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Florida Condo & HOA Legal Blog

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

Condominium, HOA, and Cooperative Association App Launches on iPhone and Android Devices

Posted in Education, Operations

bp_app_design_20140610_coopFT. LAUDERDALE, FL, August 28, 2014 – Volunteer boards and property managers responsible for the operation of condominiums, homeowner’s associations and coops will find their jobs a little easier thanks to a new Smartphone app from the Becker & Poliakoff Community Association Law Practice group.

The new “Pocket Condo, HOA and Coop Guide” is now available for free download on iPhone and Android devices. It can be found in the Apple store for iPhones and iPads by typing in “Condominium, HOA, Cooperative Law,” and in the Google Play store for most Android devices by typing in “Condominium, HOA, Coop Law.”

The app allows residents to search the laws governing their communities using simple key words or browsing the frequently asked questions and answers section with answers provided via video. Board members and managers in condominiums and cooperatives will appreciate the annual meeting calculator, designed to make the strict guidelines for scheduling annual meetings, as set forth by statute, easy to understand and follow.

Other features include the ability to create Board meeting minutes with detailed information about attendance, voting, and agenda items.

“We are committed to providing clients with the technology they need to make their jobs as voluntary board members as productive as possible,” said Ken Direktor, chair of the Community Association Law Practice group at Becker & Poliakoff. “Our app is designed to provide answers to commonly asked questions and help clients gain better access to the information they are seeking.”

The app is available to the public; however, clients of Becker & Poliakoff can also access proprietary information regarding accounts they have in collections through a client log-in portal.

About Becker & Poliakoff
Becker & Poliakoff is a diverse commercial law firm with more than 170 attorneys, lobbyists and other professionals in 20 domestic and international offices. The firm has eight primary areas of practice: Real Estate, Construction Law & Litigation, Community Association, Customs & International Trade, Business Litigation, Corporate & Securities, Government Law & Lobbying, and the Intellectual Property & Emerging Technologies practice. For more about the firm, visit: www.bplegal.com or www.bplegal.com/blogs.aspx to access forums on the latest ideas and opinions on legal matters hosted by Becker & Poliakoff attorneys.

Condo Unit Owner E-Mail Addresses Are Private

Posted in Official Records, Reader Q&A

Question: I am on the board of directors of my condominium association. I asked the management company to forward me a list of owner e-mail addresses so that I could update the owners as to what I have been doing as a new director. I was told that the management company is the custodian of the e-mail addresses and could not give them to me. Is this correct?  H.L. (via e-mail)

Answer: I think you were given the right answer for the wrong reason. Section 718.111(12)(c)5 of the Florida Condominium Act states that the e-mail addresses are “personal identifying information” and cannot be given out to unit owners, unless the unit owner whose e-mail address has been given out has signed a consent form.

Your desire to notify other owners of your activities, while presumably well intentioned and laudable, is not an official communication of the association. Accordingly, the association would violate the statute by giving out owner e-mail addresses, with the exception of those cases where a unit owner has signed a permission form for their e-mail address to be given out.

While the management company may be contracted as the association’s agent to hold physical possession of the official records, the official records are the property of the association. Decisions pertaining to their use and dissemination is a decision for the board of directors, not the management company.

Community Update 2014, Volume 7 & 8

Posted in Community Update, Discrimination/Fair Housing, Official Records

ecup_screen20140822magill_120x93_2Here it is – our Special Legislative Issue of Community Update. This year CALL had significant impact on the new laws and published detailed guides to the legislation.  Click HERE if you want to receive the Legislative Guide applicable to your community.  The guide includes video, insight into the laws and recommended actions for your association.

Legislation this year included guidance for associations with respect to abandoned units, requirements for former directors, officers and committee members to turn over association records, fair housing issues for homeowners’ associations and further clarification of Community Association Manager (CAM) activities plus a whole lot more.

HOA Documents Determine Whether Rules and Regulations Must Be Recorded

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

78291112Question: I live in a homeowners association where the developer recorded the initial rules. Must all amendments to the rules now be recorded given that the initial rules were recorded?  W.B. (via e-mail)

Answer: The Florida Homeowners’ Association Act (Chapter 720, Florida Statutes) provides that, after October 1, 1995, the initial governing documents must be recorded in the official records of the county in which the community is located. However, the term “governing documents” is limited to include the declaration of covenants, articles of incorporation and bylaws. There is no requirement in the Act that the initial rules be recorded in the public records. Similarly, there is no requirement to record any rule amendments, even where the initial rules are recorded.

While there is no such requirement in the Act, you will want to make certain that the association’s governing documents are silent on the issue as well. While it is uncommon, you may find a provision in the governing documents that states that rule amendments are not deemed effective until recorded.

A variation on this is where the declaration contains a broader definition of “governing documents” than is found in the Act. You will sometimes see that the term “governing documents” includes the rules. If one of the governing documents then provides that no amendment to any governing document is deemed effective until recorded, rule amendments must be recorded as well.

Another requirement you want to look for is a publication requirement. The governing documents may provide that an amendment to the rules is not effective until a specified number of days (usually 30 or so) after the amendment has been provided to all owners by hand delivery or mail. This requires that the association provide its members with notice of the rule amendment, but does not necessitate public notice.

Wi-Fi For All is Likely a Common Expense For Community Associations

Posted in Reader Q&A

462307967Question: If the Association were to put in a Wi-Fi (wireless internet) system for all owners to use would that be considered a common expense? D.P. (via e-mail)

Answer: In July of 2010, Section 718.115 of the Florida Condominium Act was amended to define the cost of communication services and internet services obtained pursuant to a bulk contract as a proper common expense of a condominium association.  “Communication services” is statutorily defined as the transmission, conveyance or routing of voice, data, audio, video or any other information or signals. I believe the 2010 amendments to the Act, together with this definition of “communications services,” make Wi-Fi service a proper common expense.

However, there is conflicting case law as to whether amendments to the Act can be retroactively applied to existing condominiums. Generally, Florida courts have held that the law as it exists on the date your condominium’s declaration is recorded controls. At the other end of the spectrum is a conflicting case holding that to apply only the law in existence as of the date your condominium was created, thus ignoring all subsequent amendments to the law, would result in a “morass of legal entanglement” where associations created in differing years would be governed by a different set of laws.

Further complicating the analysis of retroactive application of amendments to the Act is the Florida Constitution, which prohibits the legislature from enacting laws that impair vested contractual rights. The courts have held that condominium declarations are contracts.

One way to avoid this complex topic of retroactive application of amendments to the Act is to amend your declaration of condominium to incorporate future changes of the laws that govern condominiums, though there are pros and cons to this approach that should be discussed with counsel.

Setting aside whether Wi-Fi service is a proper common expense, another issue which must be considered is whether the installation of the equipment necessary to provide the Wi-Fi service will constitute a material alteration to the common elements which may require unit owner approval. The analyses of this issue will depend on scope of installation required to provide Wi-Fi service to your association and the provisions of your governing documents that address material alterations.

A Tribute to Gary A. Poliakoff, Condominium Law Pioneer

Posted in Uncategorized

poliakoff_gI would like to recognize the extraordinary life of an icon in the field of condominium and homeowners’ association law.  I am deeply saddened to announce the untimely passing of my long-time partner, co-founder of the Becker & Poliakoff law firm, and friend, Gary A. Poliakoff.  Gary passed away on August 8, 2014, at age 69, after a two year battle with cancer.

I first met Gary in 1987, when he was interviewing me to work for the firm and open an office in Southwest Florida.  He invited me to attend a “condo law seminar” he was putting on in Fort Myers.  I still remember, as vividly as if it was yesterday, the rapt attention paid by the some 300 condo dwellers in the audience, listening to his talk on the latest changes to the laws.  Most in the crowd were retirees, and they all wore the “I Speak Condo” buttons that had been passed out at the registration table.  Always one for a turn of phrase, Gary also coined the term “Prescription Pets” in one of the earliest scholarly articles on the then-emerging legal phenomena of “emotional support animals”.

Gary pioneered many practices which law firms now take for granted, including newsletters and client seminars.  Gary served as the Managing Shareholder from the firm’s inception in 1973, until 2008.  In addition to managing the daily operations and growth of one of Florida’s largest law firms, he helped create a new area of law and devoted his practice almost entirely to condominium and homeowners’ association law, commonly known as community association law.

 

Gary Poliakoff’s leadership was recognized in Florida, nationally and internationally, through hundreds of published weekly newspaper columns, a national treatise for lawyers on condominium law, and numerous published law review articles.  Gary held leadership positions in numerous organizations, including the national College of Community Association Lawyers.  Recently, the College conferred upon Gary its prestigious Gurdon Hall Buck Award, recognizing lifetime achievements in the community association legal field, an award which has been only presented to three Fellows in the history of the College.

During his career, Gary provided testimony before the United States Senate on abuses in consumer housing development, and was invited to assist post-communist countries with their transition from state housing to private ownership after the fall of the Iron Curtain.  Closer to home, Gary served on the Florida Advisory Council on Condominiums and the Florida Condominium Law Study Commission.

Gary was an Adjunct Professor of Condominium Law at the Shepard Broad Law Center of Nova Southeastern University for many years, and was recognized with the Chair for Outstanding Adjunct Professor in 2008.  Gary spearheaded the incorporation of his longtime neighborhood, Southwest Ranches, and served for ten years as its Town Attorney.  He was named as a Broward County “Pioneer”, by its Board of County Commissioners.

As one of our former partners recently noted in a tribute to Gary, he was The Man.

Gary inspired an entire generation of lawyers to embrace the field of community association law, and did so in his unique style.  From his ubiquitous bow tie to his unique brand of Southern drawl, he was a memorable presence.  He never did anything at half speed.

I know that one of Gary’s proudest accomplishments was the publication of his latest book, “New Neighborhoods: A Consumer’s Guide to Condo, Co-op, and HOA Living”, which he co-wrote with his son, author and lawyer, Ryan Poliakoff.  Gary leaves behind his wife of 47 years, Sherri Poliakoff, sons (and fellow lawyers) Ryan and Keith, their spouses, and several grandchildren.

Having myself practiced exclusively in the field of community association law for the past 27 years, I can say without reservation that no single person has had a bigger impact on Florida’s housing laws than Gary Poliakoff.  A man of very humble beginnings, Gary never forgot that law is a people business, and that the practice of law is not always about business.

I can only hope that the generation of community association lawyers he leaves behind try to follow in those footsteps.

Golf Cart Parking on Condominium Property Governed By Association Documents

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

86532264(1)Question: Our condominium documents restrict overnight parking on the condominium property to “passenger vehicles.”  The board would like to adopt a rule that allows owners to park golf carts on the condominium property as well. Is this the type of change that the board can approve or is an owner vote necessary? A.F. (via e-mail)

Answer: As with so many of these issues, the ultimate answer will depend on the exact language contained in the condominium documents. Many condominium documents, particularly the declaration of condominium, contain detailed parking restrictions outlining what types of vehicles may be parked on the condominium property.

Assuming that your declaration does not expressly prohibit the parking of golf carts on the condominium property and simply states that only “passenger vehicles” can be parked on the condominium property, it is necessary then to look at what constitutes a passenger vehicle. The term “passenger vehicle” is not a defined term under the Florida Condominium Act. The Federal Department of Transportation, National Highway Traffic Safety Administration has defined “passenger vehicle” as “a motor vehicle weighing less than 10,000 pounds and includes passenger cars, pickup trucks, vans, SUVs and other light trucks.”

As such, in the absence of any additional specific language in the declaration, the restriction limiting parking to passenger vehicles on the condominium property would seem to exclude the right to park golf carts or other vehicles not typically understood to be “passenger vehicles”, as an amendment to the declaration would likely be required.

Further, in addition to the concerns regarding the parking issue, in the event the association elects to permit the parking of golf carts on the condominium property, it would also have to address broader issues of the use of golf carts on the condominium property. Pursuant to Section 316.312, Florida Statutes, golf carts are not generally permitted to be used on public streets or roadways. However, exceptions can be made if the responsible governmental entity determines that golf carts can safely be used on the road or street in question. While Section 316.312, Florida Statutes, would not apply to private property, it gives guidance to the association that it would need to make a necessary determination as to whether golf carts could be safely used within the condominium property and the association should take appropriate steps to adopt reasonable rules and regulations for such use.

Condo or HOA breed restrictions don’t apply in fair housing accommodation requests

Posted in Disability, Discrimination/Fair Housing, Reasonable Accommodations or Modifications, Service Animals/Emotional Support Animals

magill_120x93_2There has been press about a case pending in Miami-Dade County over whether an owner is entitled to keep a dog in his unit as a reasonable accommodation for his disability. Issues concerning service and emotional support animals are highly charged and can result in significant liability for an association. As we have discussed in the past, the association is required to make a reasonable accommodation in its rules, policies or procedures for a disabled person upon request if the requested accommodation is reasonably necessary to allow the resident the full use and enjoyment of the property. Failing to make a reasonable accommodation where appropriate constitutes unlawful discrimination in violation of both state and federal Fair Housing laws.

The issue in the case mentioned above involves the type of dog requested as the reasonable accommodation. The dog “Amir” is a pit bull which is banned by a Miami-Dade County ordinance. According to Chapter 5, Section 5-17 of the Miami-Dade Code says it is illegal to own or keep American Pit Bull Terriers, American Staffordshire Terriers, Staffordshire Bull Terriers, or any other dog that substantially conforms to any of these breeds’ characteristics in the county. In fact, there is a $500 fine for keeping one of these breeds of dogs in the county and the county can file a lawsuit to remove the animal.

With this information in mind, the Association apparently believed it was not required to grant the accommodation. After all, the dog was illegal – how could keeping a dog in violation of an ordinance be considered reasonable? The Court rejected that logic at the Summary Judgment stage, at least partially based upon HUD rulings and administrative guidance offered to the public.

In 2013, HUD issued a notice about service animals and assistance animals for people with disabilities in housing. A portion of the notice says that breed, size and weight limitations cannot be applied to a service animal. The memo further says:

[The] housing provider [must] modify or provide an exception to a “no pets” rule or policy to permit a person with a disability to live with and use an assistance animal(s) in all areas of the premises where persons are normally allowed to go, unless doing so would impose an undue financial and administrative burden or would fundamentally alter the nature of the housing provider’s services. The request may also be denied if: (1) the specific assistance animal in question poses a direct threat to the health or safety of others that cannot be reduced or eliminated by another reasonable accommodation, or (2) the specific assistance animal in question would cause substantial physical damage to the property of others that cannot be reduced or eliminated by another reasonable accommodation.

Thus, you cannot rely on breed restrictions in local ordinances or the governing documents of the community when rejecting a request for a reasonable accommodation.

Recalling a New Condo Board Member is Not Easy

Posted in Board Eligibility, Reader Q&A

486487165(1)Question: A unit owner in our condominium volunteered to serve so that a full board could be seated. She was appointed to the board and then appointed vice president. Since being seated, she has done nothing but cause irritation to the others on the board. She will ask totally irrelevant, off-task questions during meetings. Answering her demands patience and time. Can this person be removed from the board? M.H. (via e-mail)

Answer: The Florida Condominium Act prescribes several scenarios where a director (and, in some instances, an officer) is disqualified from continued service on the board. The first is for failure to complete the requirements of a newly seated director. Within 90 days after being elected or appointed to the board, each newly elected or appointed director must sign a certificate indicating that he or she has read the association’s condominium documents; that he or she will work to uphold such documents to the best of his or her ability; and that he or she will faithfully discharge his or her fiduciary responsibility to the association’s members. In lieu of this written certification, the newly elected or appointed director may submit a certificate of having satisfactorily completed a state-approved educational within 1 year before or 90 days after the date of election or appointment. A director who fails to timely file the written certification or educational certificate is suspended from service on the board.

Secondly, a director or officer may also be unseated if charged with felony theft or embezzlement of the association’s funds or property. While the accused director or officer has criminal charges pending, he or she may not serve as a director or officer. However, if the charges are resolved without a finding of guilt, the director or officer shall be reinstated for the remainder of his or her term of office, if any.

Third, a director or officer will be unseated if he or she is more than 90 days delinquent in the payment of any monetary obligation due the association. In that instance, the director is deemed to have abandoned office, and the seat is to be filled as set forth in the condominium statute.

Finally, a person is not eligible for board service if they have been convicted of a felony and have not had their civil rights restored for at least 5 years.

Beyond that, the only way a director can be removed from their seat as a director is by a vote of a majority of the entire voting interests. There is usually one voting interest per unit. For example, if your condominium contains 50 units, 26 would need to vote to “recall” (remove) that person from the board. Recall is permissible with or without cause.

Although only the unit owners can typically remove a board member, it is the board who decides who the officers are, unless otherwise provided in the bylaws (which would be very rare). Therefore, the board could appoint a different vice president, but this person would still be a board member, still entitled to attend board meetings, and still entitled to ask questions.

You state that your association had to recruit this person because otherwise it could not even seat a full board. I assume from that comment that people aren’t tripping over themselves to step up to the plate and serve. This is common. I would suggest that the board try to work with its new member, perhaps explaining in a firm but friendly way (and out of the limelight of a board meeting) that her particular meeting practices, while presumably well-intentioned, are creating angst for the other board members. You know what they say about catching more flies with honey than vinegar.

If that does not work, the board can always adopt rules of procedure to manage debate at board meetings, including time and relevancy limits on board member comments. This would be a somewhat drastic step, but is necessary on some boards. If such protocols are necessary, legal counsel should be solicited for assistance in drafting the policies.

Squatters? Condo leaders have options to rid the community of squatters.

Posted in Covenant Enforcement/Violations

magill_120x93_2Strangers living in your community concern you? Is this especially true when the unit owner hasn’t paid maintenance fees for years and the home is subject to a foreclosure lawsuit? Channel 9 in Orlando recently did a story about squatters taking up residence in a condominium community. The squatters are seemingly the cause of criminal activities, cause damages to common elements and utilize the condominium’s services and utilities, all without contributing to the common expenses. What’s worse is that the units in which these individuals have taken up residence are subject to ongoing foreclosure proceedings and no one accepts the obligations of ownership.

Is the Association completely at a loss? No. There are various tactics that association leaders can take to deal with this annoying and potentially dangerous problem.

Gather Information: The first step is to learn what ever you can about the individuals that seem to be occupying a unit. If there is a vehicle parked in the spot assigned to the unit, make a note of the license plate number, so your attorney can search for registration information. Keep a diary of the comings and goings associated with the unit. If you need to testify in court, that diary will become your best friend.

Demand Rent: In Florida, both condominium and homeowners’ associations (cooperative associations as well) have the right to demand rent be paid by a tenant occupying a unit if the owner is delinquent in the payment of assessments or other monies owed. The statutes allow the association to file an action to evict a tenant that does not comply with the demand. Obviously the person “squatting” in the unit is not likely to pay the association anything, but obtaining an order forcing the eviction of the tenant may be all you need to remove this individual or individuals from the community.

Enforcement Proceedings: Check the governing documents to see what restrictions exist with regard to the occupancy of the properties. While enforcing the governing documents may ultimately provide you with relief, in many cases it is not the ideal option when a bank is foreclosing and the owner has abandoned the property. It may be impossible to serve the owner personally and the foreclosing bank does not have liability until it actually acquires title.

Security Protocol: The community featured in the Channel 9 story apparently has entry gates. If you have security or traffic control measures in place then work with your vendors to see what options to limit access are available. Changing codes or key fobs is always an option – you will require vehicle registration in connection with the distribution of new access devices. If the squatters cannot drive in to the community they will be less inclined to want to stay there.

Foreclose: This is probably the most effective alternative. The association can push its foreclosure case faster than most banks will act. If the bank foreclosure has been lingering on without activity, the association should take steps to move the case through the judicial system. There are new tools in place as a result of the 2013 legislative session that provide an association defendant in a bank foreclosure lawsuit with the power to force a hearing if the circumstances so warrant. Judges have been increasingly willing to require foreclosing lenders to prosecute their cases. On the other hand, if the association forecloses it may actually wind up acquiring title to the property and then has the exclusive control over the use and occupancy thereof.

Of course, there are many considerations to take into account when pursuing any of these techniques. Thus we recommend working closely with counsel and your other vendors to establish a plan of action that is right for your community.