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Florida Condo & HOA Legal Blog

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

Erika Heads Our Way — Is Your Community Prepared? — CALL Alert for August 27, 2015

Posted in CALL Alert, Hurricane/Disaster Issues, Insurance

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Donna DiMaggio BergerWith Tropical Storm Erika bearing down upon us and likely to hit our shores over the weekend or early next week, it is important for you to know what to do if your community suffers a property loss due to this storm.

There are certain steps you must take to ensure that your insurance claim is handled properly and with an eye towards maximizing your recovery. Far too many board members and managers mistakenly believe that the adjuster sent out by the insurance company to assess your property damage works for the association or, at the very least, has an independent view of things. In fact, the adjuster sent out by your insurance company works for the insurance company and is looking to keep the estimate of covered damage as low as possible. Most, if not all, insurance companies look at claims through their own filter which treats property damage as either a pre-existing condition or a failure to maintain on the association’s part, both of which work to reduce or deny your property damage claim.

One of the many benefits of being an annual retainer client of Becker & Poliakoff is that you are entitled to receive a post-disaster visit from your association attorney as well as one of our Insurance attorneys, to help you assess and document any damage you have suffered. We can also handle any insurance coverage claim you may have, and in most circumstances, without any out of pocket cost to your association. If you have property damage please keep in mind that proper notice to the insurance company is critical. We can assist you with that notice and initial claim preparation as well. While this reminder is timely and specific to hurricanes, we will also provide this service for any disaster, including, for example, a pipe bursting and leaking down to multiple floors.

If Erika does cross your path in the coming days and cause damage to your community, please call or email your B&P community association attorney as soon as possible so that we can help fast track your recovery and repairs. You can also feel free to call our Client CARE Center at 954-364-6090 or toll-free at 1-844-CAREBP1 (1-844-227-3271). You can also reach our Client CARE Center via email at care@bplegal.com.

Please keep the contact information contained in this CALL Alert handy as the most active month of our 6-month hurricane season is still to come- October.

If you haven’t already reviewed our Disaster Preparedness and Recovery Guidebook, it is not too late to gain a few tips before the 2015 hurricane season ends.

We hope that the remainder of the hurricane season keeps all of your community members well and safe.

Are Wheelchair Lifts Required For Private HOA Pools?

Posted in Disability, Reader Q&A, Reasonable Accommodations or Modifications

ThinkstockPhotos-498749475Question: We live in a large gated community of over a thousand homes. Our homeowners’ association’s swimming pool is inaccessible to people with severe disabilities. Is there any way to force our HOA to provide a lift for those that need help to enter the pool?  J.C. (via e-mail)

Answer: Under the Americans with Disabilities Act (“ADA”), “Title II Entities” and “Title III Entities” have minimum requirements for making swimming pools, wading pools, and pool spas accessible. The entities required to abide by these requirements are public entities, such as state and local governments (their departments, agencies or other instrumentalities) and places of public accommodations, commercial facilities and private entities that offer educational and occupational certification. Places of public accommodations include restaurants, hotels, theaters, convention centers, hospitals, parks, zoos, museums, amusement parks, health parks and such.

Under the ADA, these entities must make recreational programs and services, including swimming pool programs, accessible to people with disabilities. The ADA requirements provide large pools must have two accessible means of entry, with at least one being a pool lift or sloped entry. Small pools are required to have one accessible means of entry, either a pool lift or a sloped entry.

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CALL 2015 Legislative Guide for Community Associations is Now Available

Posted in CALL Alert, Legislation, Uncategorized

spot_2015_leg_guideBecker & Poliakoff and the Community Association Leadership Lobby (CALL) want you to know that the2015 Legislative Guide for Community Associations is now available for viewing and printing. There is one Legislative Guide that addresses all three types of shared-ownership communities (condominiums, cooperatives, and homeowners’ associations).

The Legislative Guide includes a comprehensive summary of the laws that passed that directly impact community associations, including bills dealing with insurance and other miscellaneous bills of interest.

  • Practical Pointers to help you implement the 2015 legislative changes.
  • Important Action Items highlighting what associations need to do to be in compliance.
  • Links to access a copy of each of the new laws that passed.
  • Links to biographies of the bill sponsors.

Please click here to receive your copy of the 2015 Legislative Guide for Community Associations via email. Should you have any questions or if you are interested in learning more about CALL, please feel free to contact Diana Zayas-Bazan at 954-364-6012 (844-4FL-CALL).

Documents Govern Landscaping Responsibilities in Florida HOAs

Posted in Reader Q&A

ThinkstockPhotos-173367779Question: The “Architectural Review Committee” in my homeowners association is now charging individual “villa” owners for work done on the HOA common area. The work includes planting and tree removal. New homeowners have been billed by the association, at the direction of the Board, for this work (performed and billed by the landscaper) with the explanation that the new homeowner/villa owner inherited the responsibility from the previous owner. Apparently, the sale of a home was held up until this agreement was confirmed. I understand this is not legal. The HOA fees cover all work done on common ground. This is stated in the documents. K.Z. (via e-mail)

Answer: I agree that it is likely improper for a homeowners association to only bill one homeowner for landscaping expenses exclusively attributable to work performed within the common area. I am adding the caveat “likely” because the restrictions contained within the governing documents for a given homeowners association will dictate how landscaping work in a given area will be performed and who will bear the expense. Most homeowners association governing documents designate certain areas (which are usually owned by the association) as “common areas” and, in turn, require all homeowners to collectively pay for the maintenance of the common area as a common expense. In other words, in most instances each homeowner is responsible to pay assessments to the homeowners association pursuant to their “pro rata share”. These assessments are then utilized to pay for common expenses, such as landscaping expenses for the common areas.

It should also be noted that many homeowners association governing documents grant the association certain options if the homeowner fails to adhere to their maintenance obligations regarding individual lots. For example, if a homeowner fails to cut the grass on their lot, many governing documents grant the association the right to cut the grass (after providing notice) and then charge the owner for the expense incurred. If the homeowner refuses to pay for this expense, some governing documents grant the homeowners association lien rights to recover this expense.

Could Lower Real Property Tax Bills Result in a Healthier Financial Picture for your Association?

Posted in taxation

iStock_000008570644SmallVery often, volunteer boards ask just how involved they can and should be when it comes to assessing the financial health of their individual members. Most boards understand the power of bulk purchases when it comes to contracting with vendors for various services and products as a means to save their members money. Some boards scrutinize common services and amenities to eliminate any waste. However, what other factors would be involved in a more holistic approach to a community’s wellbeing? If more boards took a proactive approach to this issue would there be fewer delinquencies and foreclosures in our communities?

It stands to reason that each association member has finite resources and must make decisions about how to stretch those limited dollars. ‘Who gets paid this month’ is a question that perpetually plagues some folks and the hope is that your association assessment will top that priority list. There are times, however, when an association can help improve the financial picture for its individual members without overstepping any legal or moral boundaries.  Your Board has the statutory right to file a joint petition on behalf of your owners if you feel that the values being used to assess real property taxes in your community are inflated.

Becker & Poliakoff is now offering a Tax Abatement Program for Community Associations of all types and sizes of communities throughout Florida.

Joint petitions must be filed no later than mid-September so you will have to act quickly if you are interested in pursuing tax reductions on behalf of your members. After filing the Joint Petition, the following important steps will take place as described below (timing is approximate):

  • The County Value Adjustment Board begins hearing cases in October
  • Results will be available in about six weeks
  • Refund checks are issued approximately 90 days later

Please note that this process does not mean that your members don’t have to pay taxes as required.  It does mean that if your Joint Petition is successful, the participating owners may realize tax savings.

If you would like more information about Becker & Poliakoff’s Tax Abatement Program, please contact us at lowertaxes@bplegal.com or call Diane Schick at (954) 987-7550.

Can a Satellite Dish be Installed on a Condominium Building?

Posted in Covenant Enforcement/Violations, Reader Q&A, Rules & Regulations

ThinkstockPhotos-529256053Question: I am currently renting a condominium unit that is on the second floor of a four-story building and want to get satellite television. The satellite television provider came out and said that because of the direction of the building, the only way I can get signal is to install the reception dish on the roof of the building and run a wire to my unit. My landlord, who owns the unit, says it is fine with him, but the condominium association has denied my request. I thought that the law said I could put the dish where I needed to get a signal. Can the association prevent me from installing the dish on the roof?  A.F. (via e-mail)
 
Answer: Yes. The Federal Communications Commission (“FCC”) has adopted a rule which regulates the use of “Over The Air Reception Devices”, commonly called the “OTARD Rule.” The rule states that a condominium association must allow a resident to install a satellite reception dish of one meter or less in diameter within the portion of the condominium property the resident owns or has exclusive use of.

As such, a satellite dish can be in the unit itself or another area that the resident has exclusive use of, often a limited common element lanai serving the unit. However, you would not have the right to install the dish on the roof of the condominium building, an exterior wall of the building, or in other common outdoor locations.

Can HOA Directors Be Elected By Absentee Ballot?

Posted in Board Eligibility, Elections, Reader Q&A

ThinkstockPhotos-475403304(1)Question: Our homeowners’ association documents state that a quorum for a members’ meeting is thirty percent of the membership and that the election of directors is to be held at the annual meeting. Our association states that they can follow Chapter 720 and mail out absentee ballots to be returned by the members, or a member can attend the meeting and cast their ballot in person. Is this correct? B.D. (via e-mail)

Answer: It depends. Unlike condominiums, where a uniform election procedure must be used by all associations (though condominiums of 10 or fewer units can “opt out”), HOA election procedures are primarily dictated by the bylaws. Section 720.306(9) of Florida’s Homeowners’ Association Act provides that the election of directors must be conducted in accordance with the procedures set forth in the governing documents.

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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

This 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:

 

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.