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Florida Condo & HOA Legal Blog

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

What is Your Community’s Most Outlandish Emotional Support Animal Request?

Posted in Education, Service Animals/Emotional Support Animals

emotional support animal in condoI am going to preface this blog post by stating that there are individuals who struggle with emotional disabilities and who can legitimately benefit from the use of an emotional support animal.

However, this blog post is not about those people.

Unfortunately, those of us who live in shared ownership communities, serve on their boards or represent these types of communities have all seen our share of abuse in this area. The legal pendulum seems to have swung very far in the direction of protecting the rights of people who want pets in “no pet” communities regardless if those people have fraudulently framed their requests as being a necessity for their emotional well-being. Meanwhile, the rights of people who specifically purchased a home in a pet-restricted community due to allergies and other health issues, fears/phobias or simply preference are not protected by the government with the same fervor and the board is often prevented from protecting their rights.

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Estoppel Bills Dealt Severe Blow in Florida Legislature

Posted in CALL Alert, Legislation

call_logo.pngThe so-called “estoppel bills” (HB 611 and SB 736) were dealt a severe blow this week when the Senate version, SB 736, was “temporarily passed” by the Senate Regulated Industries Committee. That means that SB 736 has not been approved in any committees in the Senate, and with only 5 weeks left and 3 committees that it must go through, the chances of it passing is getting much less likely. The House version, HB 611, was approved in its second committee of reference. However, there were two “no” votes. Thanks to Rep. Fitzenhagen and Rep. Geller for voting “no” on this bill.

Does The ADA Apply To Condominiums in Florida?

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

ADA Compliance in Florida CondosQuestion: In a condominium that permits short term rentals, must the property be ADA compliant and who must make these modifications or alterations? J.B. (via e-mail)

Answer: This is an extremely complex area of law. Important additional facts would include when the building was constructed, how many units are rented out on a short term basis, whether the association is involved with renting units, and who is in “control” of the units.

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Can Corporate Owners Serve On Condominium Board?

Posted in Board Eligibility, Reader Q&A

ThinkstockPhotos-83066175Question: Our condominium documents require that board members be either the title holder of the unit or the spouse of that person. We currently have a unit that is owned by an “LLC”, and now the person who claims to own the LLC is requesting to vote at the annual meeting and run for the board. Because only unit owners can run for our board of directors, how do we treat a unit owned by an LLC? R.S. (via e-mail)

Answer: Chapter 718, the Florida Condominium Act, defines the unit owner as the record owner of legal title to a condominium parcel. The statute does not discuss how units that are owned by entities, such as corporations, partnerships, limited liability companies, or trusts, are to be treated. Well written condominium documents will address how to treat a unit that is owned by such an entity.

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Think twice before installing security cameras in condominiums

Posted in Common Areas, Maintenance & Repair, Material Alternation, Safety and security

magill_l_20150109Does your condominium building have security cameras that were installed by the developer?  Have there been violations of the association’s security protocol, such as unauthorized use of key fobs and contractor access to the building without registering with the front desk?  If the answer to both questions is “yes”, would you think that installing a few additional cameras would constitute a material alteration or addition to the common elements, thus requiring unit owner authorization by vote?

 

Regular readers of this blog are sure to know that Section 718.113(2)(a), Florida Statutes says:

Except as otherwise provided in this section, there shall be no material alteration or substantial additions to the common elements or to real property which is association property, except in a manner provided in the declaration as originally recorded or as amended under the procedures provided therein. If the declaration as originally recorded or as amended under the procedures provided therein does not specify the procedure for approval of material alterations or substantial additions, 75 percent of the total voting interests of the association must approve the alterations or additions. This paragraph is intended to clarify existing law and applies to associations existing on October 1, 2008.

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Who Replaces Floor Tile After Condo Association Pipe Repair Project?

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

503043509Question: Our condominium buildings were built over 30 years ago with cast iron pipes. These pipes are cracking and collapsing under the bathroom concrete floors of the first floor units. The association is in the process of replacing the pipes, which requires the association to first remove the flooring and break up the concrete floor in the unit bathrooms to get to the pipes under the concrete foundation. Given the age of the buildings, it is more likely than not that the floor coverings (tile) that are being removed are not the same tile that was installed by the developer. Who is responsible for replacing the floor tiles once the pipes have been replaced? M.H. (via e-mail)

Answer: It is necessary to review your declaration of condominium to answer this question. Most declarations include what is often referred to as an “incidental damage” clause, which will specify who is liable for repair or replacement of portions of the condominium property which must be disassembled or destroyed when the association performs work on common elements. If your incidental damage clause generally provides that the association is responsible for repairing “incidental damage”, the Arbitration Section of the Division of Condominiums, Timeshares, and Mobile Homes has interpreted such provisions to require that the association restore the unit to the condition in which it existed prior to the reconstruction work.

The legal analysis is usually different when unit owner “upgrades” are involved. This issue often comes up regarding “after-market” balcony/lanai floor tiling placed on the concrete slabs. The arbitrators have generally ruled that the risk of replacing upgrades or betterments falls on the party primarily benefiting from the improvement – the unit owner.

Therefore, your association’s attorney should be able to review your declaration and render an opinion. I would note that this clause is often overlooked in “boilerplate” condominium documents created by developers. Carefully chosen wording can have significant economic consequences, and can help avoid litigation.

#HOAs and HAM Radios: Will proposed Federal Legislation harm community associations?

Posted in advocacy, Covenant Enforcement/Violations, Legislation

magill_l_20150109Legislation was introduced in House of Representatives in 2014 that would allow homeowners or residents in HOA communities to have, install and operate towers and large antennas used in HAM radio broadcasting on their property, despite any HOA architectural guidelines or restrictions prohibiting these types of improvements.  That bill was recently filed again for the 2015 legislative session.

The bill is known as the Amateur Radio Parity Act of 2015 and now reportedly has 22 cosponsors.  According to the FCC, there are millions of amateur operators in all areas of the world that communicate with each other directly or through ad hoc relay systems and amateur-satellites.  The FCC’s current rules are based on the Amateur Radio Memorandum Opinion and Order that was released in 1985.  This Order requires local governments to reasonably accommodate amateur operations, while still allowing ordinances regulating equipment for height, safety and aesthetics concerns.

In areas where the FCC regulates the services, an amateur operator must have an FCC or Canadian license.ham radio

Community Associations Institute (CAI) recently issued a call to action to its members across the country claiming “if a HAM radio “reasonable accommodation” standard becomes federal law, community associations face the real prospect of having limited or even no say on the installation of towers and large, fixed antennas used in HAM radio broadcasting.”

The bill says that within 120 days after enactment the Federal Communications Commission will be required to amend the Code of Federal Regulations, so that law prohibits application to amateur service communications of any private land use restriction, including a restrictive covenant, that–

  1. precludes such communications;
  2. fails to reasonably accommodate such communications; or
  3. does not constitute the minimum practicable restriction on such communications to accomplish the legitimate purpose of the private entity seeking to enforce such restriction.

This is largely the same language used with respect to the inapplicability of covenants or restrictions with respect to Over the Air Reception Devices Act that protects a property owner or tenant’s right to install, maintain or use an antenna to receive video programming from direct broadcast satellites (DBS), broadband radio services (formerly referred to as multichannel multipoint distribution services or MMDS) and television broadcast stations (TVBS).  According to the FCC, if there is a question as to whether a community association restriction is valid or enforceable, the burden is on the HOA to prove that the restriction or rule does not violate the federal regulations.  Should the same process be applied with respect to HAM radios and equipment?

If you are interested in weighing in on this development, please visit the CAI website: http://www.caionline.org/govt/advocacy/Pages/AdvocacyCenter.aspx

Announcing this year’s Florida Communities of Excellence Awards Finalists

Posted in Communities of Excellence

Water Conservation (Indoors and Outdoors): Small communities

  • Apogee Beach Condominium Association, Hollywood
  • Milano at Deering Bay Condominium Association, Coral Gables
  • Tuscany Bay Master Association, Naples

Water Conservation (Indoors and Outdoors): Large communities

  • On Top of the World Communities, Ocala
  • Stonecrest POA, Summerfield
  • Timber Pines Community Association, Spring Hill

Energy Efficiency: Small communities

  • Castillo at the Westshore Yacht Club, Tampa
  • City 24, Miami
  • Venetian Condominium, Ft. Lauderdale

Energy Efficiency: Large communities

  • On Top of the World Communities, Ocala
  • Royal Stewart Arms, Dunedin
  • Villaggio Homeowners Association, Lake Worth

Florida-Friendly Landscaping: Small communities

  • Dockside at Ventura Condominium Association, Orlando
  • Madeira Cove Condominium Association, Madeira Beach
  • Promenades East Condominium Association, Port Charlotte

Florida-Friendly Landscaping: Large communities

  • Evergrene, Palm Beach Gardens
  • MetroWest Master Association, Orlando
  • Wellington at Seven Hills HOA, Spring Hill

Civic Volunteerism & Advocacy: Small communities

  • K. Hovnanian’s Four Seasons at Delray Beach Homeowners Association, Delray Beach
  • River Dance Condominium Association, Bradenton
  • The Solaire at the Plaza, Orlando

Civic Volunteerism & Advocacy: Large communities

  • Egret Landing at Jupiter POA, Jupiter
  • Fiddlesticks Country Club, Ft. Myers
  • Valencia Pointe Homeowners Association, Boynton Beach

Communications & Community: Small Community

  • Mirror Lakes, a 55+ Adult Community, Boynton Beach
  • Pines of Delray West, Delray Beach
  • Willoughby Golf Club, Stuart

Communications & Community: Large community

  • IslandWalk of Naples, Naples
  • Southwood Residential Community Association, Tallahassee
  • Stonecrest POA, Summerfield

Family Friendly Programs & Initiatives: Small communities

  • Buckingham Estates, Sanford
  • Misty Oaks Park Homeowners Association, Ocala
  • Paramount on Lake Eola, Orlando

Family Friendly Programs & Initiatives: Large communities

  • Heritage Park of St. Augustine, St. Augustine
  • Independence, Winter Garden
  • Pembroke Falls HOA, Pembroke Pines

Safety & Security: Small communities

  • L’Hermitage I Condominium Association, Ft. Lauderdale
  • Little Harbour Homeowners Association, Naples
  • Venetian Condominium, Ft. Lauderdale

Safety & Security: Large communities

  • Fiddlesticks Country Club, Ft. Myers
  • Island Walk of Naples, Naples
  • Country Club of Mt. Dora, Mt. Dora

Disaster Preparedness Initiatives: Small communities

  • Overlook at Baymeadows Condominium Association, Jacksonville
  • The Solaire at the Plaza, Orlando
  • Trump Hollywood, Hollywood

Disaster Preparedness Initiatives: Large communities

  • Kings Point, Sun City Center
  • On Top of the World Communities, Ocala
  • VeronaWalk, Naples

Financial Innovation: Small communities

  • Island Pointe, Bay Harbor
  • Tuscany Bay Homeowners Association, Boynton Beach
  • Venetian Condominium, Ft. Lauderdale

Financial Innovation: Large communities

  • Egret Landing at Jupiter POA, Jupiter
  • St. George Plantation, St. George Island
  • Turtle Cay, Riviera Beach

“The Comeback Kid”: Small communities

  • The Towers Condominium Association, Ft. Myers
  • Windward Bay Condominiums, Longboat Key
  • Yacht Harbour Condominium, Miami

“The Comeback Kid”: Large communities

  • The Charter Club, Miami
  • Tradewinds, a Metrowest Condominium Association, Orlando
  • Turtle Cay, Riviera Beach

“Trendsetter Awards”

In this category, no finalists are named in advance. Winning communities will be notified within the next three weeks.

Congratulations to all the communities that entered and to the finalists.

And now is the time to register to attend the Conference & Awards Gala on May 15. f you are a board member, resident, or active association manager, there is no cost to attend the Conference & Awards Gala, but you must register.

Alan Penchansky
Executive Director
The Florida Communities of Excellence Awards

Town Hall Meetings Can Trigger Sunshine Law

Posted in Meetings, Operations, Reader Q&A

493958387Question: Our community holds monthly “informational” meetings, held right before the board’s regular meeting. All members are encouraged to attend, and the manager is there as well. Board members do not “run” the meeting, but participate in the audience like everyone else. One of our owners wants to videotape these meetings, and some people object. Is there a right to videotape informal gatherings of this nature? T.F. (via e-mail)

Answer: I will give you a lawyer’s answer, it depends. Section 720.306(10) of the Florida Homeowners’ Association Act permits members to audio or video record “meetings” of the board. The statute goes on to define a “meeting” of the board as any gathering of a quorum of the board where association business is conducted.

I assume that a quorum of the board participates in your “informational” meetings as audience members. However, this does not necessarily make the gathering a “board meeting”, since it is not the board that is gathering, but rather the membership. Certainly, board members do not give up their rights as members by serving on the board.

In this instance, it would be my opinion that this gathering is not a “meeting” of the board. Also, I would say it is not a “meeting” of the membership, because it presumably has not been called pursuant to statutory and documentary notice procedures. Therefore, while perhaps debatable, I would think that there is no legal right to record these gatherings.

A different answer would apply if the board sits “as a board” (for example, at a head table) and allows members in a “town hall” setting to give input to the board on pending association issues, informally discusses these issues amongst the board members at such a gathering, and the like. This would constitute “conducting business” by a quorum of the board and would constitute a “board meeting”, and the recording rights contained in the statute would apply.

40 Year Recertification / Some Additional Thoughts

Posted in Fiduciary Duty of Board of Directors, Maintenance & Repair

magill_l_20150109We have already explained the Building Safety Inspection Program adopted by Broward and Miami-Dade Counties.   Building owners (operators or managers) must have the structure and electrical systems evaluated professionally by an engineer or architect.  The inspection is to identify any structural or electrical deficiencies that pose an immediate threat to life safety or where failure of a critical component is imminent.  Parking lot illumination is of particular importance in Miami-Dade County.  The Florida Building Code requires all buildings and structures to be maintained in a safe condition, regardless of the age of the building or structure and the program is designed to verify compliance with minimum standards.

 

I had some additional thoughts about preparation for the inspection from the perspective of a Board member or CAM.

Access to the Units.  While many communities have rules on the book requiring owners to furnish the association with a key or other access to the unit, is this rule strictly enforced?  Are you sure you have access to the units to facilitate the electrical and life safety (smoke detector) inspections?    Failing to have access may cost you precious time within which you need to comply and present the association with unanticipated legal costs.

Delineation of Responsibility.  The inspection includes a review of the electrical panels within the units (or at least a representative percentage of the units).  Have owners made modifications or changes that are not compliant or may pose a safety risk?  Maybe they overloaded the panel or simply removed labels?  The electrical code requires all circuits and circuit modifications to be legibly identified.  How will you handle mandatory repairs?  Will your owners own-up to their responsibility to correct deficiencies in the electrical panel if required?  Is the responsibility for repair clearly allocated to the owner or is there an ambiguity?  Part of the preparation for the inspection (and required repairs) could include a review of the governing documents to determine whether the association has sufficient self-help or other enforcement techniques to enable it to ensure repairs are made within the time constraints imposed by the building department.

Engineer or Architect’s Role.  Do you want the engineer or architect to simply identify the deficiencies or do you want more active involvement?  Think about what services you intend the engineer to perform when entering into the contract for the inspection.  Will this professional (engineer or architect) have the expertise to prepare specifications for the repair?  Will they oversee the work?  Will they help you through the bidding process?

Arrangements for Discounted or Bulk Projects.  What should happen if you discover practically every unit needs new GFI outlets?  Can you imagine the havoc associated with dozens of electricians in the building at the same time to perform this service?  Even logistically, where will all the service providers park?  How are you going to keep track of them?   Language in the governing documents can provide the association with the authority to contract for the work as a bulk project, either as a common expense or at the individual expense of the owner (depending on the actual wording).  That way the Board knows that the contractor is licensed and insured and can have standing to pursue warranty work if necessary.

Advance preparation will clearly help you to avoid common problems faced by associations in connection with building repairs.