Community Update

“Honey, those neighbors are at it again! Call Code Enforcement!”

By: Katie Edwards-Walpole / Kathleen O. Berkey, AICP

There was a time, not so long ago, when Floridians could easily, and anonymously, report known or suspected violations of local ordinances and regulations to code enforcement. Neighbors could report their concerns about abandoned or unsafe structures, building without permits or by unlicensed contractors, unpermitted uses of property, noise violations, storing inoperable vehicles and junk, and letting the grass grow too tall. There are well-intentioned people who file legitimate complaints and trust that code enforcement will investigate the activity, and the property owner will do whatever it takes to comply. There are also people who use code enforcement as a weapon and the intention is less about nuisance abatement and code compliance and more about personal agendas and even harassment. Florida lawmakers intervened by ensuring that the accused violator will know the identity of the complainant, causing those who misuse and abuse the complaint system to think twice.

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Bulk Telecommunications Contracts

By: James Robert Caves

Before discussing specific issues with Bulk Telecommunications Agreements, it is worth noting that the various community association statutes provide for the authority of associations to enter into bulk communication agreements. Specifically, Section 718.115(1)(d), Florida Statutes, specifically authorizes a Condominium Association to enter into a bulk contract for “communication services,” which would include video, internet and telephone service. Further, the Condominium Act goes on to provide the cost of such bulk contract is a proper common expense of the association. Chapter 720 contains similar language in Section 720.309(2), Florida Statutes, and the Cooperative Act, Chapter 719, contains similar language in Section 719.107(2)(b), Florida Statutes. In addition to the statutory provisions concerning the association’s authority to enter into bulk communication agreements, the association should also review its governing documents to determine if they address the issue.

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Attorney-Client Privilege: Are Litigation-Related Communications Between An Association, Attorney, and Management Protected?

By: John Stratton

The attorney-client privilege is one of the oldest and most respected privileges in the law. The purpose underlying this fundamental privilege is to ensure that clients receive accurate and competent legal advice by encouraging full disclosure to their lawyer without fear that the information will be revealed to others. The privilege covers written and oral communications and protects both individual and institutional clients including community associations.

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Ocean Trail Unit Owners Association, Inc. v. Mead, 650 So.2d 4 (Fla. 1994)

By: Jay Roberts, Esq.

The independent covenant to timely pay assessments is at the heart of THIS CASE. Condominium unit owners brought action against condominium association, seeking declaration that association’s $500 special assessment was unauthorized. The trial court approved the assessments, and the owners appealed. At the Fourth District Court of Appeals, the court certified that the following question was of great public importance and asked the Florida Supreme Court to answer:

WHETHER A CONDOMINIUM ASSOCIATION CAN ENFORCE A SPECIAL ASSESSMENT IMPOSED TO PAY JUDGMENTS, ATTORNEY’S FEES AND COSTS INCURRED IN CONNECTION WITH A LAWSUIT BROUGHT BY UNIT OWNERS AGAINST THE ASSOCIATION IN WHICH THE ASSOCIATION’S PURCHASE OF REAL PROPERTY WAS INVALIDATED AS AN UNAUTHORIZED ACT AND SUBSEQUENTLY RESCINDED.

The facts giving rise to this action involve a purchase of property by Ocean Trail Unit Owners Association, Inc. (the “Association”), which the Fourth District held invalid as beyond the powers of the Association’s board of directors. See Ocean Trail Unit Owners Association, Inc. v. Levy, 489 So.2d 103 (Fla. 4th DCA 1986). The board thereafter filed a claim against its insurance carrier and imposed a $500 special assessment upon the unit owners to cover the costs associated with the invalid purchase. Specifically, the funds obtained through the special assessment were used in part to pay the $194,079.37 judgment for attorney fees, which was rendered against the Association in favor of the attorney representing the 150 unit owners who successfully opposed the purchase. The remaining special assessment funds were used to pay judgments rendered against the Association and in favor of unit owners who sued to recover the original $1,500 assessment, which the Association used to make the invalid purchase.

In holding that the special assessment to pay the previous litigation’s judgment, attorney’s fees, and court costs was valid and enforceable, the Florida Supreme Court stated:

As set forth in the final judgment entered by the trial court, the reason why the judgments were entered should not determine whether the assessments can be enforced. Rather, a unit owner’s duty to pay assessments is conditional solely on whether the unit owner holds title to a condominium unit and whether the assessment conforms with the declaration of condominium and bylaws of the association, which are authorized by chapter 718, Florida Statutes.

So why does THIS CASE matter? As recognized by the Florida Supreme Court, the timely payment of assessments is vital to allow a condominium association to meet its legal obligations. If an association (or its board of directors) does something improper under the law, there are remedies to be sought in court, but said remedies do not include the not paying lawfully adopted assessments.