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Florida Condo & HOA Legal Blog

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

Cancelling Bulk Cable Contract in HOAs and Condominiums Could Be Tricky

Posted in Construction Issues & Contractual Disputes, Reader Q&A

78469417Question: My association is going to sign a new bulk services agreement for basic cable television. I have satellite TV and will now have to pay twice for TV service. A third of the residents don’t want bulk cable service. Majority rules, I was told. What do you have to say? S.B. (via e-mail)

Answer: Both the Florida Homeowners’ Associations Act and the Florida Condominium Act provide that the board may contract for communications services, information services, or internet services obtained pursuant to a bulk contract. This includes cable television. In my August 21, 2014 blog entitled “Wi-Fi For All is Likely a Common Expense For Associations”, I touched upon the unresolved legal issues that pertain to the retroactive application of these statutes, which have a different history in the context of condominiums and homeowners’ associations.

These statutes also provide that bulk contracts entered into by the board may be canceled by a majority of the voting interests present at the next regular or special meeting of the association, whichever occurs first. At such meeting, any member may make a motion to cancel the contract, but if no motion is made or if such motion fails to obtain the required vote, the contract shall be deemed ratified for the term expressed therein. Just how this cancellation vote might proceed raises some interesting questions.

There is no obligation for the board to place the cancellation issue on the meeting agenda. A cancellation vote would most likely only take place if a member in attendance makes a motion, and a majority of the members in attendance (which I believe, although the statute does not directly say so, includes those attending by proxy) vote in favor of cancellation. Since a designee of the board typically serves as the proxyholder for most of the members who submit proxies, it is highly questionable whether such a director would (or even could) vote for cancellation. To further complicate the issues, in the condominium setting, a proxy vote on an issue of this nature would require the use of a limited proxy.

Therefore, successful cancellation of such a contract would likely require a well-planned effort by those seeking to accomplish that result.

Tax Deed Purchaser Not Responsible For Delinquent HOA Fees

Posted in Assessment Collection, Owner Payment Responsibility, Reader Q&A

stk321080rknQuestion: Is a tax deed buyer responsible for HOA fees prior to the tax deed sale if those fees are not recorded as a lien against the tax deed property? J.I. (via e-mail)

Answer: No, assessments, debts, and most unrecorded rights, such as unperfected rights of lien, do not survive the issuance of a tax deed. Section 197.552 of the Florida Statutes, discussing tax deeds, states that except where otherwise provided by law, no right, interest, restriction, or other covenant shall survive the issuance of a tax deed.

The law does preserve the provisions of governing documents, but not accrued assessment debt. This issue was addressed in more detail in my blog dated November 25, 2013 entitled “Tax Deed Sale Wipes Out All Liens, Encumbrances.

Filling Out Lender And Title Agency Questionnaires-Should Your Community Association Take The Extra Step?

Posted in Managers (CAMS), Official Records, Operations

Risk

With growing frequency, volunteer community association board members and association managers are being asked to fill out lengthy and often complicated paperwork on behalf of business entities who are looking to evaluate the value of a particular community.

Your board may receive a request from a lender or title agency (or the attorney for either of the foregoing or for the owner looking to sell or finance his or her home) asking you to fill out a questionnaire which assesses the community’s overall condition including disclosing the number of delinquencies, violations, and leased properties among other items. The more brazen of these requests may include language which states that you are providing this information “under penalty of perjury” and that your statements are being relied upon by the company requesting same in order to make that loan or write that insurance policy.

Just last week, I received a request from an insurance company asking one of my clients to guarantee that a policyholder’s home was protected 24/7 by armed guards.

Some boards and managers are rightfully reluctant to serve the role of quasi-risk assessment officer for a business entity. However, when an association balks at filling out this paperwork, the typical reaction from the entity requesting same (or from the owner) is that the association is tortiously interfering with the contemplated transaction. Of course, the next sentence usually contains some threat of legal action.

How should your board react to these kinds of requests?
In fact, the Florida shared ownership statutes do not require boards to fill out these questionnaires. The Florida Condominium Act, for example, provides in Section 718.111(12)(e), that an 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 the Act to be made available or disclosed. The Condominium Act further allows the association to charge a fee up to $150 plus the reasonable cost of photocopying and any attorney’s fees incurred by the association in connection with preparing a response. Lastly, the statute specifically states that neither the association nor its agent are liable for providing such information in good faith if the response includes the following statement:

“The responses herein are made in good faith and to the best of my ability as to their accuracy.”

Even with the ability to charge for the preparation of a response and the statutory protection from liability, some association boards and managers may feel that providing such information could fall under the category of “no good deed going unpunished” should the entity later attempt to recoup losses against the association for the representations it made.

Every one of these questionnaires is slightly different so do speak with your association attorney prior to attempting to fill one out. Your board may also wish to create a policy on which requests will receive responses, which it deems unduly burdensome or risky and the fees it will charge.

Support and Service Animals Present Thorny Legal Issues for Condominiums

Posted in Covenant Enforcement/Violations, Discrimination/Fair Housing, Reader Q&A, Rules & Regulations, Service Animals/Emotional Support Animals

200456182-001Question: Our condominium building has two guest suites that can be rented by an owner for use by the owner’s overnight guests. Our declaration limits pets to 35 pounds in owners’ units and prohibits animals in the guest suites. We recently had a situation where a guest wanted to bring an emotional support animal into the guest suite that was over 35 pounds. Does the board have to permit this? S.O. (via e-mail)

Answer: Generally speaking, the association is entitled to enforce its 35 pound weight restriction with regard to all animals on the property, as well as the prohibition against animals in the guest suites, unless the animal is a service or support animal. The federal and Florida Fair Housing Acts require an association to make reasonable accommodations to its rules, policies, practices or services with limited exceptions. Service and support animals have been determined to be “reasonable accommodations” as a matter of law. An association is required to permit an oversized animal and/or a prohibited breed of animal if the requesting party is disabled and demonstrates a nexus between the disability and the need for the animal. A recent federal case out of the Southern District of Florida held that an association discriminated where it refused to allow an American Staffordshire terrier (a dog with characteristics of a pit bull), a breed of animal banned under a county ordinance, as an emotional support animal. An association is not permitted to enforce the 35 pound weight limitation on service or support animals.

There are situations in which a particular service or support animal could be excluded from the property. For example, a service or support animal that has exhibited a threat to the health and safety of others could be excluded. Each service or support animal must be evaluated on a case-by-case basis in order to determine the severity of the animal’s conduct and the threat to others. Many times, a denial of a service or support animal lands an association in hot water so it is best to seek legal advise before responding to a request.

Voluntary HOA’s in Florida Granted Certain Powers By Statute

Posted in Legislation, Reader Q&A

119012757(1)Question: You recently stated that voluntary homeowners’ associations are governed by Chapter 617, the Florida Not-For-Profit Corporation Act. You also stated that voluntary homeowners’ associations may be entitled to preserve the covenants regulating the community under the Marketable Record Title Act (MRTA) if the association has the authority to enforce use restrictions contained in the covenants. Can a voluntary homeowners’ association revitalize covenants that have already expired under Chapter 720, Florida Statutes, which governs mandatory homeowners’ associations? R.E. (via e-mail)

Answer: Yes, the MRTA statute was amended in 2007 to provide that an association not otherwise subject to Chapter 720 may use the procedures set forth in Chapter 720 to revive covenants that have expired under the terms of the MRTA statute. However, the voluntary association must have the authority to enforce the restrictions contained in the covenants in order to be able to revitalize expired covenants under Chapter 720.

Adjournment of Condo Board Meetings is Not Always Simple

Posted in Meetings, Operations, Reader Q&A

470927153Question: I was recently asked to vote on an amendment to our condominium declaration. I attended the meeting and it was noted that a quorum had been attained by those present in person and by proxy. However, the meeting was adjourned so that the Association could collect additional proxies because there were not enough votes to approve the amendment. Is it proper to adjourn the meeting for 90 days to collect additional proxies?  J.K. (via e-mail)

Answer: Often times, the Association’s bylaws will address this exact issue and specifically state that the members can adjourn a meeting, even though a quorum is present, to collect additional proxies. That is an express provision I include in bylaws I write for clients.

However, it is not uncommon to see a provision in the bylaws that only allows for adjournment in the instance that a quorum is not present, either in person or by proxy. This would seem to limit the authority of the members to adjourn a meeting where a quorum is, in fact, present. However, the Arbitration Section of the Division of Condominiums, Timeshares and Mobile Homes has addressed the issue and seems to take a more liberal interpretation of acceptable procedures.

Pursuant to the Florida Condominium Act, a proxy is not valid longer than 90 days after the date of the first meeting for which it was given. Additionally, each proxy is revocable at any time at the pleasure of the unit owner executing it.  Those who have previously cast proxies can demand a return of the proxy up until the time that the vote occurs at a properly reconvened meeting.

Failure to properly adjourn/recess meetings in a legally proper fashion is a common source of dispute. Your association’s attorney should be able to readily advise as to what procedures will or won’t hold water under your particular governing documents.

Handicap Parking Space Requirements Subject to a Variety of Laws

Posted in Disability, Discrimination/Fair Housing, Reader Q&A, Reasonable Accommodations or Modifications

177264661Question: How many handicapped parking spaces is our community required to have, where must they be placed and what local, state or federal law governs? J.B. (via e-mail)

Answer: The requirements for handicapped parking spaces in any community can vary greatly depending on the age of the community, the type of community, the number of units, and various other factors. Accordingly, this can be an extremely difficult question to answer.

A purely residential multifamily community that does not permit transient rentals or otherwise operate like a “hotel” would likely be governed by the federal and Florida Fair Housing Acts, as well as the Fair Housing Accessibility guidelines. As a general rule, all “covered” communities designed and constructed for first occupancy after March 13, 1991 should have a minimum of two percent of the number of parking spaces serving covered dwelling units made accessible and they must be located on an accessible route.

To the extent there are insufficient handicapped parking spaces to accommodate handicapped owners or occupants, a handicapped owner or occupant may request a reasonable accommodation pursuant to the federal and Florida Fair Housing Acts to have a parking space designated for his personal use which must be granted to the extent possible. Such an accommodation may also be required even if a handicapped parking space is available, but too far from the owner’s unit.

Residential communities that do not fall under the applicable guidelines for resort-type properties, and which were designed and constructed for first occupancy prior to March 13, 1991 generally do not have to comply with the accessibility guidelines. Repair of covered multifamily dwellings is likewise not covered because the Act’s design and construction requirements only apply to construction after March 13, 1991. However, a covered multifamily dwelling that has been constructed to comply with the law cannot later be altered to make it non-compliant with the law.

Residential multifamily communities that permit transient rentals and operate like, or have the characteristics of, a hotel, are likely governed by the Americans with Disabilities Act (the ADA) and might also be governed by the Fair Housing Act. The ADA’s Accessibility Guidelines are codified in the Florida Accessibility Code and address issues such as the required width of handicapped parking spaces, access, striping and signage requirements, and placement. The age of the buildings, whether renovations have been made, the extent of those renovations, and the number of overall parking spaces provided will play a part in determining the number of required handicapped spaces. For example, the guidelines require parking lots with 1 to 25 spaces to have 1 handicapped parking space while a lot with 501 to 1,000 overall spaces must have 2% of the total spaces designated as handicapped spaces.

In all types of communities, county and municipal ordinances can impose more stringent requirements than those contained in the ADA, and in my experience, there is some deviation amongst local government units in how these laws are applied, including retroactivity issues.

As you can see, there are many variables that must be considered when determining whether handicapped parking is required and, if so, the number of handicapped spaces and technical requirements. Each community must be evaluated on a case-by-case basis, and will usually require assistance from your attorney and, in some cases, review of engineering issues as well.

Changing HOA Assessment Allocations is Usually Impossible

Posted in Owner Payment Responsibility, Reader Q&A

176829051(1)Question: I live in a homeowners’ association that has both attached “villa-style” homes and detached homes. Each owner is charged the same amount in assessments from the association. This seems unfair. Is there a way to charge larger parcels more than the smaller, villa parcels? A.I. (via e-mail) 

Answer: Probably not. If the developer drafted the governing documents of the homeowners’ association to provide for the equal division of common expenses amongst the parcel owners, regardless of the size, or type, of the parcel, it would be difficult, if not impossible, to change the common expense allocation from an equal division to some different allocation. 

The Florida Homeowners’ Association Act provides, in Section 720.308(1)a, that the assessments levied by a homeowners’ association must be in the member’s proportionate share of common expenses as described in the governing documents. Further, the statute goes on to provide that such allocation may be different among classes of parcels based upon the state of development, the levels of services received, or other factors. As such, the developer can, in the initial governing documents, provide for equal or unequal allocation of common expenses. Here, you advised that the developer, in creating the association, provided for the equal allocation of common expenses. 

In order to change the allocation of common expenses, the governing documents would have to be amended. However, Section 720.306(1)(c) of the Act provides that in order to change the proportionate share of common expenses paid by a parcel, all parcel owners, as well as all record owners of liens on the parcel (such as mortgages), must join in the execution of the amendment.  

While this could technically be done, it would likely be impossible, because some owners would have to agree to accept a greater percentage of the common expenses than they are currently paying.

Condominium Balcony Enclosures Require Attention to the Details

Posted in Maintenance & Repair, Operations, Reader Q&A

460844165Question: I serve on the board of a condominium association. Recently, an owner has requested permission to enclose his balcony. We are not opposed to this provided the enclosure is attractive and does not cause any damage to the exterior of the building. Can the board allow an owner to enclose his balcony? P.M. (via e-mail)

Answer: The answer to your question will largely depend on the language contained in your association’s condominium documents. Most declarations of condominium prohibit owners from enclosing balconies or otherwise changing the exterior appearance of the condominium building unless the alterations are approved by the board, or in some cases, a percentage of the members.

Before allowing such alterations, the board should consider the implications of the enclosure, including the appearance, construction, and the ongoing maintenance and repair of the enclosure.

In connection with approving the enclosure, the board should consider hiring an engineer to review the construction plans in order to make sure that the enclosure will not affect the structural integrity of the building.

Also, a written agreement in the form of a covenant running with the land should be drafted by legal counsel and signed by the owners in order to protect the interest of the association. The covenant, among other obligations, would require the owner to pay for attorney and engineer fees incurred in connection with approving the enclosure, require the owner to install the enclosure in compliance with plans submitted, and require the owner and all future owners of the unit to maintain and repair the enclosure.

Listen live Tuesday – Condo & HOA Issues WLRN 91.3 FM with attorney Donna DiMaggio Berger

Posted in Hurricane/Disaster Issues, Legislation, Service Animals/Emotional Support Animals

Donna DiMaggio BergerCommunity Association attorney and blogger Donna DiMaggio Berger will be the featured guest on WLRN radio show, Topical Currents at 1 pm, Tuesday December 2, 2014.  Donna will be discussing topics that can affect all types of community associations including emotional support and service animal requests, rental and sale restrictions, 55+ communities, material alterations and more.  A frequent guest, she will also address issues in the upcoming legislative session for residents of  shared ownership communities and why the winter months are the right time to “benchmark” your community’s assets now that South Florida has survived another hurricane season unscathed.

Listen or, even better, call in 800.743.9576 as she offers advice and suggestions on how to handle the tough issues which might be facing your community association.

http://tunein.com/radio/Topical-Currents-p39154/