This month, we work through a wide array of issues, from trees to legal documentation, and even speeding tickets. Please feel free to join us at the 2022 CA Day & Trade Show hosted by the Central Florida Chapter of Community Associations Institute on February 11 in Orlando!
Can you remove a tree without any prior authorization from local governments? Florida statute attempts to shed some light on the issue, though it leaves a clear answer covered in shade. See “Tree Maintenance and the Potential Impact of Section 163.045, Florida Statutes” for more.
Can something as small as a security camera be a material alteration that requires association approval? Would there be any liability associated with the camera? Arbitrators have weighed in recently. “More on the Installation of Security Cameras” (Part 2) addresses their decisions and some relevant case law.
What happens when various association documents make for unruly neighbors? “THIS CASE: Heron at Destin West Beach & Bay Resort Condominium Association, Inc v. Osprey at Destin West Beach and Bay Resort Condominium Association, Inc.” addresses which document governs when there is a conflict.
In 1988, Congress added “familial status” – defined as including those family groups with children under 18 – to the list of protected groups under the Fair Housing Act. Since that time, condominium and homeowner associations have been discovering that their various rules regulating or prohibiting the use of the association’s facilities by those under 18 years of age may be prohibited by federal law. Rules once considered common and reasonable in the early 1980s, that is, rules which employ a specific age to regulate minor residents’ use of the pool, gym, or other areas, could, after the passage of this federal law, result in legal action against the association on behalf of owners with children under 18.
In general, a community association is responsible for operating and maintaining the common areas of the community (in the case of homeowners’ associations), and the common elements (in the case of condominium associations). If there are trees located on these common areas/elements, the association’s maintenance duties will include trimming and even the removal of trees that may be dead or dying. Before performing any significant trimming or removal of trees, however, an association must determine whether any prior governmental approval is required.
Heron at Destin West Beach & Bay Resort Condominium Association, Inc v. Osprey at Destin West Beach and Bay Resort Condominium Association, Inc.
94 So.3d 623 (Fla. 1st DCA 2012)
Hierarchy amongst documents which govern a community association is at the heart of THIS CASE. The primary dispute which ignited this litigation concerned how the president would be chosen for the master association board of directors. The master association board of directors is comprised of the five presidents of five sub-condominium associations. One faction on the master association board of directors contended that the president of the master association board of directors should be chosen by a simple vote of the directors (i.e., each director only has one vote). The other faction contended that each director should be given a weighted vote equal to the amount of condominium units contained in their respective condominium. The trial court ruled in favor of the one director / one vote faction, and this appeal followed.
On appeal, the First District Court of Appeals analyzed the language of the master declaration of restrictive covenants and easements (“Master Declaration”), the articles of incorporation for the master association, and the bylaws for the master association. The Court recognized that when trying to interpret all three documents together leads to a reasonable argument that there is a conflict between the Master Declaration and the articles of incorporation and bylaws. However, the Court states:
Regardless, there exists a certain hierarchy in the governing documents. For both types of associations, the declaration acts as the association’s constitution and strictly governs the relationships among the members and the association. A member, whether a unit owner or another association, may sue the association for violating duties established in the relevant declaration.
The articles of incorporation are governing documents which are generally filed with the Secretary of State as part of the process to form a corporation. Bylaws are rules adopted by an organization for its internal governance; however, these rules are subordinate to the Articles of Incorporation or the organization’s constitution.
Based on the foregoing, if a conflict arises between these three governing documents, the Master Declaration should control over the Articles of Incorporation or the Bylaws.
The Court determined that the Master Declaration clearly evidenced an intent that all votes regarding the master association should be decided in accordance with a weighed voting scheme wherein the president of the sub-condominium association casts votes equal to the amount of condominium units contained within their respective condominium. This includes the vote on the master board of directors to determine the president of the master association. Accordingly, the Court reversed the trial court’s holding.
So why does THIS CASE matter? Courts always strive to interpret governing documents in harmony with each other. However, that is not always possible. If there is ever a conflict between a declaration (whether that be a declaration of covenants or a declaration of condominium) and the articles of incorporation or bylaws of an association, the declaration will control the conflict. If there is ever a conflict between the articles of incorporation and the bylaws of an association, the articles of incorporation will control the conflict. As mentioned, courts try to avoid conflicts if possible. Accordingly, it is important that you have the association’s attorney opine regarding any perceived potential conflict in your community’s governing documents.
Question of the Month
Q: My community has set up various speed monitoring devices along the most travelled road. The board is now fining residents for speeding violations. Is this legal? What is the process for imposing a fine and can these fines result in a lien?
CALLING ALL BOARD MEMBERS AND COMMUNITY MANAGERS
As leaders in Community Association Law, we not only helped write the law – we also teach it.
Did you know Becker provides over 200 educational classes per year throughout the State of Florida on a variety of topics ranging from board member certification to compliance, and everything in between? Our most popular classes are now available online!
To view our entire class roster, visit:
As a service to the community and industry, we are pleased to offer some of our most popular classes online for you to participate in from the comfort of your own home.
- Turnover From Developer Control
- Insights Into Your Role as a Board Member: Fiduciary Duty & Business Judgement Rule
- 2022 Legal Update
- Anatomy of a Water Leak
- Budgeting & Reserves
- Collection and Foreclosure Strategies for Community Associations
- Construction Road Map for Community Associations
- Top 10 Manager Do’s and Don’ts
- Construction Contracts and the Lien Law
- Construction Projects Gone Wild
- Dealing with Difficult People
- Disaster Preparedness and Recovery
- HOA/Condo Board Member Certification
- How to Properly Run an Election
- Take a Bite out of Fraudulent Assistance Animal Requests
- Understanding Our Bylaws
Financial Management and Planning is Key to a Healthy Condominium Association
Anyone who has ever served on a board of directors of a condominium association or has ever managed a condominium association knows that there are a number of laws that regulate the keeping and reviewing of its official records.
We have all heard the old adage, “Don’t judge a book by its cover.” The same is true when it comes to condominium associations—you cannot judge the “health” of a condominium association by its polished marble floors or its breathtaking gulf shore views. The true lifeline of a condominium association comes from successful financial planning, management, and budgeting that allows the association to provide a comfortable, positive, and safe living environment for all owners to properly maintain the property and to protect the value of the property over time.
Drawing a Line in the Sand by Reviving Previously Unenforced Restrictions
FCAP Managers Report
The previous boards failed to enforce the parking restrictions in the community, and now parking has become a nightmare. The new board would like to remedy the solution, but can the board begin to enforce a restriction that has not been enforced in the past?
CAI Central Florida Hosts 2022 CA Day & Trade Show
Becker is proud to sponsor the 2022 CA Day & Trade Show hosted by the Community Associations Institute. Join Becker’s Orlando team February 11 in Orlando for an engaging day “Celebrating Communities in Our Own Backyard.” Free educational classes will be available for attendees.
Can They Do That?
“Our association is considering hiring one of the board members to perform maintenance services in our community – Can they do that?” Becker Shareholder Elizabeth A. Lanham-Patrie discusses in a brand new episode!
Becker’s “Can They Do That” video series tackles some of the unique problems that homeowners and renters face today. We answer your questions, no matter how far-fetched they may seem. From service animals to nudists in your community, we get to the bottom of it and let you know – “Can They Do That?”
Becker Steps Up to the Mic with Podcast,
‘Take It To The Board with Donna DiMaggio Berger’
Becker is thrilled to announce the launch of its community association-focused podcast, Take It To The Board with Donna DiMaggio Berger. For decades, our firm has served the legal needs of this industry through in-person conferences and roundtables, online educational webinars, in-depth blog posts, and easy-to-understand legislative updates; we are delighted to continue the conversation on yet another platform. Join us today!
- Royal Service with James Donnelly
- Fiscal Finesse with Nicole Johnson-Pendergrass
- Nuisance or Necessary: Solving the “Pet” Problem with JoAnn Burnett
- The Technology Tango with Brett Fielo
- Community Immunity with David Ramsey
- Considering the Cost of Counsel with Denise Lash
- Rules & Referencing with Howard Perl
- The Mental Health Challenge with Chris Ayub
- Reserve Funds & Studies with Robert Nordland
- Association Advocacy with Commissioner Mary Molina-Macfie
- The Job of the Journal with Michael Hamline
- HR Hacks with Jamie Dokovna – Part 1
- HR Hacks with Jamie Dokovna – Part 2
- The Art of Community Design with Patty Mowry
- Heart of Service with Stephanie Maher
- The Making of a Manager with Otto Freund
- Happy Holidays, Healthy Communities with Andrew Fortin
DID YOU KNOW?
Legislative Changes Open the Door to New Options for Resolving ‘Disputes’ in Condominium and Cooperative Associations
Earlier this year, the Florida legislature passed changes to Florida’s Condominium Act (Chapter 718) the Cooperative Act (Chapter 719), and the Homeowners Association Act (Chapter 720), Florida Statute. These amendments went into effect on July 1, 2021 and opened the door to allow condominium and cooperative associations a new option for addressing disputes between unit owners and the association through pre-suit mediation.