Question: We have a resident asking for clarification on the proper procedure to obtain copies of an invoice for work performed in the community. In a previous column, I thought you stated that requests for official records in a condominium association must be submitted by certified mail. Does this same requirement apply to a request for official records of a homeowners’ association? (A.W. via e-mail)
Answer: That is not exactly correct. There is often confusion between requests to inspect official records and “certified inquiries.”
First, the law regarding certified inquiries only applies in the condominium and cooperative realms, not for homeowners’ associations. There is no definition of what an “inquiry” is in the statutes. The Division of Condominiums, Timeshares and Mobile Homes, through its arbitration section, has looked to the dictionary definition and determined that a unit owner submitting an “inquiry” must actually be asking a question. Gripes require no response. Additionally, if the inquiry is not submitted via certified mail, there is no duty on the part of the association to respond.
Homeowners’ associations governed by the Florida Homeowners’ Association Act have no duty under law to respond to inquiries, whether submitted via certified mail or not.
Entirely distinct from a “certified inquiry” is an owner’s request to inspect official records of the association. Condominium, cooperative and homeowners’ associations must all provide access to official records upon receipt of a written request. No statute requires that official records requests be submitted via certified mail. However, the Florida Homeowners’ Association Act does provide that the failure of a homeowners’ association to provide access to the records within 10 business days after receipt of a written request submitted by certified mail, return receipt requested, creates a “rebuttable presumption” that the association willfully failed to comply with this subsection. Similar language is found in condominium and cooperative statute, but the request does not need to be submitted by certified mail for the presumption to arise.
All three statutes also allow a board to adopt reasonable rules regulating official records requests. Although never addressed by the courts, and they should be spelled out in the board’s records access policy, I am personally of the opinion that it is reasonable for a records inspection rule to require that requests to inspect official records be submitted by certified mail. That way, the association has a clear record of when the request was received for purposes of providing timely access.
A request to obtain copies of invoices for work performed in the community, if received in writing, is an official records request. Unless the board has adopted a rule that requires an owner to submit requests by certified mail, the association must provide the owner with access to the invoices. However, there is no duty on the part of the association to send a copy to the owner unless and until the owner first inspects the records and then requests copies. The association is authorized to charge for the copies. A homeowners’ association may charge up to 25 cents per page for these copies. The other statutes only state that copy charges must be “reasonable.”
Question: When a board adopts a motion or resolution, is a subsequent board bound by the vote if it does not agree? Can a subsequent board change or rescind a policy adopted by a previous board? (G.S. via e-mail)
Answer: Though directors may come and go, board policies, resolutions, or votes, if properly adopted, stay in place unless and until a subsequent board (or even the same board) votes to amend or rescind the resolution.
For example, if a current board adopted a rule regarding the procedure to inspect official records, all future boards would be required to abide by those rules until action was taken at a duly noticed meeting to amend or rescind the rule. For example, if a rule adopted by board resolution allows for an owner to submit a records request by e-mail, a future board could not ignore such a request (even though not required by law) unless and until the rule was amended.
My answer assumes the board actually had authority to take the action in the first place. For example, I am often asked to review board-adopted rules that regulate what can and cannot be done within a unit or on a privately-owned parcel. Rulemaking authority is often limited to common area issues or the common elements (as to condominium associations). In that example, even if adopted at a properly noticed board meeting, a subsequent board would not be required to recognize the previous board’s action, since it exceeded the board’s legal authority and is “void ab initio.”
As summer takes hold, many communities will come to life with BBQs, pool parties, and new residents now that the school year is over and families tend to relocate. In this issue, we look to help Associations navigate the summer waters as smoothly as possible.
Summertime Grilling on a Condominium Balcony…Think Again
While summer grilling covers the gamut from burgers and hot dogs to salmon and pizza, if your community is a condominium, grilling on a balcony could spell big trouble. Even if the Association’s rule and regulations permit the use of electric grills, the Florida Fire Prevention Code controls and it specifically prohibits even electric grills on balconies.
How Can Associations Enforce Traffic Laws on Private Roads in the Community?
Where the streets in a community are private, law enforcement does not have the authority, on its own, to come in and enforce Florida traffic laws. Do not fret however as Florida Statutes § 316.006 provides some respite. The Statute specifically allows for owners of private roads to enter into agreements with cities/counties for the enforcement of Florida traffic laws over their private roads. Just make sure to check the requirements for such an agreement since there may be an expense, insurance requirements, signage requirements and so forth.
Surveillance Cameras: Friend or Foe to an Association?
Everything gets caught on video now-a-days but is that always a good thing especially when the governing documents do not require specific security measures? Actually taking on or simply appearing to take on the duty to provide security results in an Association having to take proactive measures to prevent criminal activity. If an Association deems cameras are the right way to go, make sure not to call them security cameras which implies a sense of safety. Instead consider calling them surveillance cameras and make sure that a system is created to ensure they are properly working.
7-Day Rental Application Processing Requirement for Service Members
Recent changes to Florida law set new deadlines for Associations faced with a service member applying for rental approval in the community. There is now a 7-day deadline at which time written notice must be provided approving or denying the application. Denials must be substantiated at that time as well. If your community’s rental package does not ask if the applicant is a service member considering adding that question to the application since the 7-day processing requirement applies whether or not an Association knows the person is a service member.
Question: I live in a six-story condominium. My unit is on the third floor and I have, or used to have, a view of the Gulf of Mexico. There are several trees outside my unit that have become overgrown and have severely limited the view of the Gulf from my unit. I asked the board to have the trees trimmed to improve my view. They rejected my request by saying that the landscaper recommended the trees not be trimmed at this time. I am considering putting my unit up for sale and the lack of a Gulf view will be a problem. Can I demand the association trim the trees so I can get my view of the Gulf back? — T.E., Naples
Answer: Probably not. Florida courts have held that there is no inherent “easement to a view.” More than 50 years ago, there was an epic legal battle in Miami Beach between the Eden Roc Hotel and the Fontainebleau Hotel regarding the right to a view. The Eden Roc objected when the Fontainebleau proposed to construct an additional 14 stories that would shade the pool and sunbathing areas of the Eden Roc. The court ruled that the Eden Roc did not have an easement of light that would prevent the Fontainebleau from adding the additional stories.
The Fontainebleau case involved neighboring landowners, a situation somewhat different from yours legally. However, several condominium arbitration decisions have addressed similar disputes and have held that a condo unit owner does not have a specific right to an unobstructed view, at least absent an expression of that right in the declaration of condominium.
These cases have confirmed that the subject associations were not required to trim their landscaping simply because an owner demanded it. However, this specific issue has yet to be squarely addressed in the courts. Although arbitration decisions are not afforded the same weight as appellate court cases, they are persuasive authority and will be specifically relied upon in any condominium arbitration proceeding.
David G. Muller is an attorney with the law firm of Becker & Poliakoff, P.A., which represents community associations throughout Florida, with offices in Naples, Fort Myers and 11 other Florida cities. The firm focuses a substantial amount of its practice on condominium and homeowners association law.
Question: I recently attended the annual meeting of my homeowners’ association. Many absentee owners sent in proxies. The association’s attorney advised the association to reject several proxies because they named a tenant as the proxyholder. The attorney said that only association members may serve as proxyholders. Is this true and should these proxies have been disregarded? (T.Y. via e-mail)
Answer: It depends. There is nothing in the Florida Homeowners’ Association Act (Chapter 720 of the Florida Statutes) that specifies or limits who may serve as a proxyholder. The statute only provides that, to be valid, a proxy must be dated, must state the date, time, and place of the meeting for which it was given, and must be signed by the authorized person who executed the proxy.
Becker & Poliakoff and The American Red Cross present Prepare Your Community for a Disaster! Please join us for a unique presentation by Mr. Benjamin Bellucci, Disaster Program Manager for the American Red Cross Broward County Chapter, which is designed to prepare you and your association members for worst case scenarios.
Mr. Bellucci has trained local governments and first responders how to successfully navigate disaster events. We are proud to have him join us to discuss how to create an evacuation plan for your community and to prepare your board members, manger and association members to work together in the aftermath of an emergency.
Tuesday, August 2nd , 2016
12:00 p.m. – 1:00 p.m.
Becker & Poliakoff
1 East Broward Blvd. Suite 1800
Ft. Lauderdale, FL 33301
Question: We live in a gated community with a golf course. There are a number of lakes and ponds. Alligators seem to come and go, but are spotted frequently. In light of the recent tragedy that has been widely reported in the news, there has been discussion about posting warning signs. What are your thoughts on this? (A.L. via e-mail)
Answer: The association, as the owner of property, can be held liable if someone is injured on the property due to the association’s negligence. Negligence includes allowing licensees or invitees to enter an area of the owner’s property where risk of injury by a dangerous condition is foreseeable, but not readily apparent, and not warning the licensees or invitees of the danger. The property owner has a duty to maintain the property in a reasonably safe condition and a duty to prevent injury through the issuance of adequate warnings of known, but hidden, dangers.
Question: I regularly attend the board meetings of my condominium association. When I cannot attend, I make certain to read the minutes when they are posted. In the association’s quarterly newsletter, the president announced that the association would be changing the configuration of a conference room to allow for storage. Though the board is authorized in our declaration to approve material alterations, there was no vote taken at a board meeting on this. I believe the board is making decisions via e-mail, which I understand is prohibited by statute. To confirm this, I sent the association a certified letter requesting copies of all email communications between the board members and the property manager. Thirty days has passed since I sent the certified letter and I have not been provided with access to the e-mails. Shouldn’t they have provided me access within 30 days or do I have to wait 60 days before I can take further action? (T.T. via e-mail)
Becker & Poliakoff and CALL’s 2016 Legislative and Community Association Resource Guide (“Guide”) is now available for viewing and printing. The Guide is applicable to all three (3) types of shared-ownership communities (condominiums, cooperatives, and homeowners’ associations).
The 2016 Legislative Session ended without any significant piece of community association legislation passing. While there were many bills impacting community associations that were filed and heard in committee, none of the major bills actually made it to the floor of either the House of Representatives or the Senate. Nevertheless, it is important to look back on the 2016 Session and the bills that were considered because it is likely that these issues will continue to be debated in the future. In addition, there are some bills that passed that will be of interest to community associations, including one that will impact the way community associations process rental applications from service-members. In addition, this year’s Guide will focus two very important pieces of legislation that passed during previous legislative sessions, but are now becoming more important—fire sprinklers and electronic voting.
The 2016 Guide includes the following features:
• A summary of the bills that passed, and a summary of the significant bills that did not pass.
• Links to the legislative websites where you can access the final “Enrolled” version of the bills.
• Links to the legislative websites with the biographies of the bill sponsors.
• Information about electronic voting and Becker & Poliakoff’s new online voting software, BPBALLOT.
• Information about fire sprinkler retrofitting and opting out of fire sprinklers.
• Case Summaries
• A list of recommended “Action Steps” for associations as a result of legislation and case law.
To request a copy of the Guide, please click here. We trust that you will find the Guide easy to use and informative.
Question: I am preparing to return to my northern home for the summer and intend to deploy the hurricane shutters on my condominium unit. However, the association is advising me that I cannot deploy my hurricane shutters unless there is a storm warning. Is this permissible? (B.M. via e-mail)
Answer: Since hurricane season began on June 1, this is a timely question. Section 718.113(5) of the Florida Condominium Act provides that each board of directors of a residential condominium must adopt hurricane shutter specifications for each building within each condominium operated by the association which shall include “color, style, and other factors deemed relevant by the board.” The statute does not speak to the issue you have raised.
The courts have not addressed this issue either.
However, there is at least one DBPR arbitration decision (which, technically, does not have the binding force of “law”) that found that a rule that prohibiting the deployment of hurricane shutters except when a storm was “imminent” was unreasonable. However, the arbitrator seemed to indicate that a rule that provided that the association would undertake to deploy the hurricane shutters in the event of a storm might be enforceable.
Some feel that a building being “shuttered up” for extended periods is aesthetically displeasing and may invite those with criminal intent to view the building as an opportunity. On the other hand, it is not necessarily feasible for an absentee owner to be able to assure that his or her shutters are deployed when a major storm is approaching, as things tend to get chaotic during emergency preparations.