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Florida Condo & HOA Legal Blog

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

Recalling Board Members is a Tricky Proposition in Florida Condominiums

Posted in Reader Q&A

ThinkstockPhotos-492147635Question: All sorts of rumors have been flying around our condominium community about the actions (or inactions) of the current board and, more specifically, the president of the association. A group of owners started a recall against the president and asked me to sign a form to show my support for the recall. I signed the form. I later learned that a board meeting was called to vote on the recall petition. I attended the board meeting. The president spoke at the meeting and explained his side of the story. I believed what he said and I wanted to change my vote. The owners who were pushing for the recall told me I couldn’t change my vote. The recall was approved by the other directors and the president was removed from the board. Was this legal?  M.D. (via e-mail)

Answer: From what you have stated, probably yes. Recalls can be tricky. The required procedure to recall a director from a condominium association is specifically outlined in Florida Statutes and the Florida Administrative Code and are available on-line. Recalls can be pursued through a vote of the members at a membership meeting or through a written agreement. A majority of all the unit owners must vote to approve a recall for it to be effective against a director or multiple directors.

From your question, it appears that a recall by written agreement was used. The Florida Administrative Code states the following: “…Any rescission or revocation of a unit owner’s written recall ballot or agreement must be done in writing and must be delivered to the board prior to the board being served the written recall agreements.”  In your case, since you did not revoke your vote prior to the time it was served upon the board, you were unable to change your vote.

Grilling on the Balcony: What is Permissible in Florida Condominiums?

Posted in Covenant Enforcement/Violations, Reader Q&A, Rules & Regulations

ThinkstockPhotos-179051524Question: My unit has a screened balcony (some people call it a “lanai”). I understand that I cannot use a gas grill out there, but I enjoy using my electric grill when the weather is nice. The association recently published an article in our monthly newsletter that stated that we are no longer allowed to use or store any type of grill on our balconies, including electric grills. Is there a law that imposes this restriction or is the association just being overly cautious? G.F. (via e-mail)

Answer: Your association is simply following the law. The State of Florida mandates that local governments adopt all National Fire Protection Association (NFPA) codes and requirements. Thus, counties and municipalities are required to enforce the current Florida Fire Prevention Code (FFPC). The 2007 FFPC distinguished between the types of grills that could and could not be used in a residential setting in other than one- and two- family dwellings. While gas-fired and charcoal grills could not be used on any balcony or under any overhanging portion or within 10 feet of any structure, listed electric ranges, grills, or similar electrical apparatus were explicitly permitted.

The FFPC was amended, effective December 31, 2011, to remove this distinction. The current regulation provides that no hibachi, grill, or other similar devices used for cooking, heating, or any other purposes can be used or kindled on any balcony, under any overhanging portion, or within ten feet of any structure (other than one- and two- family dwellings). Thus, as of the end of 2011, electric grills could no longer be used in these areas. The 2010 FFPC, however, did not address storage of these items.

Storage was addressed in the latest version of the FFPC. The Fifth Edition, effective on December 31, 2014, now not only prohibits the use of all types of grills on any balcony, under any overhanging portion, or within ten feet of any structure (other than one- and two- family dwellings), but also provides that no hibachi, grill, or other similar devices used for cooking shall be stored on a balcony. The only exception to this rule is that listed equipment permanently installed in accordance with its listing, applicable codes, and manufacturer’s instructions may be permitted under the rule.

Can a Florida HOA Ban Political Yard Signs?

Posted in Covenant Enforcement/Violations, Reader Q&A, Rules & Regulations

ThinkstockPhotos-116862227Question: With the presidential elections on the horizon, our homeowners’ association board has been discussing political signs in yards. There are two members of the board that want to ban all political signs, while the other members of the board think that such a ban would be a violation of the owner’s First Amendment rights. Can the association prohibit or even regulate the posting of political signs? B.H. (via e-mail)

Answer: It is common for association governing documents to contain provisions regulating signs. As a general rule, homeowners associations have the right to restrict signage. Therefore, the specific provisions of your association’s governing documents are the first place to look.

Political signs, however, raise particular issues regarding freedom of speech. However, the freedom of speech that is contemplated by the First Amendment typically applies only in government settings. The question of whether constitutional rights apply in community associations at all is widely debated. At this point in time, neither Florida’s Supreme Court nor any federal appellate court have ruled on whether a private residential community can ban or restrict political signs.

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Condominium Board Cannot be Forced to Disclose Email Addresses of Owners

Posted in Email, Official Records, Reader Q&A

Question:  I asked our ThinkstockPhotos-475338050association for a list of all unit owner e-mail addresses and was refused. We have an “owner directory” that has some e-mail addresses. If the board has new e-mail addresses, shouldn’t they have to give them to me? E.S. (via e-mail)

Answer:  As strange as it may sound, no. The Florida Condominium Act distinguishes between information in “official records” that must be made available for inspection and copying, and “personal identifying information”, which cannot be made available. The only exception is that  e-mail addresses that are provided by a unit owner when the owner receives official association notices by e-mail must be provided upon request.

However, if the only permission given by the owner was to allow the e-mail address to be printed in an association directory, that is not sufficient to remove the classification as protected, personal identifying information. If you do not already have one, you can request a copy of the directory (since that is an official record) and get the e-mail addresses which were already made public.

There is a similar “glitch” in the law regarding telephone numbers. The law was recently amended to authorize an association to print a directory containing the name, unit address and all telephone numbers of each unit owner, provided that the association provides unit owners with the right to opt out of having his or her telephone numbers published. If a unit owner does not opt out, the association is free to publish the telephone numbers, but those telephone numbers are still protected personal identifying information. As with e-mails, the association could not independently release owner telephone numbers, but if a directory has been published, any owner has the right to see it.

No Regulation of HOAs by DBPR this Legislative Session in Florida

Posted in Covenant Enforcement/Violations, Developer Obligations, Official Records

Yesterday, the Senate Regulated Industries Committee failed to approve SB 1122, Relating to Homeowners’ Associations. The bill would have required all homeowners’ associations to pay $2.00 per parcel for the purpose of authorizing the Department of Business and Professional Regulation to regulate the HOA. The bill would have also required mandatory binding arbitration of certain HOA disputes, including covenant enforcement, assessments, and official records; increased the penalties for willful failure to withhold official records; and changed the triggers related to when a developer must turn over control of the association to the parcel owners. The primary concern raised by the Senators was the $2.00 per door “tax” on homeowners. The unfavorable vote by the Senate Regulated Industries Committee means that the issue is effectively “dead” for this session.

Does A Florida Condominium Board Have To Answer Owner Letters?

Posted in Fiduciary Duty of Board of Directors, Liability, Reader Q&A

ThinkstockPhotos-468338557Question: I live in a condominium association and serve on the board. Our property manager recently received a letter from an owner with a list of over twenty questions concerning the operations of the association. The letter was sent via certified mail. Are we required to answer these numerous questions?  It will take us hours to answers these questions. The owner who sent the letter is constantly complaining about the board, always threatening to go to his attorney.  B.D. (via e-mail)

Answer: The Florida Condominium Act contains a requirement which requires a condominium association to “substantively” respond to “inquiries” from owners that are sent by certified mail within thirty days of the association’s receipt. The statute also contains a procedure for referral of the matter to legal counsel in which case the deadline is extended to sixty days.

It is very important for these deadlines to be met. In general, in disputes between an association and owner, the wining party is entitled to recover attorneys’ fees from the loser. However, failure of an association to respond by the deadline will result in the Association not being able to seek the recovery of attorney fees in litigation pertaining to the inquiry even if it is the prevailing party.

The law also allows a condominium association, through its board of directors, to adopt reasonable rules and regulations regarding the frequency and manner of responding to unit owner inquiries. As an example, the board can adopt a rule providing that the association is only obligated to respond to one written inquiry per unit in any given thirty day time period.

In my view, this is a law that started from good intentions (associations should not ignore bona fide concerns of owners), but is largely used by owners who are not seeking to simply ask a question, but set up a legal action. Therefore, I always recommend that the association contact legal counsel when a “certified inquiry” is received. Further, although many associations don’t appreciate the need until it is too late, it is also very desirable to have a board policy regulating certified inquiries as part of the association’s policies and procedures.

There is no similar “certified inquiry” requirement contained in the Florida Homeowners’ Association Act.  There is, however, a similar “certified inquiry” provision contained in the Florida Cooperative Act.

Can Florida Condo & HOA Owners Organize Political Rallies On Community Property?

Posted in Common Areas, Reader Q&A, Rules & Regulations

ThinkstockPhotos-87753347Question: I live in a condominium association with politically active residents. One of our unit owners has asked to host a political event at the association’s clubhouse. I fear this event could attract a large public audience and be a burden to our residents. Can our association disapprove the event? J.S. (via e-mail)

Answer: The law provides that all common elements, common areas, and recreational facilities serving any condominium shall be available to unit owners in the condominium and their invited guests for the use intended. The law also permits the association to adopt “reasonable rules and regulations pertaining to the use” of common properties.

Many communities have guidelines addressing such uses, including permissible purposes for private use, regulations pertaining to the number of permitted non-resident guests, and the details of such uses like parking, security, insurance requirements, available rental times, capacity limits, and the like.

Political events, however, are afforded a limited degree of priority under the Florida Condominium Act. Specifically, Section 718.123(1) of the statute states that “no entity or entities shall unreasonably restrict any unit owner’s right to peaceably assemble or right to invite public officers or candidates for public office to appear and speak in common elements, common areas, and recreational facilities.”

Therefore, while an association could probably decline to permit the use of your clubhouse for wedding receptions or even religious services, the right to invite public candidates to speak is conferred by statute. At the least, the board would need to permit the candidate to attend and address residents. I do believe the board could reasonably limit attendance by the outside public, and to the extent the association normally requires certain procedures to reserve the facility (prior reservation, clean-up arrangements, etc.) could impose those conditions in connection with a political event.

Can Senior Housing Communities Allow Underage Residents?

Posted in Housing for Older Persons (55 and Over), Reader Q&A

ThinkstockPhotos-469540755Question: I live in a 55 and over community and the board of directors for our association is considering a policy that would allow under-aged occupants to live in a community under certain circumstances. Would such a policy threaten the community status as a 55 and over community?  A.E. (via e-mail)

Answer: Under the right (or wrong) circumstances, yes. There are a number of requirements that a community must satisfy in order to be considered “housing for older persons,” often referred to as a “55 and over” community. The main point of being a 55 and over community is that families with children can be excluded, which is otherwise illegal under state and federal anti-discrimination laws.

In addition to having a provision in your governing documents establishing age requirements for occupants and registering with the State, the community must also perform a periodic census to verify that at least eighty percent of the homes are occupied by at least one individual over the age of 55. However, the law does not address how the community must regulate the remaining twenty percent, leaving it to the community’s governing documents.

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Can your Board of Directors Ban Guns in Your Community?

Posted in Rules & Regulations, Safety and security

ThinkstockPhotos-460151141

This post originally appeared in The Community Association Law Blog.

PART I: Florida lawmakers are considering several gun proposals in the 2016 Session. One bill would allow people with concealed-weapons licenses to carry guns on college and university campuses while another would allow individuals with those concealed-weapons licenses to openly and visibly carry those firearms.

Naturally, guns and all the emotions they evoke from both sides continue to generate media attention and heated personal and public debate. Since a large percentage of the American populace lives in mandatory association communities with those numbers growing, the question of whether or not a board of directors has the right or the responsibility to restrict association members and their guests from carrying and/or discharging firearms inside the community needs to be asked.

Constitutional issues typically are raised in a private residential community when a Board attempts to enforce a restriction and the violator claims that his or her constitutional rights are being trampled. What is often lost in translation is the fact that community associations are private entities and not state actors who would be bound by the U.S. Constitution to protect individual rights from infringement by the federal government or by a state or local government thanks to the Fourteenth Amendment which extends constitutional principles to that states. However, courts have found that the behavior of private actors can be challenged with constitutional arguments in three different circumstances state action through judicial enforcement, the public function test, and the state involvement test.

Let me be clear at this point in my blog post that it is virtually impossible to completely analyze even a small portion of the constitutional issues which pertain to gun ownership in the space allotted in a blog format. If constitutional claims have been raised as a defense in your community to the enforcement of any type of restriction, it is important for you to speak to an association attorney experienced in this area.

Hopefully, this blog post will spark a conversation between your board, manager and association attorney when this issue eventually comes up in your community.

CAN THE BOARD OF DIRECTORS PROHIBIT GUNS INSIDE YOUR UNIT?
The short answer is no, the Board (and even the members via an amendment to the governing documents) likely cannot prohibit owners from keeping guns inside their units/homes as the U.S. Supreme Court has held the right to keep a firearm in one’s home to protect that home and its inhabitants is a fundamental right.

In 2008, the United States Supreme Court, in the landmark case of District of Columbia v. Heller, 554 U.S. 570, addressed an individual’s Second Amendment rights. Heller involved two separate gun laws in Washington DC. One of those laws was an outright ban on handguns in Washington DC; the other was a law which required guns to be unloaded and disabled while stored in the home. Heller was a police officer in Washington DC who challenged these laws. This Supreme Court opinion is probably the most important case interpreting the Second Amendment.

Scalia wrote the opinion and he used his typical originalist interpretation to look at why the Second Amendment guaranteed the right to bear arms. Most folks are familiar enough with the Second Amendment to recognize that it guarantees the “right to bear arms”. However, the first part of the sentence is instructive: “a well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.” In the Heller opinion, Scalia looks at that first part of the sentence and he finds that the original reason for the right to bear arms is self-defense Long story short, Scalia argues that a disabled and unloaded gun will not be very useful if a burglar breaks into your home and you quickly need your gun for self-defense. He also found the ban on handguns to have no rational basis as they are often the weapon of choice for people who carry a gun in self-defense. Both gun laws were ruled unconstitutional by the opinion Scalia authored.

Scalia further said in dicta that the right to protect one’s home in self-defense is especially important and has special protection in the Constitution. Having a gun in your home for self-defense is seen as a fundamental right. Thus, a law (or in the community association arena-a covenant or rule) that prevented people from having guns in their own home would come under even stricter scrutiny. Given the clear and unambiguous direction laid out by the Supreme Court on the issue of maintaining a gun inside one;s home, it is hard to fathom how a Board’s ban on keeping loaded guns in one;s unit or home (even one resulting from an amendment to the governing documents approved by the members) would pass constitutional muster.

Stay tuned for Part II of this blog post- Can the Board of Directors restrict or prohibit firearms on the common areas.

2016 Legal Update & Special Insider Look At Insurance For Community Associations

Posted in Events, Insurance, Legislation

2016 Legal Update
Overview of the Major Legislation Adopted in 2015 Impacting Florida’s Community Associations

Provider #0000811, Course #9627311, 2 LU credit hours
Presented by David Rogel, Esq. and Rosa de la Camara, Esq.

In addition to sunshine and tropical storms, we are guaranteed each year in Florida to see changes to the laws governing the state’s more than 60,000+ community associations. These changes come with penalties for failing to implement them so it is crucial that you understand how the decisions that take place in Tallahassee impact your community.

Becker & Poliakoff’s David Rogel and Rosa de la Camara will offer the 2016 Legal Update where you will learn how to incorporate the important changes resulting from the 2015 Legislative Session which will require operational changes in condominiums, cooperatives, homeowner associations and the community association management profession.

Topics Include:

  • 2015 Legislation and issues to be addressed by the legislature in 2016
  • Recent court and arbitration cases of interest to community associations

Special Insider Look At Insurance Issues For Community Associations
Overview of the Insurance Issues Impacting Community Associations Throughout Florida
Presented by David Rogel, Esq. and Rosa de la Camara, Esq. along with Juan Cordoba, Vice President of Wells Fargo Insurance Commercial Lines

We will be offering expert insight on insurance issues specifically for community association and best practices for your community.

Topics Include:

  • Types of Insurance
  • Buying Insurance
  • Making Claims
  • Setting Insurance Deductible Annual Requirements
  • Insurance From Others
  • Evidence of Insurance

Open Forum Q & A
Saturday, February 6, 2016
9:00 AM – 1:00 PM
Hawk’s Cay Resort
61 Hawk’s Cay Blvd.
Duck Key, FL 33050

For more information, please contact Mikel Alvarez at
305.262.4433 or malvarez@bplegal.com.

Breakfast Will Be Served
There is no charge to attend, but seating is limited. Participants must be registered in advance to reserve a seat.