Header graphic for print

Florida Condo & HOA Legal Blog

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

Upcoming Events — CALL Alert for April 18, 2014

Posted in CALL Alert, Education, Events, Legislation

The House and Senate are not meeting this week because of the Passover and Easter holidays, so there is not much to report on the pending legislation.  Therefore, I wanted to take the opportunity let you know about some upcoming events that will be of interest.

CALL Town Hall Meeting and Legislative Wrap-Up:  We are excited to be holding a Town Hall Meeting and Legislative Wrap-up this year, featuring Legislators and other speakers who will be discussing the 2014 Legislative Session.  The event will be held in mid-June in South Florida.  Stay tuned for further information regarding date and location, and special guests.

2014 Communities of Excellence Conference and Awards GalaSince its founding by the Florida Community Association Journal, the Becker & Poliakoff law firm, and Pen Group Communications, the Communities of Excellence Awards has involved more than 400,000 residents in communities throughout Florida. As it enters its sixth year, the Florida Communities of Excellence Awards has grown to become a 12-month program, with this year’s capstone event, the Conference & Awards Gala, on May 2, 2014 at the Rosen Plaza Hotel in Orlando, Florida.  For a complete list of the award categories and community finalists, please click here.

Topical Currents Radio Show Featuring CALL Team Member Donna Berger:  The radio show “Topical Currents” will feature attorney and CALL Team Member Donna Berger on June 17, 2014 from 1:00-2:00 pm.  Topical Currents is a radio show on WLRN 91.3 FM, which serves a weekly audience of more than 500,000 from Palm Beach to Key West. It is ranked number one in the state of Florida among NPR stations.  You can also listen to the show from your computer, tablet, or smartphone by visiting their website and clicking on the “Listen Live” button on the top left of the screen.

Board Member Certification and Continuing Education (CEUs): Becker & Poliakoff offers a wide-range of dates and locations for Board member certification classes and continuing education classes for community association managers.  Click here for a full list of upcoming classes and events.    

Dish Owners in HOAs Still Have To Pay For Cable If Part Of Common Assessments

Posted in Assessment Collection, Owner Payment Responsibility, Reader Q&A

126893241Question: My homeowners’ association is considering entering into a bulk purchase contract for cable television. I get my television through a satellite dish and am very satisfied with my service. If the association purchases the bulk cable television, can they make me get rid of my dish?  If not, can I be excused from paying for television service I do not want or need? A.L. (via e-mail)

Answer: Under federal law, you are permitted to have a satellite dish on your property as long as it is one meter (39.6 inches) or less in diameter, and is installed on an area of the property which you own or over which you have exclusive dominion and control. The association can establish “location preferences” for satellite dishes, so long as these preferences do not impair your ability to receive an acceptable signal. Therefore, the association cannot force you to start accepting your television signal from the cable provider instead of your satellite dish.

However, you probably will not be able to get out of paying your share of the cable charges, even if you do not use it. Section 720.309(2) of the Florida Homeowners’ Association Act, states that the cost of “communication services”, which includes cable television, are a proper common expense if authorized by the governing documents or by the board of directors, although charges are to be allocated equally (on a per-parcel basis) even if the association’s governing documents provide for weighted payment of assessments.

Condo Board Meetings Cannot Be Adjourned Past 90 Day Timeframe

Posted in Meetings, Operations, Reader Q&A

iStock_000005990447XSmallQuestion: Is there a limit on the amount of time the association can hold open voting for amendments to our condominium documents or can the board hold the voting open indefinitely until it receives enough “yes” votes to approve the changes? D.N. (via e-mail)

Answer: Pursuant to the Florida Condominium Act, a proxy is valid for the meeting for which it is given, and any lawful adjournment thereof. However, a proxy is only valid for ninety days from the initial date of the meeting. Accordingly, if there are adjourned meetings in order to garner additional support, those adjournments can only occur for a ninety-day period from the date of the first meeting. Errors in adjournments are one of the most common problems I see with amendments. I recommend that the following procedures be followed:

  • If a quorum is established, but there are not enough votes to consider the amendment, all business unrelated to the amendment can still be conducted. The chairman should explain to the members that the association has not obtained sufficient voter input to properly address the amendment, and request that the meeting be adjourned to permit additional members to submit proxies.
  • A motion to adjourn should be made to adjourn the meeting to a specific date, time, and place. This motion should be seconded, and discussion limited to the motion to adjourn.
  • The motion should be voted upon. The Board designee holding proxies given to the association may vote those proxies in favor of the adjournment if “general powers” have been given to the association.
  • For those people who came to the meeting in person, they should be given a limited proxy and asked to fill it out, in case they cannot come back to the meeting when it is re-started. If the owner can come back, they can always “revoke” their proxy, so it is best to ask all of the owners who attend the initial meeting in person to leave proxies.
  • When the meeting is reconvened, a motion should be made to approve the amendments as presented, duly seconded, and voted upon. Additional proxies received after the first meeting can be added to the count, as well as the votes of any owners who attend the re-convened meeting in person.

Director Can Serve on More Than One Condo Association Board

Posted in Board Eligibility, Reader Q&A

Question: My condominium association is electing new directors. One of the candidates running for the board is currently the president of another association in our development. Can this individual serve on both boards at the same time?  M.P. (via e-mail)

Answer: Yes. The Florida Condominium Act specifically provides that any unit owner or “other eligible person” may run for the board. The Condominium Act further provides that there are only three instances in which a unit owner is not eligible to run for the board: (1) when he or she has been suspended or removed from office by the Division of Condominiums, Timeshares and Mobile Homes; (2) when he or she is delinquent in the payment of any monetary obligation due to the association, and (3) when he or she has been convicted of any felony in Florida, or has been convicted of any offense in another jurisdiction which would be considered a felony if committed in Florida, unless such felon’s civil rights have been restored for at least five years as of the date such person seeks election to the board.

Board Can ‘Cool Down’ An Owner Suggestion For An Improvement To Association Property By Saying No

Posted in Reader Q&A

153697798Question: We have central air conditioning in our entire clubhouse, including the workout room. However, one resident insists that a separate wall air conditioner should be added to the workout room. Does the board have to do this, or is seventy-five percent ownership approval required for a “material alteration”? F.S. (via e-mail)
 
Answer: If the board is not interested in adding the window air conditioning unit, it should just say no. I do not think a window air conditioner would be considered a “material alteration”, because it is not an improvement to the property but rather it is “personal property”, which the board is generally empowered to acquire and dispose of.

Consumption of Alcohol at Events Can Pose Risks for Associations

Posted in Insurance, Liability, Operations, Reader Q&A

100088877(1)Question: Our association permits the consumption of alcoholic beverages at certain events. What is our liability? T.S. (via e-mail)
 
Answer: That is a good question, there is no clear guidance in either statutory law or appellate case law.

Generally speaking, under what is often called Florida’s Dram Shop Act (Section 768.125 of the Florida Statutes) a person who sells or furnishes alcoholic beverages to a person of lawful drinking age does not thereby become liable for injury or damage caused by or resulting from the intoxication of such person. However, a person who willfully and unlawfully sells or furnishes alcoholic beverage to a person who is not of lawful drinking age, or who knowingly serves alcoholic beverages to a person who is “habitually addicted” to alcohol, may become liable for injury or damage caused by, or resulting from, the intoxication of such minor or person.

While an association probably can limit concerns over service to minors, I am not sure how one determines whether someone is “habitually addicted” to alcohol.

From a risk management perspective, the most important thing for the association to do is to make sure that there is insurance coverage available for any loss that might arise out of alcohol being furnished at, or consumed upon, the community’s premises. It is my understanding that the association can obtain “host liquor liability” riders for its operations generally, and sometimes on an event-by-event basis. This should be discussed with the association’s insurance agent.

Bylaws Can Authorize Pay For Condo’s Officers

Posted in Reader Q&A

Question: The officers of our condominium association (president, vice president, secretary, and treasurer) are all paid, and have asked for a pay raise this year. Is this legal?  I thought this was a volunteer job under Florida law?  M.I. (via e-mail)

Answer: According to Section 718.112(2)(a)1 of the Florida Condominium Act, officers serve without compensation unless otherwise provided in the bylaws. Therefore, the bylaws can permit officers to be paid.

In my experience, very few associations pay their officers, but some do. There are some issues that could arise when officers are paid, including whether a higher duty (more liability) exists than is the case for volunteers. There is also a question of whether the same volunteer immunity laws would apply. However, if authorized by the bylaws, it is not illegal for association officers to be paid.

Legislative Session Update Week 6 — CALL Alert for April 11, 2014

Posted in CALL Alert, Legislation, Service Animals/Emotional Support Animals

header_call-640x13611

As week 6 comes to an end, everyone is looking forward to a “mini-break” in the action next week.  The House and Senate have decided not to meet next week because of the Passover and Easter holidays.  However, we all know that it’s not really a break and there will be much strategizing and behind the scenes action going on as we gear up for the last two weeks of session.

The 2014 CALL Tracking List on the CALL website has been updated as 4/11/14:  www.callbp.com. There you will find an updated summary of the bills of interest and also their status.

The following is an update on the bills that continued to make progress this week:

Service Animals and Emotional Support Animals:  As mentioned in the CALL Alert of April 8, 2014, CALL reached an agreement with the House and Senate sponsors and the disability rights advocacy groups to remove all references to emotional support animals from the bill.  Those amendments were approved in the House State Affairs committee meeting on April 11, 2014.  The bill now heads to the House floor.  Click here to see the most current version of the bill, which now is limited to “service animals” only.  Nothwithstanding, there are federal laws that address other types of assistance animals (including emotional support animals).  Therefore, if your association receives a request for a service animal, emotional support animal or other assistance animal, you should always involve your association attorney so that they can properly advise you on the law and the particular request.

The Senate companion bill, SB 1146 by Sen. Altman, was scheduled to be heard in its second committee of reference, Senate Community Affairs, on Tuesday, April 8, but it was not considered.  As a result, the liklihood of the bill passing is diminishing, as it would still have to be approved in two committees before it can be heard by the full Senate.

HOA Meetings:  SB 1450, by Sen. Simpson, requires that all HOA meetings be held at locations which are accessible to physically handicapped persons, but only if a request is made by a physically handicapped person who is entitled to attend the meeting.  The bill was approved by the Senate by a vote of 40-0, but does not have a House companion.  We will continue to monitor it.

Community Association Bill:  As mentioned in the CALL Alert of April 8, 2014, the sponsors of SB 798 and HB 807, have agreed to conform their bills to amend Chapter 718 to state that the association is not considered a “previous owner” when it takes title to a delinquent parcel through foreclosure or by deed in lieu of foreclosure.  The intent is to allow the association to demand past due assessments from the owner that takes title to the property after the association.  This language was added last year in Chapter 720 (dealing with homeowners’ associations), but it is not currently in Chapter 718 (dealing with condominiums).  The provision in SB 798 that would have allowed the association to recover interest, late charges, and reasonable costs and attorney fees incurred by the association incident to the collection process from purchasers (limited to 10% of the winning bid if at a foreclosure sale) will be removed from SB 798 as a compromise with the sponsors and stakeholders.  We expect that SB 798 will be approved in its last committee of reference, Appropriations, when the Legislature returns from the Passover and Easter holidays (Week 8).

CAMs/UPL:  SB 1466 by Sen. Lee and HB 7037 by Rep. Spano add a number of activities to the definition of “community association management,” including, but not limited to, collecting amounts due the association prior to the filing of a civil action, completing forms related to the management of a community association that have been created by statute or by a state agency, drafting letters of intended action, calculating and preparing certificates of assessments, responding to requests for an estoppel letter, negotiating monetary or performance terms of a contract subject to approval by an association, and drafting pre-arbitration demands.

As mentioned in the CALL Alert of April 5, 2014, HB 7037 has been approved in all committees of reference and now heads to the House floor.  SB 1466 was approved in Senate Judiciary and now must only be approved by Appropriations before heading to the Senate floor.  The Senate bill includes a liability provision that would make a CAM liable for monetary damages if the actions of the CAM constitutes a criminal violation; constitutes a transaction from which the CAM derived a personal benefit; or constitutes recklessness, or an act or omission that was in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.  This liability language will likely not be the final version, as the stakeholders are continuing to negotiate this issue.

Vacation Rentals:  HB 307 by Rep. Hutson was approved in its last committee of reference, Regulatory Affairs.  HB 307 prohibits a local government from prohibiting vacation rentals or regulating the duration of vacation rentals, but would presumably allow other types of regulation.  There was an attempt to amend HB 307 to prohibit a local government from restricting a use on a vacation rental which is not restricted in non-vacation rental property. However, the amendment failed.  The companion bill, SB 356, has already passed the Senate and is “in message” to the House.  SB 356 is different and allows local governments to limit the duration of vacation rentals to a minimum of 7 days.  The differences will have to be worked out on the floor of the House and Senate.

Non-Residential Condominiums:  HB 425 by Rep. Rodriguez (J.) and SB 440 by Sen. Altman, Relating to Condominiums, exempt “non-residential” condominiums from certain provisions of Chapter 718.  SB 440 was approved 40-0 by the Senate and will be sent to the House for approval.

Enjoy the holidays and feel free to email me (ygoin@bplegal.com) if you have any questions about the legislation.

Attempting To Change Assessments In A Condominium Can Be An Almost Impossible Task

Posted in Assessment Collection, Owner Payment Responsibility, Reader Q&A

480286093(1)Question: I recently purchased a unit in a condominium community. Half of the units are two-bedroom units and half are three-bedroom units. However, assessments are shared equally. I do not think I should have to subsidize insurance, repairs, and maintenance for the larger units, as I own a two-bedroom unit. I would like to bring this up for a change. What should I do? T.S. (via e-mail)
 
Answer: You need to start by reviewing your declaration of condominium. It should set forth the process by which proposed amendments can be initiated. Typically, amendments can be initiated by a petition from some percentage of the unit owners, or by the board of directors.

Under Florida law, assessments can only be charged equally (all units pay the same) or based on square footage (often called weighted). The developer of your condominium apparently chose equal assessments.

Pursuant to Section 718.110(4) of the Florida Condominium Act, the manner of sharing assessments cannot be changed, unless otherwise provided in the declaration of condominium as originally recorded, except by approval of one hundred percent of all unit owners and lien-holders (including mortgage holders). Therefore, unless your original declaration provides for otherwise (and I do not think I have ever seen such a clause), you will need one hundred percent approval of all owners to change from equal assessments to weighted assessments. The chances of that happening seem pretty slim.

Community Update 2014, Volume 3

Posted in Community Update

Congratulations to all the condominium, HOA and cooperative communities honored by being selected a finalist for the Florida Communities of Excellence Awards. The 2014 Conference and Awards Gala will be held at the Rosen Plaza in Orlando, Florida on May 2, 2014. There is still ample time to register for this important and educational event featuring Tom Hudson as the Master of Ceremonies and Mark David Jones as the Keynote Speaker. Go to www.communitiesofexcellence.net to register and for more information on details of the event..

In this Issue:

Just the thought of a code violation or dealing with code enforcement officials can be upsetting to community leaders. Our feature article Don’t Shoot the Messenger, offers tips for handling code enforcement issues.

Just who is eligible to serve on your condominium’s Board of Directors? That question is answered in the article Board Eligibility Issues.

Don’t be fooled by those who claim the Division of Florida Condominiums, Time Shares and Mobile Homes doesn’t have any power when it comes to investigations of legal violations. Please Pay Attention to Investigative Demands and learn what happened to one association that didn’t.

Are you familiar with the Tourist Development Tax? Our concluding article discusses the association’s role.