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Florida Condo & HOA Legal Blog

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

Privacy Rights Should Be Guarded

Posted in Association Documents, Discrimination/Fair Housing, Rental

Question: Our declaration of condominium documents give the board the right to approve sales and leases. We have no one on our board that has experience in reviewing application information. A former board member, who is also an attorney, helps us review the information we receive. He makes a recommendation as to whether the application should be approved or disapproved and the board then acts in accordance with his recommendation. Is this appropriate? (C.I. by e-mail)

Answer: It depends. Unless the former board member has been appointed as an assistant officer or to a committee (all committees must consist of at least two members), and unless your documents permit this function to be delegated, this is not appropriate.

First, you have to ensure that the condominium documents give the association the authority to review and approve or disapprove lease and title transfer applications. There should also be written guidelines for disapproval, prepared or reviewed by legal counsel. The Florida Condominium Act specifically provides that information obtained by an association in connection with the approval of the lease, sale, or other transfer of a unit shall not be accessible to unit owners. This law exists for privacy reasons. Making this information available to an owner who is not empowered by the condominium documents to participate in this process would run afoul of this restriction in the law.

Service Contracts Should Always be Reviewed by Association Attorney

Posted in Common Areas, Landscaping, Service Contracts

Trimming TimeQuestion:  My condominium association entered into a landscaping contract a few months ago. The contract calls for the landscaping contractor to cut the grass, trim the trees, replace dead vegetation, and (overall) keep the property looking good. In just a short period of time the contractor is doing a lousy job. The grass isn’t cut on time, dead vegetation isn’t being replaced timely, etc. I am the president of the board and I wrote a letter to the contractor notifying them that the contract would be terminated in 30 days, which I thought was sufficient notice. I just received a response letter from the landscaper’s attorney informing me that the one-page contract I signed on behalf of the association does not allow the association to terminate the contract. The letter from the landscaper’s attorney says that the association is locked into the contract for at least another six months. Is this legal? How can I get out of this contract? — T.P., Naples

Answer:  Since your association entered into a written service contract with this landscaping company, the termination provision contained within the contract will govern this dispute. Although I recommend that any contract, to which an association is a party contain a liberal “termination without cause” provision, it has been my experience that landscapers often resist including these types of termination provisions in their contracts. The likely reason for their position is the increased work they are required to perform during the growing season, despite their charging the same monthly fee throughout the year. In the case of a defined term contract, you may be able to terminate the contract after tendering “notice and an opportunity to cure.” Your association attorney will be able to advise you as to the legal steps required to properly terminate the contract. He or she can also review whether the contract complies with the statutory disclosure requirements contained in the Florida Condominium Act (Chapter 718 of the Florida Statutes).

For the reasons you are facing, it is recommended that any contract the association enters into be first reviewed by the association attorney. Many proposed contracts that I review on behalf of my association clients seem appealing because they are brief (one or two pages) but lack sufficient details and almost always favor the contractor. A properly drafted contract will address important terms, including not only how you can terminate but issues like required insurance, indemnity for injuries, and the right to recover attorney fees if you have to go to court.

New Class in Sarasota, Florida: Condo Construction Projects Gone Wild!

Posted in Construction, Construction Issues & Contractual Disputes, Insurance, Maintenance & Repair

Presented By: Conrad Lazo and Steven H. Mezer
Provider #0000811, Course #9626710, 2 HR CEU Credits

This class is designed to educate community association managers and board members about the issues and pitfalls associated with community association renovations, maintenance and repairs to association property.

We will address various issues including:

  • Certificates of Insurance – Additional Insured Status and the importance of Builders Risk Insurance.
  • Requirements to pass assessments for improvements and restrictions such as, membership votes required to take action and document interpretation.
  • Scope of warranties and pitfalls associated with them. What to be vigilant for to avoid problems when enforcing warranty protection.
  • The importance of retaining skilled consultants such as engineers when performing remedial work on association property.
  • Hurricane contracting and common issues arising in the aftermath of a hurricane.

Tuesday, September 27, 2016
3:00 PM – 5:00 PM

Sign-in starts at 2:30 PM

Palm Aire Country Club
5601 Country Club Way
Sarasota, FL 34243

[MAP]

Light refreshments will be served. Attendance is complimentary, but seating is limited.  Pre-registration is required.
We look forward to seeing you there!

For more information please contact Kate Block by phone 941-366-8826 or by email kblock@bplegal.com

Please click here for a listing of Becker & Poliakoff classes throughout Florida.

Florida HOAs Should Regularly Review Architectural Review Board Guidelines

Posted in Governing Documents

House Painter Painting the Trim And Shutters of HomeQuestion:  I live in a homeowners association and serve as chairman of the architectural review board (ARB). An owner recently submitted an application to repaint the exterior of his home a bright yellow color. The home is currently painted light brown. Our ARB rejected the application because we feel that the proposed bright color is aesthetically unpleasing and no other homes in our community are painted this color. The owner is protesting the ARB’s decision and threatening to sue. The owner alleges that the ARB is breaking the law by rejecting his color request because the association doesn’t have a specific list of permitted colors. Is the owner correct? Do we have to allow the owner to paint the exterior of their home bright yellow? — B.M., Naples

Answer: Maybe. ARB disputes are one of the most common causes of litigation between a homeowners association and its members. The ARB is required to evaluate each ARB application based on the authority contained within the homeowners association’s governing documents and any properly adopted ARB guidelines. The Florida Homeowners Association Act (Chapter 720 of the Florida Statutes) currently requires architectural standards or guidelines for a community to be “specifically stated or reasonably inferred as to such location, size, type, or appearance.” This law was adopted in 2007, and its retroactive application is a matter of some debate. Under current statutory law, decisions as to the exterior paint color of a given home should be based on documented architectural standards and cannot simply be based upon the “whim” of the ARB. That said, the legal analysis of this issue is often very fact-intensive. Prior decisions of the ARB, the community aesthetics and scheme of development will be material considerations.

Given how common ARB disputes are, it is strongly recommended for every homeowners associations to review their ARB guidelines closely and regularly. If the ARB guidelines are not specific and clear, the association could face serious enforcement challenges.

Association Has Several Options to Enforce HOA Documents

Posted in Association Documents, Covenant Enforcement/Violations, Rules & Regulations, Suspensions, Fines & Remedies

Question: The governing documents for our homeowners’ association contain a number of restrictions and rules. However, they do not contain any instructions on what happens if an owner fails to comply with the documents. If an owner is not obeying the documents, what does the homeowners’ association do? (D.H by e-mail)

Answer: The association has several options for enforcing the documents. The first step I normally recommend is to notify the owner of the violation and educate them of the requirements of the governing documents and seek their voluntary compliance. It is not uncommon for some owners to be unaware of the provisions of the documents and be more than willing to comply when the problem is pointed out. Of course, there are always those who would rather seek forgiveness than permission and feel that rules are made to be broken.

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The 5 Most Frequently Asked Questions About Florida Fire Sprinkler Retrofits

Posted in Fire Sprinklers, Hurricane/Disaster Issues, Insurance, Liability, Material Alteration

SprinklerAs the 12/31/16 deadline for Florida high-rises to opt out of a full sprinkler retrofit looms large, the confusion regarding which multifamily buildings should opt out, why and what the consequences of that opt out vote will be escalates.

Here are the top five questions I’ve been asked over the last several months from condominium and cooperative associations throughout Florida.

1. Should low and mid-rise buildings vote to opt out?

The decision to opt out for low and mid-rise buildings requires a conversation with knowledgeable association counsel. I have some of my low and mid-rise clients who are taking the opt out vote and others who are not.

I have discussed the preventative value of an opt out vote for non-high-rises, however, there are also some perceived disadvantages to taking the vote as well including the fact that post vote notice requirements must be followed including the possibly chilling impact on sales and rentals when owners must notify all future potential purchasers and potential renters about the opt out vote.

When I have this discussion with my low and mid-rise clients the factors we discuss include:

  • Physical configuration of the building; specifically whether there are exterior catwalks with two remote entrances at each end.
  • Age of the building. If the building is three stories or higher (but fewer than 7) and was built after 1994 the permitting process required sprinkler installation so the potential need to opt out should no longer exist.
  • The existence of a local ordinance or code pertaining to sprinklers and low and mid-rise buildings. If such an ordinance or code exists then I am inclined to recommend the opt out vote for those low and mid-rises.
  • The percentage of short-term rentals permitted in the building. If a building has enough short-term rentals it may be treated as a public lodging establishment and its life safety requirements are much higher which might make the opt out vote more compelling.
  • The existence of commercial units in the building.

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Community Update, 2016, Volume 6

Posted in Common Areas, Community Update, Construction, Fire Sprinklers

martinez_m2Summer is giving way to Fall and many communities are taking on the next phase of 2016 maintenance, with a goal toward finishing up for the year-end holidays.

In this issue:
We provide important insight on Reclassifying Property as Common Elements for Maintenance Purposes. It may not always be the case that an owner is responsible for property and utilities that serve only their individual units. It is important to look at the Declaration and its delineated unit boundaries, common elements and limited common elements. If it becomes necessary to reclassify a portion of the common elements to make an owner responsible for the air conditioner which serves solely their unit, The Condominium Act provides a means for doing so.

2016 Community Update, Volume 6Our Community Update also helps to navigate the material alteration waters with Material Alteration to a Common Element vs. Material Alteration of Appurtenance to Units. To “palpably or perceptively vary or change the form, shape, elements or specifications of a building” results in a material alteration which requires a vote of the Board or Membership depending on the language in the governing documents. In those situations where a change to the common elements would foreclose the owner’s ability to use those common elements, there is a material alteration of the appurtenances to a unit. Such a change is not permitted without a member and lienholder vote.

We continue guiding our clients on the fire sprinkler retrofit requirements with the article Our High-Rise Building Opted Out of Fire Sprinklers, Now We Have To Do What? – State Fire Marshal Clarifies Engineered Life Safety System (“ELSS”) Requirements and Deadlines. Even if a community opts-out of the fire sprinkler retrofit, an ELSS would still be required in high-rise buildings if compliant automatic sprinkler systems are not present or if all of the dwelling units do not have exterior exit access.

In our Did You Know? Section, we highlight our complimentary online collection and foreclosure monitoring system, ProLaw. All Becker  & Poliakoff clients have access to the system to check the status of any delinquent assessment account they have asked us to handle for them. It is a simple way to know what is going on 24/7.

Embracing Technology for the Betterment of Florida’s Residential Communities

Posted in Elections, Fraud, Voting

berger_dThe commentary published Aug. 23 by attorney Jason M. Vanslette of Kelley Kronenberg regarding online voting for community associations fails to acknowledge or address the needs of such associations, the changing demographic in Florida communities or the capabilities of the available software. Rather, the article reflects thinking that is stuck in the past.

Florida has finally joined almost two dozen other states in permitting members living in private residential communities to cast votes in a more convenient, secure manner than previously existed. This is a particular boon to communities with large percentages of out-of-state and foreign owners who were previously unable or unwilling to participate in important membership votes because of the time constraints or simple inconvenience of voting by paper ballot or proxy.

These membership decisions involve electing a board each year, approving amendments to the documents, material alterations and upgrades to common areas, borrowing money or approving assessments for necessary projects as well as making important decisions about reserve funding and the use of reserve funds.

The Florida law authorizing online voting became effective on July 1, 2015, but the state Division of Florida Condominiums, Time Shares and Mobile Homes did not release its electronic voting Rule 61B-23.00211 until March 21, 2016. Since that time many condominium, cooperative and homeowner association boards have taken the necessary legal steps to authorize online voting in anticipation of making that voting option available to the members for their upcoming annual meetings.

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“Action Without Meeting” Generally Permissible For Associations

Posted in Elections, Meetings, Voting

Question: Our condominium association intends to conduct a membership vote on a matter without holding a meeting. Many members are interested in voting by e-mail, but do not have equipment to scan a signature. Is there any way around this? (R.F. by e-mail)

Answer: The approval of matters without a meeting is governed by the Florida Not For Profit Corporation Act, Chapter 617 of the Florida Statutes. This law states that unless otherwise provided in the articles of incorporation, action that can or must be taken at a members meeting may be taken without a meeting, without prior notice, and without a vote if the action is approved by a signed consent by the number of members that would have been required had a meeting taken place.

The written consents must be dated, signed and returned within 90 days after the date the earliest dated consent is delivered to the Association. Within 30 days after obtaining the required number of affirmative written consents, a specific notice must be given to those members who are entitled to vote on the action but who have not consented. The association’s bylaws should also be consulted, as they may incorporate an older, stricter version of the “action without meeting” statute.

The statute does not address what constitutes a “signature” on a written consent, nor does it specifically authorize “electronic signatures.” Electronic signatures are only addressed in the Electronic Signature Act of 1996 which deals with commercial transactions and not corporate matters. For commercial transactions, an electronic signature is defined as any letters, characters, or symbols, manifested by electronic or similar means, executed or adopted by a party with an intent to authenticate a writing. However, neither the Division of Condominiums, Timeshares and Mobile Homes nor the courts have specifically authorized the use of electronic signatures in the association context.
If an association wants to collect votes electronically, the better course of action would be to hold a meeting and allow members to vote by internet. The board of directors has the power to implement online voting, but it must do so at an open meeting, with notice of the meeting delivered to all owners not less than 14 days prior to the date of the meeting at which a resolution implementing online voting will be adopted. Once the resolution is adopted, the board may contract with a provider to provide electronic voting services so long as the program meets the minimum requirements set forth in the statute.

As an added benefit, holding a meeting often results in a lower approval threshold on the item being considered. With action by written consent, there is no way to know how many members are “present and voting” when you are receiving consents over a period of time. It is for this reason that you will often see a two-part approval threshold contained in the governing documents. When the vote is taken at a meeting, the approval is based on those present and voting. However, when the vote is conducted by written consent without a meeting, the approval is based on all members of the association. Thus, getting the votes by meeting will be much easier. Of course, your specific governing documents will control.

By the way, the law was also recently amended to permit the use of scanned/emailed proxies, notwithstanding any bylaw provision to the contrary. Coupled with online voting, this should make the conduct of association meetings much easier in the coming years.

Specific Procedures Must be Followed to Recall a Director in Florida Condominiums

Posted in Board Eligibility, Elections, Fraud

Business meetingQuestion: Our condominium board is very unpopular with some and a recall effort was recently started to oust the president. Several owners came to my unit and told me all sorts of bad things about the president. They said he stole money and refused to let owners speak at board meetings. They asked me to sign a petition confirming that I supported the recall, which I did. I then attended the board meeting, where the recall petition was discussed, and it was revealed that what I was told about the president was not true. Several owners, including myself, tried to have our signed recall petitions thrown out because they were gotten under false pretenses but the association attorney said we couldn’t. The president was removed from the board. Did the association break the law by not allowing me to retract my recall petition? — T.W., Marco Island

Answer: No. The Florida Administrative Code, which is a supplement to Florida Statutes, specifically addresses this issue. It states that any rescission or revocation of a unit owner’s written recall agreement must be submitted in writing prior to the board being formally served with the recall petition. Since you tried to have your recall agreement rescinded at the board meeting, after the recall petition had already been served on the board previously, you no longer had the right to revoke or rescind your recall agreement.

There are very specific procedures which must be followed in order to successfully recall a director. Recall disputes are adjudicated through arbitration proceedings filed with the agency which oversees condominiums. The agency has consistently ruled that alleged misrepresentations made during the solicitation of recall votes are not the basis to overturn a recall. For one thing, directors can be recalled “without cause” so the truth of statements made during the political part of the process are not considered legally relevant.