Community Update

Maximizing Owner Votes: Practical Solutions for Turning Around Voter Apathy

By: Jennifer L. Biletnikoff

Are your association’s governing documents woefully outdated but the voting threshold required to approve amendments to update your documents so high that it seems you can never make the changes necessary to bring them into the modern age? Is your community in need of improvements or modernization but you are unable to get owner participation in a vote required to approve alterations or improvements?

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What the Security Statute Means for Condo Associations

By: Joseph Markovich

Section 768.0706, Florida Statutes, titled “Multifamily Residential Property Safety and Security; Presumption Against Liability,” was enacted in 2023 and provides a legal framework for the “owner or principal operator” of a multifamily residential property to obtain a presumption against liability for criminal acts committed by third parties on their premises. This presumption is available only when the owner “substantially implements” certain security measures specified in the statute. There was much confusion when the statute was first adopted, with many associations under the false impression that they were required to institute these safety and security measures. Rather, if an association, at its option, substantially complies with the statute, the statute provides a presumption against liability for crimes committed on the premises.

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Navigating New Criminal Penalties in Florida’s Association Law 

By: S. David Cooper

2024 has come and gone, and with the new statutes, the Legislature has doubled down on making it clear that no funny business is allowed in association operations – even if they’ve included some fairly obvious new “crimes”. Steal from the association? It’s a crime. Try to cover up a crime? It’s a crime. Who knew, right?

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Eastpointe Property Owners’ Assoc. v. Cohen
505 So.2d 518

By: Joseph Markovich

Understanding the interpretation of restrictive covenants is at the heart of THIS CASE. Homeowners in the Eastpointe Country Club Subdivision submitted plans to the architectural control committee to install awnings. However, their contractor began work without waiting for approval. The committee then met, denied the application, and instructed the contractor to halt the installation.

The association sued the homeowners to remove the awnings, claiming they were installed without proper approval. The homeowners responded that they did not need approval. They argued the terms “improvement” and “structure” in the declaration of covenants and restrictions were unclear. The trial court agreed, finding the terms ambiguous, and denied the association’s request for injunctive relief. However, the appellate court reversed this decision.

The appellate court stated that “improvement” was defined in the declaration as “other structures of any type or kind.” It determined that the declaration’s intent was clear: to regulate structures for the benefit of all residential properties in the subdivision. The court concluded that the purpose of the restriction was evident. Thus, “structures of any kind” was not ambiguous when viewed in the context of the entire declaration.

Since the decision in 1987, Florida statutes governing homeowners’ associations have evolved. The current statutes may impose different standards for the approval of improvements and structures, potentially affecting how terms in the governing documents are interpreted and applied. It is important to note that the current statute may not apply uniformly to all HOAs, as some may be governed by older versions of the law or specific provisions in their declarations that were grandfathered in.

THIS CASE highlights the importance of clear architectural guidelines and consistent enforcement. Associations should ensure that restrictions are unambiguous and interpreted in line with the community’s intent. They must justify denials with objective evidence and be mindful of selective enforcement claims, as inconsistent application of covenants can undermine their validity. Consulting with legal counsel can help associations and homeowners navigate these complexities and avoid costly litigation.