Community Update

E-Bikes and Batteries

By: Mary R. Hawk

Florida has not escaped the growing epidemic of fires started by lithium-ion batteries, like those used in e-bikes and other battery-operated personal transportation devices. A recent Miami bike shop caught fire after the shop owner left an e-bike battery charging and closed the store for the day. Surveillance cameras caught the moment the battery exploded, starting the devastating fire.

Click here to read more!

What Can Be Done About Solar Panels?

By: Michael O. Dermody

If you are living in a Homeowners Association the Board or the Architectural Review Committee generally cannot prohibit the installation of solar panels (or “solar collectors”). A Florida law, F.S. 163.04, provides that any “deed restriction or declaration” or even any “similar binding agreement” may not prohibit — or have the effect of prohibiting — solar collectors (or clotheslines or any other energy devices based on renewable resources), from being installed on buildings or lots within the Association.

Click here to read more!

What to Do if You Receive a Complaint or Subpoena

By: Nicolas M. Jimenez

If your community association is served with a complaint or subpoena, you must promptly forward it to the community association’s legal counsel. As explained in this article, receipt of a complaint or subpoena triggers time sensitive legal obligations that can expose your community association to serious liability.

Click here to read more!

Tiffany Plaza Condominium Association v. Spencer
416 So.2d 823 (Fla. 2d DCA 1982)

By: Mark D. Friedman

Last month we discussed material alterations and left you with the question, “when is a material alteration considered maintenance, allowing the board to move forward without membership approval (if required by your documents)?”

In Tiffany Plaza Condominium Association, Inc. v. Spencer, 416 So.2d 823 (Fla. 2d DCA, 1982), the condominium unit owners brought action against the association challenging the collection of an assessment for construction of a rock revetment on beachfront common property. The Circuit Court entered judgment for unit owners and the association appealed. The District Court of Appeal held that the association could properly assess all unit owners for construction of rock revetment to protect beachfront common element from damage if in fact construction of revetment was found to be necessary to protect the beachfront from erosion or damage. Therefore, this was considered maintenance and not an alteration requiring membership approval.

Two years later in Cottrell v. Thornton, 449 So.2d 1291 (Fla. 2d DCA, 1984), it was held that a vote of the unit owners was not required for repairs to canal systems, roadway systems, and a swimming pool to protect the common elements. Arbitrators from the Division of Florida Condominiums, Time Shares and Mobile Homes have extended this maintenance concept to also cover alterations and changes to the property to provide security. In Southridge Homeowners Association, Inc. v. Barbieri, (Arb. Case No. 94-0382), the arbitrator held that the association could have properly determined to install security lights without a vote of the owners if there existed convincing factual predicate that the board’s action was necessary to protect the common elements or inhabitants from a known danger. In Williams v. Sky Harbour Condominium Apartments, Case No. 93-0334), the arbitrator held that unit owner approval was not required for the construction of a fence on the condominium property where the condominium building was vulnerable to intrusion by persons without any legitimate connection to the project. The arbitrator stated:

. . . where there is a convincing factual predicate that a particular task undertaken by the board is necessary to protect the common elements or inhabitants from a known danger or peril, the board should be permitted to perform its maintenance, preservation, and protection function without the encumbrance of [the Florida Statutes]. This is consistent with Tiffany Plaza, . . . and its progeny. This result should obtain whether the perceived danger is from natural forces such as ocean erosion, or dangers posed by persons, whether would-be vandals, assailants, or mere trespassers, as the damage wrought by either force may be of the same gravity and proportion, and both are beyond the immediate ability of the association to control. (emphasis supplied)

So, why does THIS CASE (and its progeny) matter? There are times when a change is necessary to protect the condominium building. If an engineer provides that a certain type of change based on newer technology or other reasons would protect the condominium property, or a change in the law requires different materials or certain types of installations, or there is a convincing factual predicate that there is a preventable danger to the property, the board in its business judgment, after consultation with legal counsel, may (and I emphasize “may”) be able to do this without the vote on alterations required in the Declaration of Condominium or Section 718.113.