Header graphic for print

Florida Condo & HOA Legal Blog

News & Updates on Condo & HOA Laws & Legislation in the State of Florida

Drones & Privacy – Condo and HOA leaders need to know about a new law called the Freedom from Unwanted Surveillance Act.

Posted in CAM, Covenant Enforcement/Violations, Legislation

lisa 100 women picture alternativeThis new law went into effect July 1. It prohibits a person, state agency or political subdivision from using a drone to capture the image of a privately owned property or anyone on the property with the intent to conduct surveillance. Those that wish to use drone technology in this manner must have written consent from people on the property.

Click here for the actual text of the statute

This new law is somewhat similar to that sponsored by U.S. Senator Rand Paul in 2013 to regulate government’s invasion of privacy by use of drones.  That bill prohibits a person or entity acting under the authority of (or funded in whole or in part by) the federal government from using a drone to gather evidence or other information pertaining to criminal conduct or conduct in violation of a statute or regulation except to the extent authorized in a warrant satisfying the requirements of the Fourth Amendment to the Constitution.

The Florida law goes further by regulating private individuals or entities.  A portion of the law reads:

(b) A person, a state agency, or a political subdivision … may not use a drone equipped with an imaging device to record an image of privately owned real property or of the owner, tenant, occupant, invitee, or licensee of such property with the intent to conduct surveillance on the individual or property captured in the image in violation of such person’s reasonable expectation of privacy without his or her written consent. For purposes of this section, a person is presumed to have a reasonable expectation of privacy on his or her privately owned real property if he or she is not observable by persons located at ground level in a place where they have a legal right to be, regardless of whether he or she is observable from the air with the use of a drone.

However, there is an exception that says:drone

 

This section does not prohibit the use of a drone:

By a person or an entity engaged in a business or profession licensed by the state, or by an agent, employee, or contractor thereof, if the drone is used only to perform reasonable tasks within the scope of practice or activities permitted under such person’s or entity’s license. However, this exception does not apply to a profession in which the licensee’s authorized scope of practice includes obtaining information about the identity, habits, conduct, movements, whereabouts, affiliations, associations, transactions, reputation, or character of any society, person, or group of persons.

Hmmm…. Does this exception apply to CAMs?  Will a CAM be permitted to use a drone to determine violations on balconies or in backyards?  I’ve spoken to many property managers (including CAMs) that intended to start conducting property inspections partially by drone.  You may want to hold off doing so until we receive clarification of the law.  That goes for board members as well.

There are significant ramifications for violations of this law.  First, the offended person may obtain an injunction to prohibit future unlawful use of the drone and they are entitled to an award of attorney’s fees if they prevail.  The offended person may also seek an award of punitive damages (not covered by insurance).

Interesting, the law specifically prohibits use of any video or audio obtained in violation in any criminal prosecution, but does not specifically mention use in civil cases.

Our next Community Update will feature an article regarding drones – don’t miss it.

What Rights do Homeowners in HOAs Have to Inspect Official Records?

Posted in Official Records, Operations, Reader Q&A

ThinkstockPhotos-184035294(1)Question: I recently asked the property manager for my homeowners’ association whether my next door neighbor applied for approval of an expanded landscaping area, including a new garden area. I was told by the manager that I am not entitled to this information and/or documentation as it is confidential. Is this correct?  E.T. (via e-mail)

Answer: No. As a member of a homeowners’ association, you have a right to inspect the “official records” of the association. If you submit a written request to inspect official records, the association has ten working days to make the requested records available to you.

The definition of “official records” in the Homeowners Association Act (Chapter 720 of the Florida Statutes) is broad. There are certain records that an HOA does not have to provide a requesting owner, including: attorney-client privileged communications; information obtained in connection with the approval of a lease, sale or other transfer of a parcel; personnel records; medical records; and various personal identifying information of other parcel owners (such as e-mail addresses), unless the owner has consented to the disclosure of such information. A routine architectural change request does not fall within any of the exceptions contained in the law.

In condominium associations, a unit owner may file an “inquiry” with the association by certified mail and the association must provide a “substantive response” within thirty days. There is no parallel obligation in the Homeowners’ Association Act for your association to specifically answer your question (although most associations would presumably want to do so). However, you are entitled to obtain the answer to the question you seek by filing a request to inspect the official records and ask for any architectural change request forms submitted on behalf of the subject property.

Directors Can Choose Certification Alternatives in Florida HOAs

Posted in Fiduciary Duty of Board of Directors, Reader Q&A

ThinkstockPhotos-186285961Question: I have a question regarding the new director certification/education requirement found in Section 720.3033(1)(a) of the Florida Homeowners’ Association Act. The HOA Act provides that a newly elected or appointed director has two choices. He or she can sign a form that says he or she has read the association’s governing documents, will work to uphold such documents to the best of his or her ability, and will faithfully discharge his or her fiduciary responsibility to the association’s members. In the alternative, he or she can attend a board certification program presented by a Division of Condominiums, Timeshares and Mobile Homes-approved education provider within 1 year before or 90 days after the date of election or appointment. The newly elected director must either submit the executed form or a certificate of attendance to the association’s secretary within 90 days after being elected or appointed. Who decides which option is acceptable?  Can the board require that each newly elected or appointed director attend a board certification program rather than sign the form? M.M. (via e-mail)

Answer: No. As you properly note, the statute gives newly elected or appointed directors two options – sign a form or attend a class. Only if they do not do one of these two things are they suspended from the board pending compliance. If the board were to require a newly elected or appointed director to exercise one option over the other, the board is essentially providing for removal of that director from the board where the director refuses to comply with a board mandate, notwithstanding the fact that the director may be willing to exercise the other option available under the statute. It is my opinion that this is not authorized. Rather, it is the newly elected or appointed director that gets to choose how he or she will comply with the statute.

Both the Florida Condominium Act (in Section 718.112(2)(d)4.b.) and the Florida Cooperative Act (in Section 719.106(1)(d)1.b.) contain the same certification/education requirement and similarly provide newly elected or appointed directors with the same two options.

Can A Homeowners’ Association Be Terminated?

Posted in Reader Q&A

ThinkstockPhotos-179139842(1)Question: I live in a small homeowners’ association which does not have any amenities or common areas such as a community pool or park. The association only maintains a small landscaped area at the entrance of our community and each owner maintains their lot and home. It seems like a waste of time and money to continue to operate the homeowners’ association. What would be involved in terminating or abolishing the association? R.B. (via e-mail)

Answer: Even for associations that have limited or no common property, a homeowners’ association is still often the most efficient means of ensuring that the covenants regulating the scheme of development are enforced as to issues such as single family residential use requirements, regulations on the types of structures that can be built, and the like. However, the association could be dissolved and that would not necessarily negate individual enforcement rights of the lot owners.

Continue Reading

How Do You Find Volunteers to Serve on a Fining Committee?

Posted in Covenant Enforcement/Violations, Reader Q&A, Suspensions, Fines & Remedies

ThinkstockPhotos-489081731Question: I serve on a condominium association board. I’ve read about fining committees. Not surprisingly, no one in our community wants to serve on such a committee. This makes it almost impossible to enforce our rules. Our association’s governing documents state that people being fined must have a hearing before the board of directors. Do our documents apply or do we still need a fining committee to levy fines?  M.M. (via e-mail)

Answer: If your association’s governing documents provide that a fining hearing need only be held before the “board of directors” before a fine can be imposed, the documents directly conflict with the Florida Condominium Act. The law provides that prior to fines being imposed, a hearing must be held before a committee of unit owners who are neither board members nor persons residing in a board member’s household.

In this case, the Florida Statutes trump governing documents. If your association is having issues recruiting volunteers to assist on the fining committee, the board should consider adding this to the agenda at the next association meeting. Discussing the impact of not having a fining committee could motivate unit owners to get involved.

U.S. Department of Justice publishes “Frequently Asked Questions about Service Animals and the ADA”.

Posted in Discrimination/Fair Housing, Legislation, Service Animals/Emotional Support Animals

lisa 100 women picture alternativeWe often receive inquiries about the Americans’ with Disabilities Act (ADA) vs. the Fair Housing Act (FHA). The ADA is the federal law that allows disabled persons to have a service animal.  The ADA applies to places of public accommodation, such as hotels, restaurants, and other businesses or facilities which invite the public or permit public use.  Typically, the ADA does not apply to condominium associations or homeowners’ associations, unless the association permits use by members of the public, or function in the manner of a hotel. However, the ADA may apply to a condo or HOA if the facility has the characteristics of a hotel, i.e., allows stays of 30 days or less, accepts reservations from walk-ups or call-ins, provides linen service, etc. Whether the ADA applies to your community depends on the specific facts.

Conversely, associations are almost universally governed by the Fair Housing Act (“FHA”), also a federal statute, with state and local counterparts.  The FHA prohibits discrimination against disabled persons in housing. It is a violation of the FHA for a “housing provider”, which includes condominium and homeowner’s associations, to refuse to make a “reasonable accommodation” in its rules, policies, practices or services, or to refuse to allow an owner to make a “reasonable modification” when such accommodation or modification may be necessary to afford a handicapped person an equal opportunity to use and enjoy a dwelling or the common areas associated with the dwelling. Therefore, a handicapped person may be entitled to keep an assistance animal as a reasonable accommodation if the person has a handicap and there is a nexus between the handicap and the assistance that the animal provides. One factor distinguishing the FHA from the ADA is that the ADA defines a service animal as a dog that has been specifically trained to work or perform tasks for a person with a disability.

The U.S. Department of Justice just issued a set of “Frequently Asked Questions about Service Animals and the ADA”.  It is enlightening in several respects.

Emotional Support Animals are not Service Animals.  This we know, but there are psychiatric service animals.  Dogs that are trained to remind a depressed person to take their medication or detect and lessen the effect of an anxiety attack are examples of service dogs for these types of disabilities.

The ADA does not require a service animal to be professionally trained or certified, they may be trained by the handler.  BUT, the memo emphasizes the following:service animal vest

There are individuals and organizations that sell service animal certification or registration documents online.  These organizations do not convey any rights under the ADA and the Department of Justice does not recognize them as proof that the dog is a service animal.

 

Service animals must be under the handler’s control at all times.  The DOJ advises us that service animals are not to be left unaccompanied in hotel rooms.

The Florida legislature passed a law this session targeting people who try to pass off their pets as service dogs. Violators can be charged with a misdemeanor which carries penalties of to up to 60 days in jail, fines up to $500 and 30 hours of community service, as determined by the judge.  HB 71 modifies §413.08 by more clearly defining what constitutes a disability, provides examples of the types of tasks service animals may be trained to perform and includes miniature horses as service animals.  This law does not impact FHA or fair housing issues, but may be the first step in reigning in abuses.

Is Board Certification Really Necessary for Board Members in Florida?

Posted in Board Eligibility, Education, Reader Q&A

ThinkstockPhotos-149613506(1)Question: I read your blog on “board certification” in condominiums and have suggested to our president that all board members take such a course. I received no reply. I sent a document production request via certified mail and received as proof the “notice of intent to become a candidate” forms with the required State certification quotation that they have read all of the documents, etc. Does the State accept this type of board certification?  E.C. (via e-mail)

Answer: Yes. Over the past several years, all of Florida’s community association statutes have been amended to require that board members be “certified.”  Newly elected or appointed board members must, within ninety days of being seated on the board, sign a form, that provides that the board member has read the association’s governing documents, and that such board member will work to uphold such documents to the best of his or her ability. Further, the board member must agree that he or she will faithfully discharge his or her fiduciary duty to the association’s members. In lieu of signing this written certification, a newly elected or appointed director may instead provide a certificate demonstrating that they have satisfactorily completed an approved educational course. A prospective board member can attend and complete such an educational course up to one year in advance of taking a seat on the board.

Continue Reading

Condo “screening” or transfer fees are regulated by law.

Posted in Assessment Collection, Operations, Reader Q&A

lisa 100 women picture alternativeA blog reader recently advised that he was required to pay a $200 transfer fee to the management company in connection with his purchase of a condominium unit.  The reader asks whether this type of fee is acceptable and if so, whether there are any limits on the amounts that may be charged to new homeowners.

The Condominium Act does allow the association to charge a transfer fee in connection with the sale, lease or transfer of a unit as long as the association has the authority to approve transfers and the authority to charge a fee is contained in the governing documents.  The Condominium Act limits the amount of the fee to one hundred dollars per applicant.  Therefore, an association can charge each applicant one hundred dollars, but the statute specifically provides that a husband/wife or parent/dependent child are considered one applicant.  Consequently, a “screening” or “application” or “approval” fee is limited to $100.

While the “screening” fee is limited, there are other fees that may be associated with the sale or transfer of a condominium unit.  Purchasers (or title companies on behalf of a purchaser) will request information regarding the assessments payable by the new owner and whether there are any delinquencies associated with the unit.  This request is known as a request for estoppel information or an estoppel certificate.  Section 718.116(8), Florida Statutes, authorizes the Board of Directors (or its management) to charge a fee for the preparation of this certificate and the amount of the fee must be disclosed on the certificate itself.  Additionally, Section 718.116(8)(d), F.S. provides:

 (d) The authority to charge a fee for the certificate shall be established by a written resolution adopted by the board or provided by a written management, bookkeeping, or maintenance contract and is payable upon the preparation of the certificate. If the certificate is requested in conjunction with the sale or mortgage of a unit but the closing does not occur and no later than 30 days after the closing date for which the certificate was sought the preparer receives a written request, accompanied by reasonable documentation, that the sale did not occur from a payor that is not the unit owner, the fee shall be refunded to that payor within 30 days after receipt of the request. The refund is the obligation of the unit owner, and the association may collect it from that owner in the same manner as an assessment as provided in this section.

There were efforts to change this provision, to the detriment of the association, during the 2015 legislative session that failed.

If the purchase or transfer involves mortgage financing, often the lender will ask the association to furnish it with information regarding owner delinquencies, insurance coverages, reserve funding, percentage of owner-occupied units and other questions that may impact the financing.  These are known as “mortgagee questionnaires” or “condo questionnaires” and while the association is not required to provide this information, it is entitled to a fee if it does.  The charges are regulated by Section 718.111(12)(e), F.S. which says:

(e)1. The association or its authorized agent is not required to provide a prospective purchaser or lienholder with information about the condominium or the association other than information or documents required by this chapter to be made available or disclosed. The association or its authorized agent may charge a reasonable fee to the prospective purchaser, lienholder, or the current unit owner for providing good faith responses to requests for information by or on behalf of a prospective purchaser or lienholder, other than that required by law, if the fee does not exceed $150 plus the reasonable cost of photocopying and any attorney’s fees incurred by the association in connection with the response.

Many times condo questionnaires contain questions that require a legal analysis to answer properly.  Associations are best advised not to answer those particular questions without first consulting with legal counsel and to include the statutory disclaimer.

Can the Association Board of Directors Limit the Amount of Pets on a Property?

Posted in Rules & Regulations, Service Animals/Emotional Support Animals, Uncategorized

ThinkstockPhotos-183858564Question: If the restrictive covenants of a H.O.A. in Florida allow for “traditional” household pets to be kept (dogs, for instance)—provided that they are not kept for commercial purposes—does the Association Board of Directors have the authority to adopt rules limiting the NUMBER of dogs kept on a particular property? – R.W.

Answer: If the governing documents specify that there is a limit on the number of dogs that can be kept on a particular lot then the answer to your question is yes. If the Board has the authority to pass accompanying rules to existing restrictions like your community’s pet restriction then they can further expand on the restriction to limit the number of pets in addition to the types of pets.

New Laws Will Impact All Associations in Florida

Posted in Legislation, Reader Q&A

Today’s post is the second and final installment of my annual report on new laws affecting community associations. In the first installment, we looked at some of the changes for condominiums, cooperatives and homeowners’ associations in HB 791, the main Bill affecting community associations. The remainder of HB 791 includes the following:

  • Official Records (Condominiums and Cooperatives): The bill amends the official records “catch-all” provision which currently provides that “all other records of the association…which are related to the operation of the association” are official records. The new law states that these “other” records are limited to “written” records. This makes the condominium and cooperative statute consistent with the HOA statute. So, non-written records (for example audio tapes of board meetings or security camera video recordings) are presumably not “official records” under the new law and thus not available for owner inspection as a matter of right.
  • Extension of Distressed Condominium Relief Act (Condominiums): The bill extends the “distressed condominium relief act” also known as the “bulk buyer law” until July 1, 2018. Currently, the bulk buyer law is set to expire on July 1, 2016. This law gives companies that buy out distressed condominium projects immunity from various obligations affiliated with being a developer.
  • Insurance (Condominiums): The bill removes the provision that requires the association to be responsible for “uninsured losses.” This is a glitch fix and is intended to clarify that the association’s obligation to subsidize insurance shortfalls for items that may otherwise be the unit owner’s responsibility and limited to situations where the association is responsible to insure the damaged element.

Continue Reading