Florida Condo & HOA Legal Blog : Florida Condo Lawyer & Attorney : Becker & Poliakoff Law Firm : Condominium & HOA Law Blog

Within hours of any disaster, affected communities will be besieged with offers by companies and individuals offering disaster recovery assistance.

 Please resist the urge to contract with these initial providers until you have done the following:

1. Activate Your Disaster Plan. Once residents are safe, the community must begin surveying the property and assessing the damage. A designated information facilitator should set up system of information sharing among local homeowners and a disaster coordinator should serve as liaison to emergency services providers;
2. Secure your community from acts of vandalism and looting;
3. Remove storm debris to prevent accidents from occurring on the property;
4. Secure building structures to mitigate further damage;
5. Evaluate & Determine needs for immediate reconstruction and evaluate financing options including advances from insurance company for financial advances. BEWARE OF ANY INSURANCE COMPANY OFFERING MONEY IN EXCHANGE FOR RELEASES OR SETTLEMENTS.
6. Suspend or cancel on-going contracts such as lawn or pool maintenance if allowed for in your contract;
7. Review governing documents particularly anything related to "repair after casualty" provisions in the insurance section to establish process for reconstruction;
8. Initiate reconstruction planning using the five phases of reconstruction: project planning/scheduling; construction bidding; contract negotiations; construction/repair/rehabilitation; project completion/close out.
9. Review Insurance policies to determine filing requirements for proof of loss forms.
10. Meet with licensed professionals familiar with your community which may include: a) architect/engineer to assess damage and prepare plans; b) construction manager to oversee selection of general contractor and begin competitive bidding process; c) attorney to review insurance policies, governing documents, construction contracts and any vendor agreements; and d) public adjuster who is independent of your insurance company's adjuster who can be helpful with the nuances of an ambiguous insurance policy. Most independent adjusters work for a fee based upon percentage of insurance proceeds.

Following these ten steps will help communities recover and rebuild as quickly and effectively as possible.

Best Advice: Make sure every contract is with a Florida Licensed and Insured Contractor and that it is reviewed by a Licensed Florida Attorney, prior to signing.

We thank all the webinar participants who shared personal experiences and submitted well thought-out questions to the facilitators.  If you could not attend today, please return to this site for a link to the recorded presentation.

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In anticipation of Friday's webinar, here is the first in our two-part checklists for community associations.

Becker & Poliakoff's 12-point Hurricane Preparedness Checklist includes the following tips for those who need to prepare their communities for the upcoming hurricane season: 

1. Disaster Plan – Do a risk analysis of potential consequences of a storm and develop a complete disaster plan, designating a responsible community member as Disaster Plan Coordinator and another as Information Facilitator to field queries and respond to from community members;
2. Evacuation Routes - Establish clear building or community evacuation routes and be sure that all community members are provided with copies or printouts and that routes are clearly marked as storms approach; conduct building or community evacuation drills in the weeks leading up to hurricane season;
3. Emergency Generators & Supplies – Be sure emergency generators are in working order and have adequate fuel supplies, stock a building or community emergency supplies storeroom with flashlights, batteries, water and other necessities for residents and employees in the aftermath of a tropical storm;
4. Backup Computer Files – Be sure that computer files crucial to running the building and association are backed up to CDs or Portable Storage Devices and keep a list of office computer hardware and software vendors and repairmen in case computers crash or systems fail; 
5. Secure the Premises – Make preparations for routine lockdown of the building or other facilities as a storm approaches, so the building is secure during the storm and safe from vandalism or looting if a hurricane strikes; 
6. List of Owners & Employees – Have on hand a current, hard-copy reference list complete with the names all property owners, emergency contact numbers and details of second residence addresses, as well as a list of all association employees, with full contact details; 
7. Photograph or Video Premises – Keep a visual record through video or photographs of premises, facilities and buildings to facilitate damage assessment and speed damage claims in a storm aftermath; 
8. Building and Facilities Plans – Make sure a complete set of building or community plans are readily available for consultation by first-responders, utilities workers and insurance adjusters following a storm; 
9. Insurance Policies & Agent Details – Be sure all insurance policies are current and coverage is adequate for community property, facilities and common areas and compliant with State Law; full contact details for insurance companies and agents should be readily available in the event of a storm; 
10. Bank Account Details & Signatories – Keep handy a list of all bank account numbers, branch locations and authorized association signatories, and make contingency plans for back-up signatories in case evacuation or relocation becomes necessary; 
11. Mitigation of Damages – In the immediate aftermath of a storm, take the necessary steps to mitigate damages -- this includes "Drying- In," which is the placement of tarps on openings in the roof and plywood over blown out doors and windows, and " Drying –Out," which is the removal of wet carpet and drywall to prevent the growth of mold; and, 
12.  Debris Removal – Have a plan for speedy removal of debris by maintenance staff, outside contractors or civic public works employees, should a hurricane topple trees and leave debris in its wake. 

Learn more valuable tips during the free webinar Anatomy of a Disaster Claim, presented by Board Certified Construction Law attorneys and special guest engineer Rick Slider.  Return to this site for a checklist of items for communities to consider immediately after a storm.

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Lawsuits Against Employers for Violations of the Fair Labor Standards Act & Other Employment Claims are on the Rise.

Some community associations have one employee, while others may have a hundred or more employees.  Think about it - maybe your community employs a CAM, grounds maintenance people, a concierge, office assistants, front desk personnel, activity coordinators, beach attendants, valet, building engineers, cleaning staff - the list of people necessary to operate many community associations goes on and on.  These individuals may have access to sensitive or proprietary information, such as unit owner or resident medical or health related records.  When the economy is tight (like now) employment related claims and lawsuits rise dramatically - I read one article that said the number of lawsuits filed against employers for violations of the Fair Labor Standards Act (FLSA) rose by 40% each year for the past several years in a row! 

• How will you protect your association from wage and hour claims?
• Do you have time cards or require employees to "clock" in or out?
• Do your employees often work during non-business hours?  How do you account for that time?
• What is your association's policy on overtime or "comp" time?
• Do your employees have access to the association's office, unit owner files, keys to units or the Internet?
• Do any of your employees ever enter any of the units when the owner isn't present?
• Do your employees leave the property as part of their job (trips to home depot, bank runs, etc.)?
• What is your policy on allowing employees to perform work for individual unit owners?
• Do any of your employees have use of a unit as part of their compensation package?  If so, what policies are in place in that regard?  What if someone is hurt in that unit?  What if there are damages to the unit?  What happens if the association wants to terminate that employee?
• Does your community classify the maintenance person, landscaper, office assistant, bookkeeper or manager as an independent contractor?  You may be surprised to learn that such classification may not protect you from employment related claims.

If you are a member of a Board of Directors of a community association and have answered "yes" or don't know the answer to any of these questions, an employee manual should be a priority.  Unfortunately, many community associations neglect to spend the time or devote the funds to this task.   A well-drafted employee manual can minimize your exposure to both employment related and third-party liability claims - but make sure to have a Labor and Employment Attorney from your state draft and/or review the manual.  Since employment laws vary from state to state and change quite frequently, using a 'form' from a neighboring community or from the Internet may do more harm then good.

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Pinellas County Assists Homeowner With Battle Against Homeowners Association Over Operation of Assisted Living Facility.

HOA restrictions and covenants typically contain provisions limiting use of the property to a "single-family" residence.  These use restrictions likewise typically prohibit any "business" or "commercial" use of the home.  However, as discussed in other posts on this blog, enforcement of deed restrictions or covenants may implicate other laws, particularly the Fair Housing laws.  Associations are prohibited by Federal, State and many local laws from discriminating against  protected classes.  Unlawful discrimination includes, among other things, the refusal to make a reasonable accommodation in policies or practices and interference with the lawful use and and enjoyment of the residence.

In the past, Florida courts have interpreted Section 419.001(2), (addressing community residential houses), and Section 393.062, (addressing developmental disabilities), of the Florida Statutes as support for the premise that a group home is the functional equivalent of a single family residential unit and does not justify enforcement of deed restrictions to the contrary.  In at least one of the cases the court found that the association must show the use (three unrelated disabled adults) constitutes a nuisance and the mere fact that the residents of the home were not related was not a violation of the single-family use restriction.  Another case found that enforcement of the prohibition against commercial or business use was discriminatory as applied against a particular small group home.

The county has joined efforts on behalf of an owner, based upon a legal memorandum prepared by the County Attorney's Office, after a finding of reasonable cause was issued by the Pinellas County Office of Human Rights.  TBO.com reported the story.

What does this mean for Homeowners Associations?

• First - community leaders and managers must be aware that fair housing laws may impact enforcement or other board decisions.
• Second - it is important to create fair housing policies and procedures to evaluate fair housing claims, requests for accommodations or modifications and the transfer approval process.
• Third - do not treat fair housing investigations lightly.  Work with counsel and the investigating office - the investigators attempt to conciliate these matters before issuing any findings.
• Fourth - review your insurance policies.  Many policies do provide coverage for defense and other costs.

Finally, there are many educational resources available to community leaders and managers.  Take advantage of those opportunities. 

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Today is Earth Day - so I'm re-posting some information about energy efficiency, waste and water reduction improvements or techniques that have saved building owners money as well as information about the $1.7 million in savings Fannie Mae enjoyed by employing "green" practices.

Condominium Associations can reduce their energy consumption costs by installing renewable energy devices and are in a position to possibly create a new revenue stream. Condominium Associations are uniquely positioned to take advantage of these rebates, cost saving techniques and possible new revenue streams as a result of Section 718.113(8), Florida Statues, which provides:

"Notwithstanding the provisions of this section or the governing documents of a condominium or a multicondominium association, the board of administration may, without any requirement for approval of the unit owners, install upon or within the common elements or association property solar collectors, clotheslines, or other energy-efficient devices based on renewable resources for the benefit of the unit owners."

HOAs have many options available to reduce annual budgets.  There are plenty of examples of the “business case” for simple retrofits and changes in practices.

FBI Field Office, Chicago, Illinois:

Total improvements and modifications lowered operating costs by more than $400,000.00 annually. How many of us would reject a 400% return on an investment?

USAA Realty Company: 
Spending $140,000 resulted in $71,000 annual savings.

Adobe Towers / Multiple Hi-Rise Buildings:
Major improvements cost initially over $1 million, but rebates reduced those costs by approximately $300,000 (net cost $700,000) and the annual savings of $900,000 increased the value of the building by over $10 million!

Can your community afford not to reduce its future expenses? 

 Fannie Mae's data center saves an average of $340,000 per year in operating expenses as a result of the use of energy efficient systems and sustainable landscaping practices.

Can your community benefit from some changes?  Some changes are easy and very affordable.  Please let us know if your community is interested in an evaluation of the property for this purpose and please share what your community has done to reduce its expenses.

We will post more information concerning Florida-friendly landscaping and water conservation methods to continue examples of how community associations can save money by embracing new ideas. 

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55 & Older Housing  - what does that mean?

The Federal Fair Housing Act prohibits discrimination because of race, color, religion, sex, handicap, familial status or national origin.  Many States have their own Fair Housing Act - in Florida Chapter 760 of the Florida Statutes is dedicated to discrimination issues that expand the protection to age and marital status. The term 'familial status' generally refers to occupancy by children (person under 18) with parent, guardian or designee of the parent.   So why or how are there 55 & older communities?  Well, every rule has exceptions, right?  The Fair Housing Act is no different. 

The Housing for Older Persons Act (HOPA) is an exception that allows communities to operate as “55 or over” housing. To qualify for this exemption, the following criteria must be met: 

1. At least 80% of the units must be occupied by at least one resident over the age of 55; 
2. The community must publish and adhere to policies and procedures demonstrating an intent by the housing provider (the association) to provide housing for persons 55 years of age or older; and
3. The housing provider must engage in appropriate age verification procedures that includes a community census from time to time.

Ok - at least one person 55 or older must reside in at least 80% of the occupied units.  What do you do with the other 20%?

On April 1, 1999 the United States Department of House and Urban Development (“HUD “) published Federal Regulations implementing the Housing For Older Persons Act of 1995 (“HOPA”).  Basically, HUD does not care how a community handles the 20% “cushion" as reflected below:

There continues to be confusion concerning what is often referred to as the 80/20 split. HOPA states that the minimum standard to obtain housing for persons who are 55 years of age or older status is that “at least 80%” of the occupied units be occupied by persons 55 years or older. There is no requirement that the remaining 20% of the occupied units be occupied by persons under the age of 55, nor is there a requirement that those units be used only for persons where at least one member of the household is 55 years of age or older. Communities may decline to permit any persons under the age of 55, may require that 100% of the units have at least one occupant who is 55 years of age or older, may permit up to 20% of the occupied units to be occupied by persons who are younger than 55 years of age, or set whatever requirements they wish, as long as “at least 80%” of the occupied units are occupied by one person 55 years of age or older, and so long as such requirements are not inconsistent with the overall intent to be housing for older persons.
 

Does that mean a community that desires to sustain is Housing for Older Persons status should let everyone in up to the 20%?  No, not really.  The "cushion" is designed to allow the housing provider (association) to permit exceptions when appropriate.  If a couple resides in a property and one is 55 and the other not, do you, as a community leader or manager, want to be put in a position that requires you to say "you're in violation" if the resident over 55 passes away?  What if the couple gets divorced?  What if someone resides with their adult child?  In our view, the 'cushion' is exactly that - something that protects you or softens the requirements to avoid unpleasant results.

Does your community qualify as Housing for Older Persons?  Community leaders that aren't sure should consult with counsel, as penalties for discrimination (even unintentional discrimination) can be harsh.

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What policies does your community have in place regarding the use, storage and operation of golf carts?  Can owners ride the golf carts to the local convenience store, coffee shop or hair dresser?  Adoption of a new proposal will allow local governments to create their own regulations governing the use of golf carts, which pleases many Condo & HOA owners.  In Bradenton, Florida seniors listed golf cart usage as a priority, as the cost is insignificant and many of them have given up driving automobiles.  The Bradenton Herald recently included a story describing what changes would result from SB 2448. 

Ambiguities regarding the use of golf carts are not new.  In 2002, the Florida Attorney General released an Advisory Legal Opinion in reply to an inquiry regarding whether a municipality may impose a minimum age requirement for the operation of a golf cart which was more restrictive than those found in the Florida Statutes or whether a City may require the operator of a golf cart to have a valid Florida Driver’s License, the answer to both being 'no'.  In 2004, Charlie Crist, as Florida's Attorney General, issued an Advisory Legal Opinion (AGO 2004-60) implying that a community association could not adopt rules prohibiting persons under the age of 16 from using golf carts on public streets in the country club community.   He also indicated that the Association could not force golf cart users to use child safety devices, which resulted in changes to the Florida Statutes.

Under proposed SB 2448, the local government would be obligated to:

1. issue a finding that golf carts, bicycles and pedestrians can share the sidewalk safely;
2. consult with the Department of Transportation;
3. restrict speed to no more than 15 mph and only permit use on sidewalks at least 8 feet wide;
4. retain (or supplement) golf cart equipment requirements; and
5. post appropriate signage.

Community associations need to address golf cart, scooter and other transportation device use and storage issues carefully - even with respect to private property.  Consult with counsel to determine what types of regulations are appropriate and enforceable.  It is also a good idea to check whether the insurance policies contain exclusions or specific requirements for claims involving golf carts.

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We are proud to be nominated as a Best Blog in the Sun-Sentinel's Best of Blog Awards.  The voting process is already underway - click HERE to vote for Florida Condo & HOA Law Blog in the Business and Technology Category!

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The Office of Program Policy Analysis & Government Accountability (OPPAGA) Issues Report Outlining Various Options for Regulation of Homeowners Associations (HOA).

 OPPAGA evaluates performance and accountability of various governmental activities.  The Draft Report finds that the legislature showed significant interest in regulating Florida's Mandatory Membership Homeowners Associations over the past several years.  In 2007 a Senate interim study recommended alternative dispute resolution mechanisms to facilitate resolution of homeowner issues.  The 2008 Select Committee on Condominium and Homeowners Association Governance recommended increasing enforcement, mandatory education for board members and allowing local law enforcement to access association records during an investigation.  In 2009, the Community Association Living Study Council recommended immediate legislative action to curtail the powers of homeowners associations.

The Draft Report describes several options available to the Legislature, to wit:

The Ombudsman's Office reports that most of the complaints about HOAs concern properties in South Florida.  The complaints are largely similar to Condo/Coop complaints - the majority of which include lack of access to association records, election disputes, selective enforcement of covenants and the inability to participate at meetings.

Is it time for Florida to provide more oversight to HOAs?  Would Florida homeowners benefit from the services of the Ombudsman or the DBPR?  Would the costs justify or outweigh the benefits?

There are a number of bills filed for consideration during the 2010 legislative session - some of which include additional regulations for HOAs.  Please refer to other posts on this site for information about pending bills or visit CALL to participate in the legislative process.

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The Maison Grande and other bankruptcy filings by community associations have spurred interest in reorganization of debt.  Is bankruptcy an option for your cash strapped community?  What issues do you need to consider?   Bankruptcy Attorney Aleida Martinez Molina answers the following questions for community associations struggling with bills and bad debt.

CAN CONDOMINIUM OR HOMEOWNERS ASSOCIATIONS FILE FOR BANKRUPTCY?  Yes. Under certain circumstances, condominium associations have successfully reorganized under Chapter 11 of title 11 of the United States Code, 11 U.S.C. sections 101, et seq. (“Chapter 11” and “the Code,” respectively). This phenomenon is not unique to Florida – there have been successful condominium association reorganizations throughout the United States.

WHAT IS A BANKRUPTCY IN THE CONTEXT OF A COMMUNITY ASSOCIATION? The first point to understand is that Chapter 11 is a reorganization process – not liquidation under Chapter 7 of the Code. As such, it can provide associations the protections of the automatic stay and other relevant Code provisions while allowing them to formulate a plan of reorganization to extricate themselves from the particular financial situation.

UNDER WHAT CIRCUMSTANCES DOES IT MAKE SENSE TO REORGANIZE? The Code has unique provisions which in essence give associations a more level playing field to negotiate with creditors. A number of associations find themselves with daunting contracts or leases which they might renegotiate or simply reject if able to do so. A reorganization could, under the appropriate circumstances, accomplish this goal. Another example is filing for bankruptcy protection in order to prevent a judgment creditor from seizing or garnishing bank accounts. An association with a judgment or upcoming trial could turn to a reorganization as a way to automatically stay the lawsuit/collection of the judgment and permit a realistic settlement. Finally, associations finding themselves threatened with the shut-off of service by utilities or other providers can, under certain circumstances, resort to reorganizations to temporarily prevent this drastic action.

WHAT IS REQUIRED FOR AN ASSOCIATION TO REORGANIZE? Proper authority from the Board and appropriate attorney fees and costs. In addition, an association should file a reorganization with a clear understanding of its exit strategy (i.e., a plan of reorganization).

COSTS ASSOCIATED WITH A REORGANIZATION: Reorganizations are not inexpensive and simple matters – filing fees to the bankruptcy court alone exceed $1,000. The debtors also need to pay quarterly fees to the United States Trustee while the reorganization is pending. Any debtor (association or otherwise) needs to contact competent counsel in time to prepare budgets and plan accordingly. It can and is done – even in dire situations where utility services are about to be interrupted. Counsel can advise how to properly prepare the necessary documents, authority and budget to reorganize under the Code.

WHAT HAPPENS TO ASSOCIATION RESIDENTS WHEN A COMMUNITY ASSOCIATION REORGANIZES? Ideally, nothing directly. If the association files with appropriate board authority and a reasonable game plan, the association should be able to function and provide the necessary services to the association property and residents.

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Associations struggling with bad debt pushing the envelope trying to make up for deficits.

Earlier this week news reports showed homeowners living without water service to their homes.  The association shut down the water service because the homeowner didn't pay maintenance fees for several months. The homeowners' attorney claims that the Board acted illegally.  The Board, on the other hand, wants to put as much pressure on the owners to pay maintenance fees. 

In an earlier post I described actions prohibited by Florida's consumer protection laws.  I received quite a few comments indicating that associations regularly publish debtor lists to embarrass or harass the delinquent owners and associations have shut down cable or other television programming, restricted access to recreational facilities, deactivated entry devices for security gates to the property (forcing owners to use the guest gate) and stopped other services.  But can an association in Florida shut down services when an owner doesn't pay?

Condominium Associations cannot prohibit owners' access or use of the common elements.  Section 718.106, Florida Statutes guarantees every owner's right to use the common elements, which would include the recreational facilities (if part of the condominium), regardless whether they have fulfilled their responsibility to pay maintenance fees.  However, in response to cries from community leaders throughout the State, legislation was proposed during the 2009 session to permit condominium boards to suspend certain rights of use as a result of non-payment.  We are likely to see proposals in the 2010 session addressing this issue as well.  Community leaders and managers can stay up-to-date with respect to legislative activities by participating in the Community Association Leadership Lobby (CALL), which is a Statewide not-for-profit advocacy effort that not only monitors, but participates in drafting legislation designed to improve association operations.

Homeowners' Associations do have support to suspend use of "common areas and facilities" if the governing documents are written in a certain way.  Section 720.305, Florida Statutes contains the following provisions:

If the governing documents so provide, an association may suspend, for a reasonable period of time, the rights of a member or a member's tenants, guests, or invitees, or both, to use common areas and facilities and may levy reasonable fines, not to exceed $100 per violation, against any member or any tenant, guest, or invitee. A fine may be levied on the basis of each day of a continuing violation, with a single notice and opportunity for hearing, except that no such fine shall exceed $1,000 in the aggregate unless otherwise provided in the governing documents. A fine shall not become a lien against a parcel. In any action to recover a fine, the prevailing party is entitled to collect its reasonable attorney's fees and costs from the nonprevailing party as determined by the court.

A fine or suspension may not be imposed without notice of at least 14 days to the person sought to be fined or suspended and an opportunity for a hearing before a committee of at least three members appointed by the board who are not officers, directors, or employees of the association, or the spouse, parent, child, brother, or sister of an officer, director, or employee. If the committee, by majority vote, does not approve a proposed fine or suspension, it may not be imposed.

The requirements of this subsection do not apply to the imposition of suspensions or fines upon any member because of the failure of the member to pay assessments or other charges when due if such action is authorized by the governing documents.

The term 'common areas' is defined in the Homeowners' Association Act, but the term 'common facilities' is not described.  The governing documents may define the term 'common area' more specifically and may even include (generally by an amendment) a definition of 'common facilities', but is the cable service either?  What about water service?  Are the pipes carrying the water or the wires carrying the television programming owned and/or maintained by the Association?  What if the television programming is through a satellite system and you don't even have any wires in the common areas?

These questions have yet to be answered by an appellate court.  An adverse ruling with respect to either of these types of actions exposes community associations (and their leaders under certain circumstances) to liability, so it is very important to consult with counsel before trying to shut off any type of service.

It is also important to note that the statutes specifically prohibits restricting access to the individual home.  It says:

Suspension of common-area-use rights shall not impair the right of an owner or tenant of a parcel to have vehicular and pedestrian ingress to and egress from the parcel, including, but not limited to, the right to park.
 

Community leaders can and should be proactive when it comes to collecting assessments and maintenance fees, but they need to be concerned with liability issues.  Therefore, I encourage you to consult with counsel to determine what, if any, changes to the governing documents will improve your position, as no association can operate without its primary (and generally only) source of revenue.

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On March 30, 2009 the Division issued a Final Order in Humphrey v. Carriage Park CAI a case involving among other things a request for records where the owner sought “all correspondence, e-mails to or from the Department of Business and Professional Regulation.”

In its ruling the Division stated that there was no violation for failing to produce e-mails which never became the official records of the Association.  The Division explained:

• The property of an individual director does not become the property of the Association because of his office on the Board.
• Even if directors communicate among themselves by e-mail strings or chains, about the operation of the Association, the status of the electronic communication on their personal computer would not change.
• An e-mail to an individual or all directors as a group, addressed to their personal computers, is not written communication to the Association because there is no obligation for a director to turn on a personal computer with any regularity, or to open and read e-mails before deleting them.

The Division in a footnote to its opinion stated a different decision could be reached “if the Association owns a computer on which management conducts business including e-mails…; or if e-mails are printed up and passed around for discussion at a board meeting.”

Given the ever changing trends in technology and the manner in which Associations conduct business, a Board needs to be wary that the status of e-mails as official records despite the Humphrey decision is still in flux. In other words, tomorrow, these very same e-mails which today are not official records could be. Also while a link has never been made equating IM or Twitter transcripts to e-mails this too could change as these forms of e-communication become more and more popular amongst Board members.

For more information on the role of e-communications and Association look at my May 12, 2009 post or the recent article by the Sun-Sentinel titled Boards a-Twitter about laws.

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Florida Law Governs Rules or Covenants Prohibiting Solar Collectors or other Renewable Resource Energy Devices.

 Many community leaders may not be aware of Section 163.04, Florida Statutes which prohibits enforcement of restrictions precluding homeowners from obtaining energy from renewable resources.

Florida's legislators made sure this law applied to Condominium and Homeowners' Associations with amendments shortly after the Taylor v. The Ridge at the Bluffs HOA case.

Owners of condominium units are specifically permitted to install solar collectors or energy devices, so long as the installation is wholly within the boundaries of the unit and does not involve patio or balcony railings.  The Statute says, in relevant part:

A deed restriction, covenant, declaration, or similar binding agreement may not prohibit or have the effect of prohibiting solar collectors, clotheslines, or other energy devices based on renewable resources from being installed on buildings erected on the lots or parcels covered by the deed restriction, covenant, declaration, or binding agreement. A property owner may not be denied permission to install solar collectors or other energy devices by any entity granted the power or right in any deed restriction, covenant, declaration, or similar binding agreement to approve, forbid, control, or direct alteration of property with respect to residential dwellings and within the boundaries of a condominium unit. Such entity may determine the specific location where solar collectors may be installed on the roof within an orientation to the south or within 45° east or west of due south if such determination does not impair the effective operation of the solar collectors.
 

While many states have adopted similar legislation to encourage the use of renewable energy sources, it seems that community association leaders have yet to embrace improvements requested by homeowners within the communities.  In fact, there is an effort to create federal regulations securing home and/or unit owners' access to renewable energy improvements and the public is critical when HOA or Condo Boards reject homeowner requests based solely on aesthetic grounds.

On the other hand, the Philadelphia Business Journal reports that communities with energy efficiencies built in- including solar panels, have retained value, even in this market.  Lower utility bills is an attractive feature that causes the property to stand out from the competition.

The boundaries of a unit vary from condominium to condominium.  Boundaries are described differently in similar types of properties - so a ruling in one community does not mean that another association cannot prohibit owner modification requests.  Community leaders are encouraged to consult with counsel to determine the scope of the Association's rulemaking authority before a dispute arises.

Additionally, condominium associations may take advantage of energy saving devices to reduce expenses.  The Condominium Act was amended to permit the installation of solar collectors and other energy efficient improvements.  Progressive leaders of community associations will discover long-term savings and increase property values at the same time.

 For more information and examples of great projects see 'Green' Practices to Ease Future Financial & Budgeting Concerns.

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Many communities were marketed as 'adult communities' and the governing documents contain provisions prohibiting permanent occupancy by children.  Are they legal or enforceable?  Joseph Adams provides a brief explanation.

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