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Florida Condo & HOA Legal Blog

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

Should your condo or HOA have an Automatic External Defibrillator?

Posted in Fiduciary Duty of Board of Directors, Liability, Operations

magill_lThe American Heart Association encourages the purchase and availability of automatic external defibrillators (AED) and many community associations have already purchased this life safety equipment for on-site use.  These machines have become commonplace in airports, hotels, supermarkets and shopping centers throughout the country.

You may wonder if there is any downside to having this machine available in the community association setting.  While Florida’s Cardiac Arrest Survival Act provides broader liability insulation than the Good Samaritan Statute, the protection is not absolute.   The Cardiac Arrest Survival Act does protect the owner of the device from civil liability if:

  • The device is properly maintained and tested; and
  • Employees or agents of the owner have received appropriate training in the use of the device.

However, the owner is still protected from liability and specific training isn’t required if: 

  1. The device is equipped with audible, visual, or written instructions on its use, including any such visual or written instructions posted on or adjacent to the device;
  2. The employee or agent utilizing the device was not an employee or agent who would have been reasonably expected to use the device; or
  3. There wasn’t a reasonably sufficient time period between hiring the employee or agent and the event, or between the acquisition of the device and the occurrence of the harm.

As a practical matter I am told that all AED devices have audible commands.  The device will analyze the victim’s hearth rhythm once the electrodes are placed on the victim’s chest.  If the circumstances warrant, the device will charge and announce when it is time to push the “shock” button.  The local American Red Cross office can facilitate purchase of a defibrillator at a discount and set up free training on the device. The American Red Cross, along with other organizations, lead CPR/AED certification classes for many groups (including community associations), either for free or a nominal charge.

Nonetheless, it’s a good idea to consult with your insurance adviser or liability carrier to learn whether there are special conditions associated with ownership or use of a defibrillator.  Associations must test the battery every so often (once a year or as otherwise recommended) and make sure to replace the pads before they expire.

SB 356 Not Designed to Change Rental Regulations in Community Associations

Posted in Legislation, Reader Q&A, Rental

483804925(1)Question: In your latest review of the new laws impacting community associations, you mentioned SB 356 and the change to the oversight of vacation rentals. Our community is a mix of condominium and homeowners’ associations, governed by a master board that is regulated by Chapter 720, Florida Statutes. In our governing documents, we each establish a limit on the number of times a unit may be leased each year and we each establish the minimum number of days for each lease. My question is: Does SB 356 render our limits and requirements unenforceable? G.Y. (via e-mail)

Answer: No, SB 356 will not impact the limits and minimum lease terms in your governing documents. SB 356 was primarily a battle between the vacation rental industry and local governments (i.e., cities and counties) over how much authority local governments could exercise over vacation rentals. Some local governments wanted to be able to restrict short-term rentals in certain areas and the original version of the bill would have allowed local governments to adopt ordinances to curtail vacation rentals.

However, because of concern over the property rights of owners, the final version of SB 356 specifically states that local governments may not prohibit vacation rentals or regulate the duration or frequency of rental of vacation rentals. SB 356 only addresses local governments and does not affect the ability of a condominium or homeowners’ association to regulate rentals or establish minimum lease terms.

Before the Bottom Drops Out – Investigate Sinkhole Activity While There’s Still Help Available

Posted in Construction Issues & Contractual Disputes, Hurricane/Disaster Issues, Sinkhole

hurricane_recovery_team

One of the most active sinkhole regions of the state is within the area bounded by the triangle formed by extending a line from Ocala to Orlando and over to Tampa. Many community associations that could be impacted in this region may be unaware that these claims will be covered by their property insurance at this point. However, sinkhole activity is certainly not confined to any one area as we are seeing it occur throughout our state (there are a number of claims in the Miami Dade County area recently, and even up into Palm Beach County).

A procedure is available under current law that authorizes policy holders who have evidence of possible sinkhole activity such as exterior cracking of walls, roadways, sidewalks, or interior cracking and other signs of structural movement or subsidence, to present that information to their property insurance carriers and cause the carriers to conduct a structural investigation to identify possible sinkhole activity. In many cases, the insurer must engage a professional engineer for this assessment. The insurer will be required to notify the insured about the cause of the damage identified. If there is sinkhole activity, obviously, insurance benefits may be available under current law; if the investigation reveals no current activity that can be attributed to sinkholes, then that information is also useful to the association when policy renewal time comes around.

Unfortunately, every year the powerful insurance lobby is successfully convincing our legislators to decrease the insurance coverage available for sinkholes. In 2011, for example, the legislature decreased the existing statute of limitation for these claims to provide that an initial, supplemental or reopened sinkhole claim must be asserted against the insurer within 2 years after the policyholder “knew or reasonably should have known about the sinkhole loss.” This standard is objective, meaning that actual knowledge of sinkhole activity is not required if the circumstances show that the insured should have investigated. Given the importance (i.e. the potential cost to the insurance industry) of this Florida phenomenon, the industry will undoubtedly continue to push for more gains at consumers’ expense. As such, volunteer boards are well-advised to determine whether they may be affected by sinkholes right now and, if so, obtain the level of benefits still available.

Becker & Poliakoff’s Hurricane Recovery Team handles all types of disasters including sinkholes. We can arrange a basic investigation for your community, at no cost, sufficient to determine whether you need to take the next step and notify your property carrier. We can also review your current insurance policies to determine whether those policies fully adopt the current statutory scheme in Florida, or have broader coverage available for sinkholes. For more information, contact us at 1-844-BP-ASSIST (1-844-272-7747).

Changes to Condominium Property are Highly Scrutinized

Posted in Arbitration & Court Rulings, Maintenance & Repair

magill_lThe Board of Directors has the responsibility and authority to maintain the common elements of a condominium. On the other hand, Section 718.113(2)(a), Florida Statutes, requires 75% of the entire membership to approve a material alteration or substantial addition to the common elements, unless the declaration provides for an alternative approval method. The determination of what constitutes maintenance, as opposed to an alteration or addition, is often tricky.

For example, is replacing the furniture in the lobby or on the pool deck a material alteration? What about making changes to the landscaping or using a different pattern when replacing carpeting? Can you change the curve or slope of the driveway?

The Florida courts have set a standard. A change to the condominium property will be considered material or substantial if it “palpably or perceptively varies or changes the form, shape, elements or specifications” of the common elements “in such a manner as to appreciably effect or influence its function, use or appearance.” Sterling Village Condominium, Inc. v. Breitenbach, 251 So.2d 685 (Fla. 4th DCA 1971).

A recent ruling issued by the Department of Business and Professional Regulation, Division of Florida Condominiums, Timeshares and Mobile Homes points out how careful Boards of Directors need to be when making decisions regarding the maintenance, care, replacement and improvement of the condominium property. In Simkin v. Nine Island Avenue Condominium Association, Inc., Arb. Case No.: 2013-04-0108, Final Order (May 1, 2014), the association was ordered to conduct a membership vote for a myriad of changes and if the members did not vote in favor, restore the condominium property back to its pre-existing condition.

Some of the changes deemed material or substantial included:

  • Changing the color of the curbing and inside walls of the Koi pond from grey to blue;
  • Replacing cushions on the patio furniture with blue cushions rather than using a grey-blue combination;
  • Rebuilding a trellis with Pine wood instead of Cypress wood;
  • Staining the wood trellis and gazebo a dark brown color rather than leaving them the natural wood color;
  • Failing to rebuild an observation deck;
  • Failing to maintain or replace a water filtration system;
  • Replacing the ladders in the pool with 3-step ladders instead of 5-step ladders; and
  • Removal of lush landscaping at the entrance to the condominium, among other things.

The association attempted to defend each one of these changes in different ways. The Board of Directors claimed that they were returning the gazebo and pond to the original coloring, but a sales video didn’t support that contention. The Board of Directors claimed that the original water filtration system no longer functioned and disconnecting it was far better than subjecting the owners to a health hazard. The Board of Directors claimed that changes to the design of the trellis were required as a result of new building codes and argued that the owner waited too long to complain about its failure to rebuild the observation deck.

While certain design changes may have been mandated by the building code, the arbitrator found that the Board of Directors failed to minimize those changes. The arbitrator said the association was required to instruct its engineer to produce a design that was as close as possible to the original design. Keep this in mind in connection with concrete restoration projects that involve replacing or re-designing railings and balustrades.

With respect to the water filtration system, the arbitrator said “the maintenance doctrine does not permit an association to fail to maintain a common element and then discontinue its use because the system became inoperable”. Keep that in mind if you have an old sauna or security system that doesn’t work or tennis courts that no one uses.

Finally, the arbitrator found that the owner’s complaints about the observation deck were timely. There is a five year statute of limitations with respect to this type of claim. However, while the deck was initially removed in 2004, the board consistently advised the owners that it would be rebuilt after other projects were finished. It wasn’t until 2011 that the board announced it decided not to rebuild the deck. The arbitrator found that the owner’s cause of action didn’t accrue until the board announced its new intentions with respect to the deck.

Rulings like these cause me to be far more conservative when advising a client whether a particular project constitutes an alteration or addition requiring a membership vote.

Condominium Associations Have no Right to “Give Out” Unit Owners’ Private Information

Posted in Official Records, Operations, Reader Q&A

459162233Question:  I am the secretary of our association. I have read all your recent articles about the new condominium laws, but still do not understand what information contained in owners’ files I am permitted to give out. Could you summarize the current rules? E.L. (via e-mail)

Answer:  As a starting point, a condominium association has no right to “give out” information pertaining to owners to any third party who is not a member of the association. There may be limited exceptions, such as the need to comply with a court subpoena. Beyond that, however, I do not believe an association should ever give out owner information that cannot be found in the public records.

With respect to the rights of other unit owners, Florida has a very broad “official records” law. Basically, all of the information the association has about each of its owners is an “official record.”  Generally speaking, all “official records” are available for review by other owners. For example, if a unit owner wants to look at the payment history of another unit owner, they have the right to do so.

There are certain owner records that are exempted from this rule and can never be supplied to other unit owners. This category includes medical records of unit owners, and information obtained in connection with the approval of a sale or lease.

Next, there is “protected information” which cannot be released to other unit owners unless the subject unit owner consents. Protected information includes social security numbers, driver’s license numbers, credit card numbers, and passport information. There is likely no reason an owner would consent to another owner having the right to review this information.

Protected information also includes a unit owner’s e-mail address, facsimile number, emergency contact information, and addresses other than those used by the association for official notice (such as the address of a vacation home). Unit owners may consent to the release of this information to other unit owners, but they must do so in writing.

Finally, as to telephone numbers, the association can print and distribute a telephone directory including all telephone numbers of each unit owner. However, an owner may object in writing to being included in the directory, in which case their telephone numbers can not be published.

In summary, most records of the association are available for inspection by other owners (upon written request) but should not be made available to the general public. Certain records (medical records and records pertaining to sales and leases) may never be disclosed to other unit owners. Certain protected information (credit card numbers, social security numbers, etc.) could be disclosed to other unit owners, if the subject unit owner consents, but they would be unlikely to do so. Other “protected” information (such as e-mail addresses, facsimile numbers, emergency contact information, and non-notice addresses) are subject to disclosure through a permission form. Telephone numbers are “fair game” for the association to publish, with or without the owner’s written consent, unless the owner objects in writing to the publication of his/her number.

Condo/HOA Board Member Certification Class

Posted in Events

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Everything You Wanted to Know About Being a Board Member… But Were Afraid to Ask!

Please join us on Saturday, July 12 at 9:30 am for a free Board Member Certification Class approved by the Division of Florida Condominiums, Timeshares and Mobile Homes.

Provider #0000811, Course #9626099

REGISTER NOW BY CLICKING HERE.

Topics Covered:

  • Fiduciary Responsibilities with Cases Addressing Board Liability
  • Official Records – Maintenance and Issues involving Owner Access to Records
  • Dispute Resolution – Board Rulemaking and Enforcement Issues
  • Budgets, Reserves and Financial Reporting - with Explanation of Recent Caselaw Regarding Collection of Assessments
  • Elections and Board Eligibility Issues
  • Insurance and more

Becker & Poliakoff
1 East Broward Blvd, Suite 1800
Ft. Lauderdale, FL 33301

Click HERE for directions to our NEW location
as well as parking instructions.

If you need any additional information, please contact 
Nicole Pare at npare@bplegal.com or call 954-987-7550 ext. 15119.

 

Community Update 2014, Volume 5

Posted in Community Update, Construction Issues & Contractual Disputes, Insurance

Lisa MagillOur legislative town halls have provided active community leaders with insights into the new laws that impact community association operations. Over 100 people attended the session held in Fort Lauderdale where the panel consisted of no less than six (6) local legislators. CALL partnered with Biscayne Neighborhood Association, Brickell Homeowners Association, and Downtown Neighbors Alliance in connection with the session held in Miami-Dade. Contact call@bplegal.com to find out whether a session is planned for your area.

In this Issue:

Have you ever thought about having the statutes, questions and answers to common community association questions and a direct link to CALL in your pocket?  Now you can.  Becker & Poliakoff, P.A. announces the launch of a brand new App available for Smartphone and Android users.  Read all about it in the article The Latest App.

Additional articles include:

Contracts for Green Construction

Deadlines to Sue for Building Defects

Casualty Repairs vs. Routine Maintenance

Condo Boards’ Access to Unit Limited by Court Decisions

Posted in Case Law & Court Rulings, Fiduciary Duty of Board of Directors

magill_lTwo recent cases decided by Florida’s Fourth District Court of Appeal impose conditions on access to individual units by condominium association boards.  The statute provides the association with the irrevocable right of access.  Section 718.111(5), Florida Statutes says:

 

RIGHT OF ACCESS TO UNITS.  The association has the irrevocable right of access to each unit during reasonable hours, when necessary for the maintenance, repair or replacement of any common elements or any portion of a unit to be maintained by the association pursuant to the declaration or as necessary to prevent damage to the common elements or to a unit or units.

 The court focused on the word “necessary” in both cases – both ruling that additional facts had to be shown in order for the association to prove that access was indeed necessary.

Small v. Devon Condominium B Association, Inc. was issued in April of this year and involved access to the unit for the purposes of performing monthly pest control.  The unit owner had allowed the association to have her unit treated for pests on a monthly basis for a number of years.  She asked the association to discontinue the service in 2005, claiming she would use an alternative non-chemical pest control treatment.  The association agreed until 2009 when it demanded she allow the association to resume pest control treatments.  The owner refused and the dispute headed to arbitration before the Division of Florida Condominiums, Timeshares and Mobile Homes.

The arbitrator ruled in favor of the association so the owner filed for a trial de novo as is permitted by the statutes.  Section 718.1255, Florida Statutes makes participation in the arbitration program mandatory, but non-binding.  The losing party in an arbitration matter has thirty days to re-file the case in court.  The case proceeds from the beginning (de novo).

The association was able to obtain a summary judgment granting it access for the pest control treatments.  It then was able to obtain a final judgment containing the specifics of the treatments – saying the owner had to permit access on the 3rd Monday of each month for this purpose.  She had the option of providing the pesticides or hiring her own vendor to perform pest control services.  When she continued to refuse to allow the association’s vendor to do this work, it moved for contempt, which the court granted.  The unit owner, refusing to give up, appealed the ruling to Florida’s Fourth District Court of Appeal.

On appeal the court focused on whether access was necessary.  In other words, the association had to show that it was necessary to treat this particular unit on a monthly basis. An expert testified there was no evidence of pests in the unit.  The court considered the fact that there was a period of at least four years without pest control, seemingly without incident and found that the association did not meet its burden to show that what it wanted was reasonable under the circumstances.  The case went back to court, again.

An earlier case established a two prong test to determine whether a condominium board of directors had the right to enter a unit.  The test is reminiscent of the test to determine whether a board made rule or regulation is valid and enforceable.  The board has to show: 

  1. it has the authority to take the desired action (in this case, perform pest control services); and
  2. that such action is reasonable under the circumstances.

 The dispute in Hollywood Towers Cond. Asn. v. Hampton involved invasion of the unit in connection with a balcony/concrete repair project.  The expert hired by the association recommended performing concrete repairs at least 4 inches beyond the actual corrosion.  The unit owner’s expert found that the work done on the balcony itself was perfectly adequate and therefore invasion into the unit was not necessary.  Like the Devon case, the court ultimately required the dispute to go back to the trial court for a determination of whether the association’s desire to invade the unit, due to the advice of its expert, was reasonable under the circumstances.

The take-away here for community leaders is to understand that the association may have irrevocable access to the unit, but such access is not unfettered.  There has to be a valid reason to enter into the unit and the board must act reasonably.  How do you know what is reasonable under the circumstances?  Well enlisting the help of experts in the particular field is certainly helpful, as is conducting a survey of the operations of similarly situated community associations.  In the end the board has to make a judgment call and then be prepared to defend that exercise of discretion.

Florida Condo, HOA and Co-op Law Review Continues

Posted in Legislation, Reader Q&A

old_capitolToday’s column is the fifth and final installment of our annual series reviewing new laws affecting community associations, condominiums, cooperatives, and homeowners’ associations. In the first four installments, we looked at changes for condominiums, cooperatives, and homeowners’ associations found in HB 807, the main Bill affecting community associations.

Today, we will look at some miscellaneous Bills that also affect the operation of associations:

• Community Association Managers:  HB 7037, effective July 1, 2014, according to its sponsors, is intended to clarify what tasks a manager can perform without “practicing law”, an issue that is also currently before the Florida Supreme Court. HB 7037 states that managers are, among other things, allowed to determine the number of days required for statutory notices, determine amounts due to the association, draft minutes, and prepare estoppel certificates. The new law also provides professional liability standards for community association managers and management companies. The new statute goes on to provide that while a management agreement may provide for limited “indemnification” (hold harmless) from the association to the manager, indemnification agreements may not cover any act or omission that violates a criminal law, or any case where a manager derives an improper personal benefit, is grossly negligent, acts recklessly or in bad faith, or acts with malicious purpose or in a manner exhibiting wanton and willful disregard for human rights, safety, or property.

• Operation of Non-Residential Condominiums:  SB 440, effective July 1, 2014 provides that numerous provisions of the Florida Condominium Act that apply to residential condominiums do not apply to non-residential condominiums. The most typical type of non-residential condominiums include commercial or office condos, but there are other types of non-residential condominiums including marinas.

• Vacation Rentals:  SB 356, effective July 1, 2014 provides that local laws and ordinances may not prohibit vacation rentals or regulate the duration or frequency of vacation rentals. The apparent intent is to vest this authority solely at the state level. However, the prohibition does not apply to any local law or ordinance adopted on or before June 1, 2011.

• Flood Insurance:  SB 542, effective June 13, 2014 provides that an authorized insurer may offer personal lines residential flood insurance policies. The Bill is intended to offer an alternative to the National Flood Insurance Program (NFIP). The Bill does not apply to commercial or commercial residential policies, and therefore condominium associations would not be able to take advantage of this law.

• Citizens Wind Insurance/Resort Condominiums:  HB 1089, effective July 1, 2014 provides that for “wind only” coverage for commercial lines residential condominiums, a condominium is ineligible for coverage from Citizens if fifty percent or more of the units are rented more than eight times in a calendar year for a rental agreement period of less than thirty days.

• Property Insurance:  SB 1672, effective July 1, 2014 directs Citizens to stop writing new commercial residential multi-peril policies for areas eligible for coverage in the “coastal account.”  Instead, Citizens may offer separate wind-only policies and commercial residential policies excluding wind. Citizens may, however, continue to insure commercial residential multi-peril policies on a building that is insured by Citizens on June 30, 2014. This Bill also prohibits insurance agents and adjusters (among others) from accepting referral fees or compensation from an inspection company related to an inspection needed to obtain insurance coverage. Further, public adjusters are prohibited by the new statute from accepting a power of attorney that vests in them the right to select the persons or companies that will perform repairs on an adjusted property.

• Insurance Claimant Rights:  SB 708, effective July 1, 2014 prohibits insurers in the State of Florida from denying claims on residential policies on the basis of misrepresentation in the application if the policy has been in effect for more than ninety days. The new law creates a “homeowners claim bill of rights” for personal line residential policies.

New Florida Condo & HOA Laws Effective July 1, 2014

Posted in Legislation, Reader Q&A

old_capito_350lToday’s column is the fourth installment of our annual series reviewing new laws affecting community associations, condominiums, cooperatives, and homeowners’ associations. In the first three installments, we looked at changes for condominiums and cooperatives in HB 807, the main Bill affecting community associations.

Since last week’s column, HB 807 has been signed by the Governor and will become law effective July 1, 2014. Today, we will focus on changes applicable to homeowners’ associations:

• Official Records:  Similar to the law for condominiums and cooperatives, Section 720.303(5) of the Florida Homeowners’ Association Act has been amended to provide that an association may print and distribute a directory containing the name, parcel address, and telephone numbers for each parcel owner. However, an owner may exclude his or her telephone numbers from the directory by so requesting in writing to the association. Further, a parcel owner may consent, in writing, to the disclosure of other “protected” information, such as e-mail addresses.

• Emergency Powers:  A new Section 720.316 has been added to the Homeowners’ Association Act granting an HOA certain “emergency powers” after catastrophic events such as a hurricane. Included within such powers are the authority to implement a disaster plan, which may include shutting off utilities, and taking action to mitigate further damage to the community after a catastrophic event.

• Access to HOA Board Meetings For Handicapped Persons:  Sections 720.303(2)(a) and 720.306(1)(a) of the Homeowners’ Association Act have been amended to provide that board meetings must be held at locations which are accessible to physically handicapped persons. However, this requirement comes into play only if a request is made by a physically handicapped person who is entitled to attend a board meeting. This law does not apply to condominium or cooperative associations, just homeowners’ associations.

• Mailing Out Amendments to Governing Documents:  Pursuant to an amendment to the statute adopted last year, within thirty days after recording an amendment to the association’s governing documents, the association must mail copies of the amendments to all members. This can result in significant additional and unnecessary expense if the amendments were also sent out to the owners before the meeting. Under the new law, if a copy of the proposed amendment was provided to the members before they voted on the amendment, and the proposed amendment was not changed before the vote, the association may in lieu of mailing out the recorded amendment, provide written notice that the amendment was adopted. The notice must identify the official book and page number of the instrument where the amendment was recorded. The association must also notify members that a copy of the actual recorded amendment is available at no charge to the member upon written request to the association. The notice of adoption and copies of the recorded amendment, when requested, may be provided by e-mail to those parcel owners who previously consented to receive association notices electronically.

• Marketable Record Title Act:  Section 712.05 of the Marketable Record Title Act (commonly referred to as MRTA) was amended regarding technical notice and publication issues. The new law clarifies that after MRTA paperwork preserving HOA covenants from extinguishment is recorded in the local land records, there is no requirement to publish notice in a newspaper, which was required by the law many years ago. MRTA is a very important statute for homeowners’ associations because it can, after thirty years, extinguish an HOA’s declaration of covenants, notwithstanding the duration of the declaration by its own terms. MRTA generally does not apply to condominiums.

Next week, we will wrap up our review of 2014 Legislation with the review of some miscellaneous Bills affecting community association manager licensing, non-residential condominiums, some important changes to the insurance laws, and a few other odds and ends.