that are legally enforceable and in keeping with what’s best for their community and its owners.

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(6-3-21)

Additional 2021 Legislative Updates

This year’s legislative session proved to be a busy one, with a number of bills passed by the Florida Legislature that will impact community associations throughout the state. Our firm recently covered the passing of Senate Bill 72 in our blog , www.FloridaHOALawyerBlog.com. Also known as the Civil Liability for Damages Relating to COVID-19, the new law helps to shield associations from Covid-related lawsuits.

The following are summaries of additional bills that have passed the Legislature and, as of the press deadline for this column, are pending action by the Governor:

Senate Bill 630: Community Associations

Senate Bill 630 represents sweeping changes for Florida communities. These changes include allowing condominium associations to use the demand for pre-suit mediation process; increases the amount that can be charged for a transfer fee from $100 to $150; addresses insurance subrogation by clarifying that if a condominium insurance policy does not provide rights for subrogation against the unit owners in the association, an insurance policy issued to an individual unit owner in the association may not provide rights of subrogation against the association; and clarifies that associations’ emergency powers extend to health emergencies and includes holding virtual meetings and implementing plans based on advice from health officials.

The legislation also prohibits associations from requiring certain actions relating to the inspection of records; revises requirements relating to the posting of digital copies of certain documents by certain condominium associations; authorizes condominium associations and cooperatives to extinguish discriminatory restrictions; revises the calculation used in determining a board member’s term limit; and deletes a prohibition against employing or contracting with certain service providers. The bill also makes important limitations to homeowners’ association rental restrictions adopted after July 1, 2021 and provides that any governing document or amendment to a governing document enacted after July 1, 2021, in connection with certain rental restrictions will apply only to parcel owners who acquire the property after the effective date of the governing document or amendment, or to parcel owners who consent to the governing documents or amendment.

The bill also brought changes to condominium association websites, allowing them to make their official records available on mobile apps and now allowing both condominiums and homeowners associations to adopt rules for posting notices on websites and mobile apps, provided that electronic notices are still emailed to members who have consented to receive electronic notices. The bill also requires that notices of intent to record a claim of lien specify certain dates. It authorizes parties to initiate pre-suit mediation under certain circumstances; specifies the circumstances under which arbitration is binding; revises requirements for certain fines; revises provisions relating to a quorum and voting rights for board members remotely participating in meetings; revises the procedure to challenge a board member recall; revises the documents that constitute the official records of an association; revises the types of records that are not accessible to members or parcel owners; revises the circumstances under which an association is deemed to have provided for reserve accounts; and authorizes certain developers to include reserves in the budget. This act shall take effect July 1, 2021.

House Bill 463: Community Association Pools

This bill exempts private community association pools with fewer than 32 units or parcels from supervision by the Department of Health, except to ensure water quality. This act shall take effect July 1, 2021.

House Bill 649: Petition for Objection to Assessment

This act allows community associations to object tax assessments on its behalf or on behalf of their owners and provides the manner in which to do so. This act shall take effect July 1, 2021.

Senate Bill 56: Community Association Assessment Notices

This bill changes the notice requirement of a foreclosure action from 30 days to 45 days. It also specifies that invoices for assessments must be delivered to unit owners by first-class United States mail or electronically to the email address maintained in the association’s records. Prior to changing the method of delivering an invoice for assessments, associations must first deliver written notice of the change to the owner by first class mail at least 30 days before sending assessment and the owners must affirmatively acknowledge the change electronically or in writing. Prior to requiring payment of attorney fees related to past due assessments, a written notice (using the new form provided) of late assessment must be sent to delinquent owners by first-class United States mail providing a 30-day opportunity to pay without also having to pay attorney’s fees. This act shall take effect July 1, 2021.

House Bill 421: Relief from Burdens on Real Property Rights

This bill allows, under certain circumstances, property owners who have been burdened by government actions to keep their rights to make claims against governmental entities even after relinquishing title. This act shall take effect on October 1, 2021.

Senate Bill 1966: Department of Business and Professional Regulation

This act disqualifies board members from eligibility to run for the board if they are delinquent in their assessments only rather than other monetary obligations. The act provides that a person is considered delinquent if a payment is not made by the due date specifically identified in the declaration of condominium, bylaws, or articles of incorporation. Should a due date not be specified, the act determines the due date is the first date of the assessment period. It requires a board to adopt the annual budget 14 days prior to the start of the fiscal year, otherwise it is deemed in minor violation and the prior year’s budget will continue to be in effect until a new budget is adopted. This act shall take effect July 1, 2021.

House Bill 403: Home-Based Businesses

This law prohibits local governments from taking certain actions relating to the licensure and regulation of home-based businesses. However, whatever restrictions were already in place by an association, or those that are created in the future, will not be overridden or preempted. This act shall take effect July 1, 2021.

House Bill 483: Electronic Legal Documents

This act makes technical changes relating to remote online notarizations. It also modifies witnessing procedures and contains numerous clarifications. This act shall take effect upon becoming law.

Our firm’s other community association attorneys and I will continue to provide updates on any legislation that may impact the community association industry. To track these bills or read the full text of each enrolled bill, visit www.flsenate.gov.

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(5-20-21)

Preparedness for Community Associations

By Laura M. Manning

The Covid-19 pandemic has expanded the parameters and elevated the importance of disaster preparedness in community associations. Prior to the start of the 2021 hurricane season, community association boards of directors and property managers should reassess their disaster preparedness plans to ensure they are ready for anything and everything.

Some of the elements of a comprehensive disaster preparedness plan include detailed site plans, especially for large communities, a communications plan with all current contact information for board members and key staff/vendors, and an evacuation plan with information on public shelters as well as local gas stations and grocery stores with backup generators. Insurance information is also a must, and it should always include copies of all policies and information on claim-filing protocols.

The uncertainty caused by the pandemic also spotlighted the importance of unit-owner communications. Comprehensive disaster preparedness plans should include all current contact information and any other preparations necessary for outreach to residents via calls, text, email, and hand-delivered notices to all dwellings.

The contact information for all key vendors and professional service providers is also vitally important. As the coronavirus pandemic so dramatically illustrated, experienced attorneys, insurance agents, accountants and other highly qualified professionals proved to be invaluable resources for association directors to turn to for answers in a very fluid and evolving situation. Preparations should include outreach to these and other professionals prior to and throughout the course of an emergency to help ensure that an association’s actions and policies are legally sound and effectively executed.

Association directors and property managers, with help from highly experienced and qualified professionals, can make a significant impact prior to, during, and after public disasters by steering their community through the challenges of an emergency as deftly as possible. By developing and following a thorough preparedness plan that takes into account all the lessons learned from the pandemic, associations can be better prepared for anything and everything that comes their way.

Our firm’s other community association attorneys and I write about these and other important issues for Florida community associations in our blog at www.FloridaHOALawyerBlog.com, and we encourage association directors, members and property managers to enter their email address in the subscription box in the blog to automatically receive all our future articles.

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(5-6-21)

Florida Enacts Covid 

Liability Protections Law

By Laura M. Manning

The Florida Legislature made Covid-19 civil liability protections for businesses, healthcare providers, non-profits, and other organizations a major priority for the 2021 session, and on March 29th it became the year’s first bill signed into law by Gov. Ron DeSantis. SB 72, the bill that provides several Covid-related liability protections for businesses, healthcare providers, educational institutions, government entities, religious institutions, and not-for-profit corporations such as community associations, is now the law in Florida.

Under the new law, covered entities are shielded from civil liability for Covid-related lawsuits for monetary damages, injury or death so long as the allegations do not involve gross negligence or intentional misconduct. Florida community associations that have implemented measures to safeguard their residents and staff from the potential spread of Covid-19 and comply with local, state and federal guidelines are protected from liability for Covid-related lawsuits.

Individuals seeking to file claims for coronavirus-related injuries or death against covered entities will need to provide an affidavit from a medical professional asserting that they contracted the virus at the corresponding property. The claims must also demonstrate "clear and convincing evidence" of "gross negligence" — a high legal standard — in order to establish its validity. In order to prevail, plaintiffs will also be required to demonstrate in court that a defendant did not make a good faith effort to comply with public health guidelines.

The new law also sets a one-year statute of limitations for the filing of lawsuits from either the date of death, hospitalization or the Covid diagnosis involved in the claim, whichever is latest. It applies to claims that accrued before its enactment and within one year following the Governor’s March 29 signing, but it does not apply to lawsuits that have already been filed.

Community association boards of directors should continue to bear in mind that Florida remains under a state of emergency until at least June 26, though that date might change if the order is extended. Even with new vaccines rolling out across the country, health officials are warning of another surge in cases caused by diminished precautions and new variants of the virus that are even more contagious than the original strain.

Some Florida counties are still requiring facial coverings in places where people congregate, including community association common areas. Therefore, our firm’s other community association attorneys and I are encouraging boards of directors to continue to maintain prudent precautionary measures and safety protocols to help prevent the spread of coronavirus in their communities.

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(4-22-21)

Important Considerations for Community Associations’ Use of Security Cameras

By Roberto C. Blanch

Security cameras in community associations, especially in sprawling HOA communities with gated entries and considerable common areas, help to provide residents and guests with an added measure of peace of mind. However, there are important privacy considerations for associations seeking to install surveillance systems, and there are also questions about whether these systems may constitute material alterations that must be approved by a vote of an association’s membership.

In general, community associations are allowed to install and utilize security cameras to monitor their common areas. The most important limitation in their use is that the cameras should not be positioned to view areas in which residents may reasonably expect a level of privacy, such as restrooms, locker rooms, and private dwellings or backyards.

Another important consideration is whether the deployment of security camera systems constitute a material alteration which may require a vote of the association’s voting interest. Decisions over this issue in arbitrations before the State of Florida’s Division of Condominiums, Timeshares and Mobile Homes have held that security camera installations may be considered material alterations. Therefore, unless an association’s specific governing documents provide otherwise, they may first have to be approved by a vote of the owners, which in some cases may be at least 75 percent of the membership. Some association governing documents require less than the statutory 75 percent threshold to approve a material alteration, and some only require membership approval when the cost of the alteration exceeds a specific amount.

However, several arbitrations before the state regulatory agency hold that an association board of directors can approve security cameras when they are considered necessary to protect the common elements. These decisions indicate it is improper for associations to avoid membership approvals just because cameras would make it less likely for criminal activity to occur. Instead, an association must find that a demonstrated history of crimes in the community or its surrounding area necessitate cameras to help prevent and prosecute such activities.

The questions of monitoring, storage and access to the footage shot by cameras must also be addressed prior to their deployment. Monitoring by professional security services can be cost prohibitive for some associations, and the storage of the video recordings and restrictions limiting who could access the footage are important considerations for associations to resolve prior to installations. For example, some associations require a court-ordered subpoena for unit owners to request and view footage, and the policies on access to the footage should be communicated to all owners and residents.

Associations considering the installation of security cameras should first consult with experienced association legal counsel to evaluate all of these and other important considerations. After a careful review of all the pertinent information, including the corresponding elements of an association’s governing documents, qualified attorneys will be able to provide informed and authoritative guidance as to how to proceed.

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(4-8-21)

A Primer on Florida Community Association 

Voting by Proxy

By Laura M. Manning

Community associations often struggle with secur-ing a quorum, which is the minimum number of voting interests required to be present in order to conduct a meeting of the members, and this challenge has been exacerbated by the pandemic. One of the most effective ways for associations to secure enough votes from unit owners to achieve a quorum and conduct their business is through the use of proxies.

A proxy is a document that allows a designated individual to attend and participate in a meeting in place of a unit owner. Florida condominium laws provide that unit owners may not vote by "general proxy" but may vote by a "limited proxy" that substantially conforms with the form provided by the state’s Division of Condominiums, Timeshares and Mobile Homes.

Limited proxies for association votes must contain a specific statement of what the unit owner is voting on and how the unit owner is voting. A unit owner cannot vote on specific substantive questions by a general proxy, which can be used only for the purposes of establishing a quorum and non-substantive votes, e.g., the approval of minutes, adjournment or continuance of meetings, and other matters that do not specifically require a limited proxy.

Limited proxies are required to be used when voting on reserves, changes to financial reporting requirements, amendments to governing documents, or other matters requiring a vote of the entire association membership. There are also other specific limitations on the use of proxies, including that they are only valid for up to 90 days from the date of the first meeting for which the proxy was given and the proxy holder must be in attendance, in-person at the meeting.

There may also be additional limitations on the use of proxies contained in associations’ governing documents, so experienced association attorneys should be consulted to ensure that the use of proxies by unit owners complies with both the state’s condominium laws and the governing documents.

Members of association boards of directors cannot use proxies to vote at board meetings when the director is not in attendance. Only unit owners can use proxies to participate at membership meetings they do not physically attend.

Our firm’s other community association attorneys and I write about important matters for Florida community associations such as this in our blog at www.FloridaHOALawyerBlog.com, and we encourage association directors, members and property managers to enter their email address in the subscription box in the blog to automatically receive all our future articles.

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(3-25-21)

By Roberto C. Blanch

Community association collections of monthly dues and other monetary obligations from unit owners have been strained by the Covid-19 pandemic. Given that many families are now struggling with lost work and businesses, some associations have cut back on expenses wherever possible and carefully considered their collections options with debtor owners.

However, occasionally we learn of erroneous or overzealous community association collections efforts reported on local news outlets across the country, perpetuating a negative stereotype of associations being exorbitantly stringent.

One example of such a report appeared recently in the newscasts of WFTV Action 9 News (ABC) in Orlando and Central Florida. The station’s report chronicles how Mims, Fla. residents Cindy Decker and her husband were threatened with foreclosure by their HOA for a debt they claimed to not owe.

"They put me through hell," she says in the report.

The Deckers, who had raised six children in the home where they have lived for the last 26 years, say they fell behind on their association dues to the Lake Harney Woods Property Owners Association. They claimed that they eventually made good on their debt with the issuance of a check for $892 to cover everything they owed, but Cindy Decker said one month later the association filed a claim of lien against her home to collect the dues and fees that she had just paid.

The suit was filed by the association’s new law firm, but Decker had purportedly paid its previous attorney right before the switch. She claimed to have a receipt to show the full payment was received, but the new attorneys insisted she now owed $1,300.

Decker said she pleaded her case to the HOA’s board at a meeting to no avail. She states the HOA president blamed her for paying the wrong law firm and refused to end the foreclosure.

Decker hired an attorney, and the association was soon facing a claim that it violated the Fair Debt Collections Practices Act, a law which protects consumers from improper practices, abuses or harassment in connection with efforts to collect certain debts.

Eventually, the association and its new attorneys settled the case prior to going to trial to the tune of $33,000 in damages to Decker. While the association did not respond to the station’s requests for an interview or statement, it is our understanding that the new law firm released a statement saying its attorneys rely on information provided by others and issues arise on rare occasions.

While issues certainly do rarely arise, the circumstances from this case as presented by Decker in this news report describe what may be characteristic of errors in judgment that may be made both by associations and their legal representation. For instance, association boards, managers and legal representatives should carefully evaluate claims from owners stating they have paid the monetary obligations alleged to be owed to the association – particularly when the owner claims to have a receipt to prove it.

In cases such as the one presented in this news report, an association should consider resolving the circumstances which arise due to the payment made to its former law firm rather than compelling the owner to do so.

Apparently, as Decker’s narrative illustrates, the association’s alleged unwillingness to proactively resolve matters exposed it to potentially severe legal liabilities, so much so that it decided to settle for an amount which appears to be more than 25 times the amount it claimed the Deckers still owed.

Such media reports of associations going too far in their collections efforts, or their rules and enforcement measures, diminish the reputation of all communities governed by associations and exacerbate their negative image as being too harsh and severe. Community associations, their attorneys and property managers would be well advised to use reasonable and sound judgment in their collections and enforcement efforts, especially now when the courts can be expected to sympathize with Americans contending with the strains caused by the pandemic and the resulting economic fallout. By doing so, community associations may avoid the potential for costly litigation as well as damaging media coverage.

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(3-11-21)

Florida Condominium Association Director Term Limits Don’t Apply Until 2026

By Laura M. Manning

Amendments to the Florida Condominium Act enacted in 2018 provide that association board members may not serve more than eight consecutive years, unless they are elected by more than two-thirds of the voting membership or there are not enough eligible candidates to fill the board vacancies at the time of the election.

The initial guidance from the Florida Division of Condominiums, Timeshares and Mobile Homes under the Department of Business and Professional Regulation was unclear, but last summer it concluded that years of board service prior to the date that the law went into effect in July of 2018 did not count towards the eight years of consecutive service precluded by the new law.

Essentially, this meant that only condo association board members who serve eight consecutive years starting in or after July 2018 will be disqualified from additional service unless the specific exemptions are met. This clarification by the Division of Condominiums has helped to allay concerns by association boards with long-term members from prior to 2018, as those directors will have at least five more years of eligible service.

While some communities thrive under long-term board members, our firm’s other community association attorneys and I recommend that all those residing in communities with associations view board membership in the same vein as a civic duty. An effective board is essential for the financial and administrative wellbeing of associations, so all eligible unit owners should consider running for the board of directors as their contribution back to their community.

In no way are the responsibilities of serving as a director too complex and demanding for the capabilities and skillsets of most association unit owners. What it requires is their time and dedication, but not to the point where it becomes too daunting for the average owner.

Aside from the guidance of highly experienced association legal counsel, board members can also make ample use of authoritative online resources that offer the most vital information for associations. The Community Associations Institute, which is the largest organization representing community associations in the world, offers a great deal of helpful articles and guides at www.caionline.org. Also, our firm’s blog at www.FloridaHOALawyerBlog.com is one of the leading sources for information for community associations in the state, and we encourage association directors, members and property managers to visit it and enter their email address to automatically receive all our future articles.

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(2-25-21)

Charges Against Former Marco Island City Councilman for Condo Election Fraud Demonstrate Need for Careful Oversight of Association Elections

By Roberto C.  Blanch

Recent news reports chronicle the tale of a former Marco Island city council member who was charged with three counts of forgery of a ballot envelope and three counts of criminal use of personal identification information, which is third-degree felony, in his condominium association’s annual board of directors election.

The reports from the Naples Daily News and several Southwest Florida TV stations indicate Victor Rios, 78, was charged with forging ballots for the Belize Condominium Association election to remain a board member. Several ballots for the property’s March 2019 condo election were cast under the names of residents who testified that they had not voted in the election, and their signatures on the outer ballot envelopes were forgeries.

Complaints alleging election fraud were filed with the state’s Division of Condominiums under the Department of Business and Professional Regulation, and with the Marco Island Police Department. MIPD subsequently asked the Florida Department of Law Enforcement to investigate the matter because Rios was a sitting city council member at the time.

FDLE lab analysis eventually revealed a DNA profile matching Rios on the ballots cast in the names of the residents who had not voted. The ballot envelopes contained personal identification information of the victims, including their names, condo numbers, and forged signatures.

Rios turned himself in to the Jacksonville Sheriff’s Office Department of Corrections on Feb. 5 and has since been released after posting a $30,000 bond.

As these and other recent media reports illustrate, the changes to the state’s laws in 2017 to add teeth to the criminal penalties and enforcement for community association fraud seem to be helping to prosecute some perpetrators, but election fraud as well as theft and embezzlement continue to remain serious problems for some communities. Associations should work very closely with highly qualified and experienced legal counsel to oversee their annual meetings and elections, and they must be vigilant in monitoring for any potential election irregularities that should raise a red flag and require immediate attention.

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(2-11-21)

Bills Impacting Community Associations 

in 2021 Florida Legislative Session

By Laura M. Manning

There are several bills being debated by state lawmakers in the current legislative session that will impact Florida community associations. The most significant proposed legislation for associations is also one of the most important for many of the state’s businesses.

HB 7, which creates COVID-19 liability protections for Florida businesses and nonprofit organizations, including community associations, has cleared its first committee stop with an 11 to 6 vote. Its advocates contend the measure is a necessary component to Florida’s economic recovery. The Florida House Speaker has vowed to make the bill a priority. Its next stop is the House Health and Human Services Committee.

One of the other measures that community association industry watchers are tracking is HB 21. House Bill 21 revises the requirements for construction defect causes of action relating to certain violations, and revises provisions relating to the requirements for notices of claim, property inspections, and service of copies of notices.

There are also bills pertaining to vacation rental properties that seek to pre-empt local regulations with state laws governing rentals and establishing licenses for such units by the Division of Hotel and Restaurants under the state’s Department of Business and Professional Regulation.

A couple of bills have also been introduced that would impact community association assessment notices and authorize associations to extinguish discriminatory provisions from their governing documents.

Our firm’s other community association attorneys and I will continue to monitor the progress of these and other bills impacting community associations as they make their way through this year’s legislative session. We encourage industry followers to enter their email address in the subscription box in our blog at www.FloridaHOALawyerBlog.com to receive all of our latest articles.

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(1-28-21)

By Roberto C. Blanch

With the Covid-19 vaccines now rolling out across the country, there is hope that in the coming months gatherings of individuals who have been inoculated could safely take place. In the meantime, many community associations are continuing to conduct virtual meetings with attendees participating online or via telephone conference.

However, various provisions of the laws governing Florida condominium and homeowner associations raise questions regarding whether such virtual meetings are being conducted in a manner that is compliant with such laws. For instance, applicable condominium laws stipulate that annual meetings of the unit owners for board member elections must be held at the location provided in an association’s governing documents or, if none is specified, within 45 miles of the condominium property. This leads to the question of whether purely virtual annual meetings comply with the law.

The unprecedented circumstances arising during this pandemic has therefore caused many community association managers and board members to become creative – seeking to achieve continuity of association business vis a vis directors’ and members’ meetings, while seeking to balance the protections recommended by health care providers and organizations promoting social distancing. One example is that some associations, in an effort to ensure that a condominium’s virtual annual meeting complies with the law, have made arrangements for the board of directors’ meeting to convene physically on association property while allowing members to attend by Zoom or other platforms. In those cases, the unit owners have been provided with notice of such meeting, which has included the login and call-in information to enable all the association members to attend the meeting online or via telephone. In some cases, personal attendance by members has been prohibited and in others, the in-person participants could be limited to only the board members or perhaps a single board member, along with any necessary staff and legal counsel.

By contrast, Florida laws governing homeowners association annual meetings do not stipulate that they must be within 45 miles of the community. Rather, they simply provide that the meeting must take place at time, date and place that is specified in the association’s bylaws. Most HOA bylaws either require that the meeting be held within the county where the community is located, or they do not indicate a location.

The foregoing illustrates just a few creative approaches being implemented throughout many community associations, in efforts to allow for necessary business within those communities to continue while allowing for owner participation and awareness of same. With that in mind, other factors contemplated by applicable Florida laws which govern community associations, such as the declaration of emergency powers by boards and perhaps the adoption of electronic notice and voting options, should also be considered in efforts to strike the optimal balance between the need to continue with business as usual and the reality of having to do so in a landscape that is vastly different than it was at time during which the applicable laws were established.

Our firm’s other community association attorneys and I have been working closely with our clients to enable them to develop and implement processes and precautions to help with the transaction of association business in an open and effective manner during Covid-19. We encourage association directors and property managers to consult with highly qualified and experienced association legal counsel regarding their protocols to keep their communities as safe as possible during the pandemic.

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(1-14-21)

By Laura M. Manning

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(12-31-20)

By Roberto Blanch

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(12-17-20)

Immediate Attention, Cooperation by Local HOAs

By Laura M. Manning

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(12-3-20)

Community Associations Face Challenging Financial Considerations for Continued Fiscal Wellbeing During Pandemic

By Roberto C. Blanch

As new spikes in Covid-19 cases continue to unfold and communities seek to maintain their mitigation measures, the financial trials and tribulations created by the pandemic in condominium association and HOA communities throughout the country become ever more apparent. The continued proliferation of Covid-19 cases underscores that while many may be letting their guard down and growing fatigued as to the measures to protect against the spread of the virus, community association stakeholders should remain proactive and forward-thinking in order to best position their associations for the consequences that may arise due to the pandemic.

Some community associations have begun to experience the burden resulting from lower collections rates caused by strains on the job market due to the pandemic. While the exact impact on the many types of community associations may be unknown, it has been suggested that delinquency rates could exponentially increase. In response to such expectations, we continue to suggest that community association boards and manager should continue considering the development of acceptable uniform payment plans that may be offered to those who have lost jobs and businesses.

Similarly, some have proposed that community associations should also think about postponing discretionary improvements to community amenities until late 2021 or even 2022.

Other factors, whether pandemic related or otherwise, are also expected to burden community association finances. For instance, boards of directors should take a close look at their current and projected insurance and maintenance costs. Some communities may require more coverage, and premiums may increase due to recent hurricane and wildfire claims being encountered by the insurance industry, and some claims that are expected to be presented due to the pandemic. In addition to insurance cost increases, increased cleaning and sanitation costs are probably here to stay.

As these financial issues continue to play out in communities across the country, boards of directors should be transparent with their members about their fiscal outlook and how they are addressing it. Some difficult decisions will probably need to be made regarding association expenses and amenities; as such, some level of community feedback could prove helpful as directors and managers navigate these unfamiliar waters.

Just as community residents are adjusting to life under the new normal, association directors and property managers will need to take a proactive approach to adjusting some of their financial management strategies and decisions. By holding these discussions in the open during their board meetings and making informed choices based on reason and the counsel of highly experienced professionals, boards of directors will be able to demonstrate they are ready and able to make all the tough calls that are necessary to navigate the difficult financial straits that lie ahead.

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(11-19-20)

CAI Civility Pledge Can Help Promote Harmonious, Respectful Living in Communities with Associations

The contentious presidential election and political divisiveness of the months leading up to it caused the Community Associations Institute, the leading organization which represents the interests of communities with associations, to issue an important reminder. In its blogs and emails, CAI recently appealed to communities to promote civility and unity by adopting the organization’s Community Association Civility Pledge, which is a commitment to the following principles:

• Each individual must be accountable for his or her own actions and words.

• All interactions in the community should be civil despite any differences of opinion on a particular issue.

• A vow to respect all points of view and strive to provide a reasonable opportunity for all to express their views openly.

• Residents are engaged and informed.

• Residents review CAI’s Rights and Responsibilities for Better Communities.

This commitment to civility, as well as a commitment to having more engaged and informed residents, helps to promote community harmony and safety. In these uncertain times, fueled by deep political and social divisions along with continued Covid-19 precautions and exhaustion, an association’s efforts to maintain a thriving community that benefits from responsible and effective leadership is extremely important.

To officially adopt CAI’s civility pledge, the organization recommends distributing the document throughout your community, and announcing and publicizing the board meeting when the adoption will be considered. During the meeting, boards should explain why it is important and beneficial for the community, review and discuss the merits of the principles, solicit input from homeowners, and hold a board vote to adopt a resolution endorsing the Community Association Civility Pledge.

Afterwards, the organization encourages communities to share the news of the adoption of the pledge with their residents and include it in every association meeting agenda. CAI would also like communities to complete and submit the civility pledge form on the organization’s website, which will add the communities to its state-by-state list of those that have taken the pledge.

Go to https://www.caionline.org/ to learn more about CAI’s Community Association Civility Pledge.

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(11-5-20)

Now is Time to Reverse Negative Stereotype of Community Associations for Rigid Enforcement, Collections

By Roberto C. Blanch

The GEICO Insurance TV commercials featuring an over-the-top HOA rules enforcer named Cynthia who takes a chainsaw to a noncompliant mailbox are hilariously satirical because they ring a bit too true. Community associations have a negative image in the minds of many for perceived over-reach in their enforcement measures. Unfortunately for associations, this stereotype is exacerbated by occasional media reports about HOAs and condominium associations being hit with numerous complaints from unit owners about their overly stringent enforcement and collections practices.

One such article, which appeared recently in the pages of the Star Tribune daily newspaper, focused on the disputes taking place between homeowners and their HOA’s board of directors at the Heritage Park community in north Minneapolis. It chronicles how the association regularly sends violation letters and collects fines for what some residents see as minor infractions, and it includes an example of a homeowner who was ordered to remove parts of her garden or the association would do so and bill her for the cost.

The article reported that the association has filed liens and foreclosure actions during the pandemic against homeowners who have failed to pay fees and other costs on time, and more than a dozen homeowners are now organizing and calling for changes.

It concludes by quoting a letter from the association stating it is legally obligated to collect assessments, and it must use liens and foreclosures to enforce its collections if homeowners fail to pay.

News reports such as this perpetuate the negative perception that associations are overly strict and too rigid in their enforcement and collections efforts. The truth is that rules enforcement and collections measures can be very challenging for associations to administer, and those that do it best have found that it takes a complete commitment to resolving disputes as reasonably and fairly as possible with absolute uniformity and impartiality in all their deliberations and decisions.

For rules violations and disciplinary actions, associations should always turn to a set procedure to find effective, reasonable and equitable resolutions. These protocols may include board and/or committee hearings in which witnesses and others representing both sides discuss and answer questions regarding all the pertinent issues and facts. After all these considerations are weighed carefully by an impartial panel, a final decision may be issued imposing a fine or issuing some other determination, such as a mandate for the violation to be remedied.

In any event, community association directors and management should base decisions on reason, and they should aim to find fair resolutions that meet their community’s standards for the uniform and unbiased application and enforcement of its rules and restrictions. Any resulting fines and suspensions should always be reasonable and uniform with those for similar infractions.

Given the massive toll that the coronavirus pandemic continues to take on the livelihoods and financial wellbeing of many community association residents, boards of directors should also now consider all their options for the collection of unpaid fees and assessments. Some are even borrowing a page from the playbook of previous economic downturns by sanctioning uniform payment plans to assist owners who become delinquent.

With the help of qualified legal counsel and financial professionals, associations should consider responding to the financial hardships caused by the pandemic by creating payment plans that are uniformly available to assist all the unit owners who become unemployed. They should also take a hard look at eliminating, deferring or reducing any planned nonessential renovation projects or expenses for the coming year.

As the economic and social impacts of the COVID-19 pandemic continue to unfold, community associations should seize this moment to reverse the stigma of over-reach in their enforcement and collections efforts. By developing and implementing a fair and effective process for violations enforcement and dispute resolution, and also considering temporary measures to address a looming collections crisis, associations can chip away at the negative stereotype behind the HOA Cynthia commercials and reinforce their positive image for safe and hassle-free living with easy access to exceptional amenities.

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(10-22-20)

New Post-Pandemic Normal Calls for Community Associations to Reexamine Restrictions on Working from Home

By Laura M. Manning

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(10-8-20)

CAI’s New Status Check Guide Provides Timely Info for Community Associations Reopening Closed Amenities

By Roberto C. Blanch

After months of repeated emergency orders prompting the closure of amenities for community associations, condominiums and HOAs, it comes as no surprise that many community association stakeholders are in search for guidance related to the safe operation of their community facilities, including pools, fitness centers, tennis courts, social rooms and other shared features. Thanks to the Community Associations Institute (CAI), the largest organization representing the interests of community associations in the world, a complimentary new guide is available to provide boards of directors and property managers with a great deal of timely and helpful information.

The new booklet, which is titled "Status Check: A Reopening Guide for Community Associations," offers aid and support for associations contending with the challenges of reopening all their facilities. The guidance for the common areas and amenities is organized by risk level or reopening phase, enabling them to be applied in accordance with the current conditions throughout the country.

The guide and other resources in CAI’s interactive Coronavirus Resource Page also offer helpful templates that may be modified for use by individual communities. These include:

• A sample letter template to update residents about common areas and amenities.

• Common area signage templates.

• Guidelines for community association common areas, amenities, and operations.

Our firm’s other community association attorneys and I have been helping many associations to develop and deploy the best practices and protocols for the closures and reopening of their amenities and common areas. While CAI’s booklet is not intended to be the sole source to be used by community associations with regard to navigating the reopening and safe operations of their facilities, it does serve as a useful starting point from which associations and their managers may begin their analysis of how best to proceed with such efforts. The booklet contains provisos suggesting that association directors and managers should be mindful of considerations such as local orders or laws, as well as other factors, such as infection rates and specific facility-related concerns regarding the association’s amenities, when making decisions in the reopening process. Accordingly, we strongly advise all boards of directors and property managers to seek the guidance of highly qualified and experienced community association legal counsel regarding all the issues and questions specific to their communities in connection with the reopening process.

Many of our firm’s association attorneys are proud members and participants in CAI, and we salute the organization for providing this guide and other helpful resources for associations to meet the challenges posed by the new post-COVID 19 normal. For more information about the impact of COVID-19 and community associations, visit CAI’s Coronavirus Resources page at www.caionline.org/pages/coronavirus.aspx, which also includes a link to the new Status Check reopening guide.

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(9-24-20)

National Survey Finds Homeowners Overwhelmingly Satisfied with Their Community Associations

The new post-pandemic normal includes many changes that affect how communities operate, and a recent national survey conducted by the Foundation for Community Association Research serves as a timely reminder that Americans are overwhelmingly satisfied with their HOAs and condominium associations. The biennial nationwide survey conducted by Zogby Analytics is aimed at providing a better understanding of the experience of homeowners who live in communities with associations.

The 2020 homeowner satisfaction survey reveals that nearly 90 percent of those who live in communities with associations rate their overall experience as either very good (40 percent), good (30 percent) or neutral (19 percent). Nearly three-quarters of the respondents have attended board meetings, 71 percent believe their community’s rules help to protect and enhance property values, and 62 percent say they are paying the correct amount in assessments.

The respondents noted such association benefits as cleanliness and attractiveness, maintenance-free living, neighborhood safety, and maintaining property values as being among their most important advantages. The results for 2020 even saw an increase in satisfaction and appreciation of community association rules (four percent) and the role of the board of directors (five percent) over those of the 2018 survey.

The changes brought under the new normal in response to the COVID-19 pandemic have impacted practically every aspect of modern life, and community associations have been no exception. Associations have been forced to implement and enforce difficult rules and restrictions for maintaining social distancing and the wearing of face coverings, and close or restrict the use of shared community amenities such as pools, fitness centers and tennis courts in order to maintain safety and avoid the spread of the highly contagious and deadly disease.

Homeowner reactions and perceptions toward these measures have been polarizing in many communities, with some residents perceiving them as necessary precautions while others finding them to be too extreme. It will be interesting to see how these challenging changes to community operations will impact the results of the 2022 survey, but hopefully by then the nearly 75 million Americans who reside in communities with associations will have come to realize that the post-pandemic world has changed, and associations have helped to pave the way for safe and secure community living in the new normal.

The complete summary of the survey’s results is available at: https://foundation.caionline.org/wp-content/uploads/2020/07/2020HomeSatisfactionSurveyResults07.22.20final.pdf.

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(9-9-20)

Epic Dispute Over Driveway Design at Boynton Beach HOA Makes Local Headlines

By Laura M. Manning

Our firm’s other community association attorneys and I have all seen our fair share of disputes arising from unapproved property improvements in South Florida HOA communities over the years. However, the saga involving a diamond design in a homeowner’s driveway at the Equus community just west of Boynton Beach appears to be exceptionally combative, so much so that it drew the attention of the Palm Beach Post.

According to a recent article from the newspaper, the HOA has been trying to have homeowner Barry Rosenthal remove the decorative red diamond design for more than three years. Both parties appear to be very deeply entrenched in their positions.

In its lawsuit, the HOA claims the driveway design "was not in conformity with other approved driveway designs throughout the community." Rosenthal had it installed as part of his new driveway project in 2017 without obtaining the HOA’s prior approval, and he was subsequently fined $1,000 and lost his usage rights to the community’s amenities, which include tennis courts and a fitness center.

In the article, Rosenthal states that his case is "all about selective enforcement." He claims another resident has almost their entire driveway paved over with larger diamonds, and the HOA has done nothing to them.

"There are a lot of cliques here and if you are in the right clique, you get a free pass," he is quoted in the article. "An arbitrator told us at mediation that he never saw such selective enforcement. This is wrong. We have not yet had a trial. I can’t wait to get to court."

The HOA’s attorney states that Rosenthal knew what the rules and regulations were, and he needed to get association’s prior approval for the design. He chose not to, and now he has refused to remove the offending diamond shape.

The article also correctly notes that the party which ultimately prevails at trial will most likely recover their legal fees, which could run into the tens of thousands of dollars for a case that has already taken more than three years of litigation and mediation.

Cases such as these in which a rather simple dispute snowballs into an epic fracas between a homeowner and their community association over an unapproved property improvement are typically unfortunate for all the parties involved. Associations should always turn to a set procedure to find effective, reasonable and equitable resolutions for all such disputes. These protocols will typically include board and/or committee hearings in which experts from both sides discuss and answer questions regarding all the pertinent building code and aesthetics issues. After all these considerations are weighed carefully by an impartial panel, its final decision should be based on reason and aimed at finding a fair resolution that meets the community’s standards for the uniform and unbiased application and enforcement of its rules and restrictions.

Employing such dispute resolution procedures will not prevent all such skirmishes from ending up in court. However, for those cases in which litigation proves to be unavoidable, associations are bound to fare much better in the proceedings by being able to demonstrate that they conducted the entire process as reasonably and fairly as possible in a good-faith effort to find an acceptable resolution.

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(August 26, 2020)

Governor DeSantis Signs 

Emotional Support Animal Bill Into Law

By Laura M. Manning

Community associations in Florida contending with fraudulent emotional support animal (ESA) requests may get some relief. Governor DeSantis signed SB 1084 into law on June 23, 2020. The new law prohibits discrimination from housing providers to someone requiring an ESA, but also prohibits health care practitioners from providing information regarding a person’s need for an emotional support animal without having personal knowledge of the person’s need for the animal.

The law, which took effect on July 1, 2020, requires a patient to establish the need for an ESA by delivering to the housing provider supporting information from a licensed healthcare practitioner, a telehealth provider, or other similarly licensed practitioner, including an out-of-state practitioner who has provided in-person care or services to the patient on at least one occasion. Housing providers may establish a routine method for receiving and processing ESA requests. However, they cannot require the use of any specific forms, deny a request solely because the resident did not follow their methods, or request information that discloses the diagnosis or severity of the resident’s disability.

The law also makes the individual requiring the ESA liable for any damages done to the premises by the ESA. Finally, a person who falsifies information or written documentation as having a disability requiring the need for an ESA commits a misdemeanor of the second degree, punishable by law.

Our firm’s attorneys write regularly about timely and important matters for Florida community associations in our blog at www.FloridaHOALawyerBlog.com, and we encourage associations directors, members and property managers to enter their email address in the subscription box in the blog to automatically receive all our future articles.

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(April 20, 2020 and August 12, 2020)

By Laura M. Manning Hudson

While the full impact the novel coronavirus (COVID-19) will have on the economy remains uncertain, community associations are likely beginning to feel the financial crunch created by unpaid assessments — if they haven’t already. As unemployment rates continue to increase, and businesses struggle to stay afloat, this crisis will undoubtedly impact owners’ ability to pay. Given these hardships, many boards of directors are already considering waiving assessments in order to offer some comfort to their residents. But by implementing such a drastic initiative, would boards of directors do their association more harm than good?

Upon being elected, boards of directors have a fiduciary responsibility that requires them to place the welfare of the association above their own interests. This responsibility includes a duty of care, which imposes on boards a legal obligation to collect assessments and fund reserves. As a result, directors not only have a responsibility to implement a collection strategy, but they are also tasked with enforcing those policies uniformly. Therefore, it is not recommended that boards completely halt the collection of assessments or the enforcement of the association’s collections policy, as such suspension would not only result in a breach of the duty of care required but could potentially subject the association to significant financial distress. Instead, associations should find other ways to alleviate some of the financial pressure being felt by property owners.

Depending on the association’s governing documents, the association may have the ability to assess late charges and interest against delinquent owners. Instead of refraining from collecting assessments from owners, associations might consider waiving late fees and interest instead. Another recourse an association can use to help struggling owners is to work with them by offering a payment plan option before their unpaid assessments get out of control. The payment plan should serve the interest of both the delinquent owner and the association and should carve out clear terms such as the total amount due, the amount of the monthly payment, the deadline, and the consequences for breaching the agreement.

Associations should also consider trimming unnecessary spending. For example, there may be projects that are not urgent or were planned solely to improve the residents’ lifestyles or increase property values, such as redoing the landscaping. Projects like these can be costly, and temporarily postponing them can assist associations by putting them in a favorable position when bad debt starts to affect the community.

Keep in mind that when community associations have delinquencies that cause a strain on their operational accounts, they might find themselves forced to cut back on essential services, such as pool maintenance and regular landscaping. If that happens, some associations will be obliged to specially assess their paying members to make up for the deficit and be able to continue to maintain their community properly. If bad debt begins to become a real issue, associations may want to obtain a loan with their bank. However, associations should also be wary of predatory lenders or "deals" that seem too good to be true.

More so than ever, it is vital that boards of directors continue to diligently serve their member’s and community’s needs, while still supporting owners who are experiencing financial hardships. We encourage community associations to reach out to us to discuss different options, as solutions to these issues are not "one size fits all" and should be personalized to your community.

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(April 6, 2020 & July 29, 2020)

By Laura M. Manning-Hudson

Protecting the residents and management staff should be a priority for condominium association board members and property managers during the novel coronavirus (COVID-19) outbreak. Most management companies have already implemented their business continuity plan to ensure that there are no disruptions in services provided by associations and management. While it is important for management to be prepared to deal with the possible impact of this pandemic, it is also imperative that board members stay involved and consider having a preparedness plan in place for the association at large.

The first step a board of directors should take — and one that is often overlooked — is to designate an individual to stay informed on governmental updates by consulting reliable resources and signing up to receive alerts. Government and health department websites dedicated to providing COVID-19 updates, such as the Centers for Disease Control website, are typically the most reliable sources of information. In this ever-changing environment, guidelines and orders issued by local and state governments are continually updated, and it is important to ensure that the information which is being relied upon for vital decisions is the latest and most accurate available.

The next order of business is to have a clear communications plan in place. Effective communication allows both residents and management staff to stay informed about coronavirus updates, safety practices, amenity closures, and possible infections in the building. Boards should ensure that rosters are updated with the most current contact information for residents and building staff. They should also consider contracting with a third-party platform that enables secure communication between owners and management via email, texts or an app, should these capabilities not already be in use.

It is also important to understand that everyone has a role in the well-being and safety of their community. Therefore, it is essential to have management work directly with the board of directors while planning and modifying operations in response to COVID-19. Part of the plan should include: how they intend to handle a case where a resident or staff member becomes infected, how the message will be delivered to residents, and what safety precautions will be implemented to reduce the spread to others. These measures should be discussed with the association’s attorney to make sure the association is not running afoul of any laws or exposing itself to discrimination and/or violation of privacy claims.

Finally, and most importantly, staying on top of cleaning of supplies and procedures — and updating them as needed — will likely provide the highest return on resident health. Increasing the cleaning and sanitation of high-traffic areas and items that are touched frequently such as door handles and elevator buttons is essential. Shared workspaces such as valet stations and front desks should be cleaned regularly to avoid the spread of germs, and hand sanitizer dispensers should be placed throughout the common areas. A minimum of two months of essential and consumable supplies should be kept on hand, and cleaning supplies should be regularly restocked. A visit to authoritative health websites can provide guidelines for best practices and should be consulted.

By following the latest updates and implementing the recommended policies and protocols, condominium associations will be able to help prevent the spread of the deadly COVID-19 in their communities.

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(3-25-20)

How Should Community Associations Handle Meetings and Common Area Use Amid Coronavirus Outbreak?

By Roberto C. Blanch

The coronavirus pandemic has created a lot of uncertainty for community associations throughout Florida, especially concerning meetings and amenity use. Management professionals and board members are left struggling between protecting their residents by taking measures to limit the spread of the virus and continuing to conduct business as usual.

Of course, many community association stakeholders have raised concerns about the COVID-19 outbreak and the impact that it may have on our communities. In an effort to be informed upon the virus, directors and managers are urged to monitor the recommendations and guidelines published by the CDC and other qualified health professionals as the primary source of information and guidance. As we navigate these unchartered waters together, we also encourage our clients to stay calm and take rational courses of action to safeguard their communities and address situations properly while protecting their association from a potential claim.

As the CDC continues to encourage "social distancing," many associations are left wondering whether they should be moving forward with scheduled meetings. Board members and property managers should evaluate the importance of the action items being discussed or voted upon before making any determination on cancellations. Boards that are concerned about having in-person meetings should consider holding virtual meetings in conjunction with or in place of in-person gatherings, as applicable statutes for both Florida condominiums and HOAs provide the ability for directors to attend and participate in meetings by teleconference. Additionally, if communities are in need of membership votes on given matters, electronic voting may be rolled out in conjunction with the hosting of a members’ meeting on a web-based or virtual platform.

Social gatherings in clubhouses and recreational facilities are also a cause of concern. The thought of limiting the number of guests that residents may invite to the community or community-operated facilities – or trying to impose policies such as checking temperatures prior to allowing entry to the community – must be considered very carefully, as seemingly logical decisions to protect health and welfare within a community may infringe upon the legal rights of its residents. We further strongly recommended that association counsel be contacted prior to the implementation of any such restrictions or conditions to determine whether they may be implemented and, if so, the best manner to do so.

Overly restricting the use of common elements is something that should be carefully evaluated. Limiting the use of gyms, pools, meeting rooms and other amenities should be left to the discretion of the board of directors. Currently, the Florida Department of Health’s 24-hour hotline (1-866-779-6121) is impartial to the restriction of the use of community amenities.

Associations – especially those considering leaving their facilities open – should consider reaching out to their insurance providers to determine if there is any exclusion within their policy regarding bacterial and virus clean up or whether their carrier has issued any recommendations for the use of the common facilities and common areas. Memos should also be distributed to residents reminding them of sanitary procedures that should be followed after use of common facilities and cautioning them about the potential risk from using public spaces and equipment.

For those boards that decide to close all amenities, note that there may be a legal risk and potential challenge from residents involved with taking this action. Though Governor DeSantis declared a state of emergency, it is unclear as to whether boards can utilize the emergency powers provided to them in Chapters 718, 719 and 720 of the Florida Statutes to justify these closures. Some have suggested that those statutory emergency powers were enacted to assist in dealing with post-hurricane emergencies and resulting property damage, while others have suggested that they may extend to the types of "damages" that may result from the spread of the virus within the community. Regardless of what the board of directors decides, we encourage that all decisions be addressed at duly noticed board meetings, and we recommend that boards maintain reliable documentation from emergency management officials or licensed professionals to support their decisions.

Finally, while it may seem obvious, we advise that associations take every step possible to keep high trafficked areas clean and place hand sanitizers, to the extent practical, in lobbies. Further, steps should be taken to ensure that public restrooms, doorknobs, elevators, front desks, and recreational facilities are cleaned frequently. Management professionals and other personnel that are feeling ill should be discouraged from reporting to work. Lastly, emergency contact information should be updated for all residents and staff, specifically for those who might be particularly at risk.

We understand that there is a great deal of confusion and concern about what course of action to be taken in light of the circumstances. With that in mind, association directors and managers are encouraged to seek the legal opinion of their community association lawyers before making decisions some may consider to be risky, such as prohibiting social gatherings and closing gyms and other recreational amenities. As we all now hope, the coronavirus will move on quickly and the impact to public health will be limited as a result of the precautionary measures being implemented.

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(3-11-20)

HUD Issues New Guidance for Assistance Animals in Housing

By Laura M. Manning

Changes in public perceptions and levels of awareness of the issues surrounding emotional support animals have created a mandate for new state laws and federal policies. Earlier this year I wrote in this column about new measures being considered by the Florida Legislature as well as the U.S. Department of Housing and Urban Development. HUD has now released its official guidance for assistance animal requests and the responses to such requests by housing providers under the Fair Housing Act.

The federal housing agency reported that complaints concerning denials of reasonable accommodations for assistance animals have been growing significantly, and they now represent one of the most common types of FHA complaints that HUD receives.

The new guidance is intended to serve as a tool for housing providers and those with disabilities. It covers many of the best practices for providers addressing requests for reasonable accommodations for assistance animals.

The guidance should help to make it easier for housing providers and individuals requesting an accommodation to gain a good understanding of the applicable laws. For requests for emotional support animals in which the underlying disability may not be readily observable, HUD states that housing providers may request information regarding both the disability and the disability-related need for the animal, but they are not entitled to know an individual’s diagnosis.

The agency’s guidance also addresses websites that sell certificates, registrations and licensing documents for assistance animals to anyone who answers certain questions or participates in a short interview and pays a fee. The FHA enables housing providers to request reliable documentation when an individual requesting a reasonable accommodation has a disability-related need for an assistance animal, and the HUD guidance clarifies that documentation from such websites is insufficient to reliably establish that an individual has a non-observable disability or disability-related need.

HUD also notes that reliable documentation would, for example, come from healthcare providers who have personal knowledge of a patient and who confirm their disability and need for an animal.

The new guidance also clarifies the types of animals that may provide emotional support or other assistance. It makes specific distinctions between animals that are typically found in households, such as dogs and cats, and unique animals that are not typically found in homes, such as livestock. Accordingly, those who are seeking a reasonable accommodation for a unique animal will face a substantial burden in demonstrating how it directly meets a disability-related need.

Legitimate requests for ESAs by disabled residents should be accommodated and protected by state and federal laws, but this new HUD guidance as well as a bill that is currently being considered by the Florida Legislature represent important measures to address how requests are verified and fraud may be prevented.

Our firm’s community association attorneys write about important issues for associations in our blog at www.FloridaHOALawyerBlog.com, and we encourage association members, directors and property managers to submit their email address in the subscription box in the blog in order to automatically receive all our future articles.

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(2-26-20)

Property Manager Steals Hundreds of Thousands of Dollars from Two South Florida  Condominium Associations

By Roberto C. Blanch

As documented in a recent report in the Miami Herald, the property manager of two Sunny Isles Beach condominium towers has been arrested for stealing hundreds of thousands of dollars from the associations for the properties.

Property manager Georgina Pineda was booked into a Miami-Dade County jail recently, and apparently it wasn’t her first brush with the law involving association theft and fraud. This time, court documents allege she stole hundreds of thousands of dollars from the Eden Roc Condos, which she had managed since 2017. The documents indicate that much of the money went to feed her gambling habit at the Miccosukee casino.

According to Sunny Isles police, Pineda had access to the condo association’s debit card. She was supposed to use it only for small expenditures for the community, but when the association board demanded a full audit she "continually made excuses as to why she was not providing accounting reports."

The arrest report also states that when Pineda finally provided a spreadsheet, it was missing numerous transactions — including withdrawals at the Miccosukee casino in West Miami-Dade. In addition, she was regularly transferring association funds into her own independent business account.

When she was confronted by the Eden Roc association president with the fact that hundreds of thousands of dollars were missing from the association’s coffers, Pineda admitted that she had a serious gambling problem and asked for time to pay the money back.

Similarly, Pineda also stands accused of stealing between $150,000 and $400,000 from the King David Condominium, which is another Sunny Isles Beach community she managed.

It appears that the manager of these two condominium properties was able to syphon the funds from the associations’ bank accounts via the use of debit cards. In fact, as my colleague Laura Manning-Hudson wrote in her 2017 post on our firm’s blog at www.FloridaHOALawyerBlog.com, the Florida Legislature has adopted legislation prohibiting association officers, directors and employees from using debit cards issued in the name of the association. This legislation was aimed at protecting against dishonest individuals having access to cash from large association bank accounts. However, while the restriction on the use of debit cards limits direct access to cash that condominium associations may have in their accounts, associations may still obtain and use credit cards issued in the association’s name.

The foregoing cases also demonstrate that while they have been prohibited for condominium associations, the use of debit cards by Florida associations may continue to some extent. Given the susceptibility to fraud and abuse presented by debit cards, condominium association directors should avoid using them altogether. Instead, while not guaranteed to eliminate fraud or misuse, associations should limit themselves to using only credit cards on a very restricted basis.

As Laura recommended in 2017, if an association’s directors insist on having a credit card issued for the association, we suggest allowing only one card to be issued, keeping a low limit on the card, paying it in full every month, and implementing measures to account for verification of its use on a periodic basis between statement periods. For instance, associations should conduct monthly reviews of all bank and credit card statements by at least two people, ideally including both a board member and management staff. There should be an annual audit by experienced and reputable accountants to provide a careful review and independent certification of the validity of all financial records, and associations should also consult with highly experienced accountants and attorneys to discuss and implement other protocols to help avoid what occurred at these South Florida condo communities.

The changes enacted under Florida’s 2017 condo fraud laws were aimed at giving law enforcement a mandate to take cases of association fraud extremely seriously and allocate all the available resources to prosecute them. Florida associations must make effective use of the proper safeguards, and those that do become victimized are now better equipped to engage law enforcement.

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(2-12-20)

Compulsive Vulture,

Alligator Feeder Settles for $53K with HOA

By Laura M. Manning

Readers of this column may recall my recent article about a resident of the Ibis Golf and Country Club community in western Palm Beach County who was creating an incredibly dangerous and destructive situation by feeding extraordinary amounts of food to vultures, alligators and other wildlife behind her home. On Wednesday, Jan. 15, the homeowner agreed to pay $53,000 to settle a lawsuit brought by her community’s association.

In addition to the payment for the association’s fees and fines that is due by Feb. 14, Irma Acosta Arya was also permanently enjoined from any further feedings, meaning the court has issued an injunction against her prohibiting any future feedings under severe criminal and civil penalties.

According to a follow-up report on the case in the Palm Beach Post, the payment and injunction represent a great relief to the residents of the gated golf community, which borders a nature preserve in western Palm Beach County.

The suit alleged that Acosta Arya’s constant feedings of large quantities of food since 2016 attracted highly destructive flocks of vultures, which would vomit and defecate all over the community and neighboring properties, along with raccoons, alligators and a bobcat. The judge initially issued a temporary injunction to prevent any further feedings, and he found Acosta Arya in contempt of court in December for violating the injunction after the association presented photos allegedly showing her feeding animals behind her house in recent months.

The newspaper’s reports also state that her neighbors have seen her feeding finger sandwiches and raw chicken to the wildlife. They also say they have found many large empty bags of dog food in a recycling bin near her house, but she does not have a dog.

Last year, the feedings led to huge flocks of hundreds of large black vultures, which would break in to neighbors’ screened pool enclosures and destroy their patio furniture and barbeque grills. The feces and vomit from the vultures also created an unbearable stench.

The association for this community should be commended for involving law enforcement early in the process by alerting the Florida Fish and Wildlife Conservation Commission, which issued fines against Acosta Arya and setup night-vision cameras to capture images of her nocturnal feedings of an alligator last year. The association also sought and secured an injunction.

Acosta Arya’s violation of the court’s temporary injunction was surely instrumental in enabling the association to secure the quick settlement and permanent injunction. Hopefully, by moving quickly on both the law enforcement and civil fronts, the community’s residents will now rest easy without fear of any further wildlife feedings by their neighbor.

Our firm’s community association attorneys write about important issues for associations in our blog at www.FloridaHOALawyerBlog.com, and we encourage association members, directors and property managers to submit their email address in the subscription box in the blog in order to automatically receive all our future articles.

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(1-29-20)

Considerations for Practical Parking Solutions in Congested Communities

By Roberto C. Blanch

The topic of parking within community associations is oftentimes the source of much consternation. The limitation of parking spaces in HOA and condominium association communities – whether real or perceived – may result in volatile and contentious situations for community association stakeholders. Homeowners, property managers and directors alike are confronted with concerns about the manner by which vehicles are parked; the number of vehicles residents choose to park within communities; the number of guests an owner may have at one time parking their vehicles within a community; the duration which vehicles may be parked; the types, appearance and size of vehicles parked within a community, and the locations in which residents or guests choose to park vehicles within a community.

In order to address these concerns, community association directors typically adopt rules and restrictions governing how, when, where, how many and what types of vehicles may be parked in the community. However, unit owners can become very frustrated by such rules and restrictions, especially if they are perceived to be overzealous or ill-intended.

Board members and property managers should take every precaution to strike a balance between the rules and restrictions they impose upon parking within the community and the legitimate concerns they intend to address by the imposition of such rules.

Some associations contending with parking issues and rules may find that the best approach is to try to find a compromise together with the owners that would meet with the most widespread approval. Communities may also opt to avoid focusing on member fines or suspensions, and they may consider waiving outstanding fines and suspensions for certain rules that have come into question. Owners who challenge fines resulting from parking rule violations will often argue that these fees should not be considered a good revenue source for the association, but supporters typically contend that the rules become ineffective if the association is unable to impose fines or suspensions for violators.

Some communities have chosen to implement concerted efforts at increasing communications to owners and residents regarding the parking concerns and the resulting need to implement restrictions. These communities have been motivated by the hopes that an open dialogue and explanations as to the reasons and goals behind the rules may increase compliance. For instance, if the issues involve on-street parking, it may be prudent to discuss the potential problems that may be caused by narrow streets, which could lead to accidents or a lack of access for emergency vehicles that may expose an association to potential liabilities.

In addition to the implementation of restrictions governing existing parking spaces within a community, directors and management may also give consideration to the use of overflow areas for use as parking, including the possibility of using or converting areas that are owned or created by the association for added parking. For instance, this may be a possible approach in sprawling communities comprised of single-family homes in which it may be best to find and create as many such areas as possible for overflow parking.

As it relates to condominiums with parking difficulties that may be due to inadequate garages and lots, association boards could explore any possibilities for agreements with nearby properties or garages with excess parking that could be available for use by residents and guests.

By working together with the owners and residents while maintaining an open mind about every parking rule and potential solution to insufficient parking, association boards can find the best approach for their specific needs and issues. Our firm’s community association attorneys write about important issues for associations in our blog at www.FloridaHOALawyerBlog.com, and we encourage association directors, members and property managers to enter their email address in the subscription box in the blog in order to automatically receive all our future articles.

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(1-15-20)

Community Associations Official Records Require Effective Document Management, Storage

By Laura M. Manning

Community associations in Florida are required to provide owners with access to the association’s official records within 10 working days after receiving a written request from a unit owner or the owner’s authorized representative. Given such a statutory mandate, it is not so uncommon for associations to receive requests to inspect financial and accounting records, contracts, certified copies of plans, permits and warranties provided by the developer or any other contractor, as well as copies of the declaration, articles of incorporation, bylaws, rules and regulations, and insurance policies.

Associations should be prepared to respond to requests to inspect official records by utilizing strong document management and retention policies. For large associations, records should be cataloged and preserved using third-party cloud services for offsite storage and backup. These systems can be set to automatically backup and store association records at regular intervals.

One of the simplest ways for associations to keep a thorough and searchable archive of important email communications with property management, attorneys, insurance brokers and others is to utilize a single association board email address as the sender and/or copied recipient of all such messages.

In addition to the digital document archives, associations should also maintain an organized and up-to-date paper filing system. Paper still serves a practical purpose for the provision of obtaining quick copies of important documents for immediate perusal, and it can also be an emergency backup system against any potentially lost or damaged electronic data.

Paper files and cabinets should be organized using a basic indexing system, and access to the files should be limited to only a few individuals. Confidential legal and personnel files should be kept separately and securely locked away. File retention and disposal policies should require that no files will be disposed without prior board approval.

Association directors and property managers with any questions or concerns regarding the maintaining of official records and their inspection by members should always consult with highly qualified and experienced community association attorneys.

Our firm’s community association attorneys write about important issues for Florida associations in our blog at www.FloridaHOALawyerBlog.com, and we encourage association directors, members and property managers to enter their email address in the subscription box in the blog in order to automatically receive all our future articles.

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(1-1-20)

Considerations for Practical Parking Solutions in Congested Communities

By Roberto C. Blanch

The topic of parking within community associations is oftentimes the source of much consternation. The limitation of parking spaces in HOA and condominium association communities – whether real or perceived – may result in volatile and contentious situations for community association stakeholders. Homeowners, property managers and directors alike are confronted with concerns about the manner by which vehicles are parked; the number of vehicles residents choose to park within communities; the number of guests an owner may have at one time parking their vehicles within a community; the duration which vehicles may be parked; the types, appearance and size of vehicles parked within a community, and the locations in which residents or guests choose to park vehicles within a community.

In order to address these concerns, community association directors typically adopt rules and restrictions governing how, when, where, how many and what types of vehicles may be parked in the community. However, unit owners can become very frustrated by such rules and restrictions, especially if they are perceived to be overzealous or ill-intended.

Board members and property managers should take every precaution to strike a balance between the rules and restrictions they impose upon parking within the community and the legitimate concerns they intend to address by the imposition of such rules.

Some associations contending with parking issues and rules may find that the best approach is to try to find a compromise together with the owners that would meet with the most widespread approval. Communities may also opt to avoid focusing on member fines or suspensions, and they may consider waiving outstanding fines and suspensions for certain rules that have come into question. Owners who challenge fines resulting from parking rule violations will often argue that these fees should not be considered a good revenue source for the association, but supporters typically contend that the rules become ineffective if the association is unable to impose fines or suspensions for violators.

Some communities have chosen to implement concerted efforts at increasing communications to owners and residents regarding the parking concerns and the resulting need to implement restrictions. These communities have been motivated by the hopes that an open dialogue and explanations as to the reasons and goals behind the rules may increase compliance. For instance, if the issues involve on-street parking, it may be prudent to discuss the potential problems that may be caused by narrow streets, which could lead to accidents or a lack of access for emergency vehicles that may expose an association to potential liabilities.

In addition to the implementation of restrictions governing existing parking spaces within a community, directors and management may also give consideration to the use of overflow areas for use as parking, including the possibility of using or converting areas that are owned or created by the association for added parking. For instance, this may be a possible approach in sprawling communities comprised of single-family homes in which it may be best to find and create as many such areas as possible for overflow parking.

As it relates to condominiums with parking difficulties that may be due to inadequate garages and lots, association boards could explore any possibilities for agreements with nearby properties or garages with excess parking that could be available for use by residents and guests.

By working together with the owners and residents while maintaining an open mind about every parking rule and potential solution to insufficient parking, association boards can find the best approach for their specific needs and issues. Our firm’s community association attorneys write about important issues for associations in our blog at www.FloridaHOALawyerBlog.com, and we encourage association directors, members and property managers to enter their email address in the subscription box in the blog in order to automatically receive all our future articles.

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