Becker is deeply saddened by the devastation caused by Hurricane Ian. Ian has taken lives, destroyed homes and property, and ravaged entire infrastructure systems of towns and cities. As we turn our eyes to recovery, Becker is hosting a webinar on Wednesday, November 9 at 12:00 PM EST to review important information on how to implement a disaster recovery plan for your community. As always, we are here to help.
In this Issue
Florida law opened the door to allow condominium and cooperative associations a new option for addressing disputes between unit owners and the association through presuit mediation. Jennifer Biletnikoff breaks down these recent changes in,“Options for Dispute Resolution in Condominium Associations.”
Associations should not become involved in neighbor versus neighbor disputes, except to encourage that the dispute be resolved amicably. Robyn Severs discusses this and more in, “An Association’s Obligation Regarding Neighbor Versus Neighbor Disputes.”
When owners or their guests, tenants or invitees violate the governing documents, associations have certain remedies available to it under Florida law. Learn about these enforcement actions and certain restrictions in, “Enforcing the Rules and Regulations in Your Community: All Actions Have Consequences. How Prepared Are You to Enforce Them?” by Jennifer Biletnikoff.
Due process and the proper scope of judicial injunctions lie at the heart of, “THIS CASE: Kittel-Glass v. Oceans Four Condominium Association, Inc.” from Jay Roberts. Find out why this case matters.
On July 1, 2021, changes to Florida law opened the door to allow condominium and cooperative associations a new option for addressing disputes between unit owners and the association through presuit mediation. Previously, certain disputes between condominium associations and unit owners (or cooperatives and unit owners) were required to be submitted to arbitration through the Division of Florida Condominiums, Timeshares, and Mobile Homes of the Department of Business and Professional Regulation (the “Division”) before filing a lawsuit.
By: Robyn M. Severs
Community Associations have an obligation to enforce their governing documents. However, that obligation does not extend to policing, mediating, or resolving disputes between owners, without a corresponding covenant violation. Associations have an obligation to all owners of the community to do what is in the best interest of all owners, not just the select one or two.
Whether you live in a condominium, cooperative, or homeowners’ association, owners and their guests, tenants and invitees are bound by the association’s governing documents, which may include the declaration, articles of incorporation, and bylaws, and any rules and regulations. Prospective owners and tenants must understand what is required of them under these documents as they are bound to abide by the same. Enforcing the rules and restrictions is an important role of the Board of Directors. The association must enforce all rules and restrictions consistently and uniformly. If the Board fails to do so, it opens the door to a selective enforcement defense which could result in an association not being able to enforce certain restrictions.
Kittel-Glass v. Oceans Four Condominium Association, Inc.
648 So.2d 827 (Fla. 5th DCA 1995)
Due process and the proper scope of judicial injunctions lie at the heart of THIS CASE. Beate Kittel–Glass (“Unit Owner”) owed a condominium unit at Ocean Four Condominium. The Unit Owner had many disputes with the Ocean Four Condominium Association, Inc. (“Association”). Eventually the Unit Owner filed a lawsuit against the Association for trespass. The Association filed a two-count counterclaim against the Unit Owner seeking injunctive relief related to multiple breaches of the declaration of condominium and seeking monetary damages related to fines which the Association had levied against the Unit Owner.
The evidence at trial established that the Unit Owner, between 1986 and 1994, committed a multiplicity of disorderly acts on the condominium premises that included: indecent exposure, public intoxication, reckless display of a firearm, and assault and battery. Twenty-two police reports were presented detailing Unit Owner’s misconduct. Evidence was also introduced that an Association subcommittee had found that the Unit Owner violated 79 condominium rules and had assessed her a total fine of $3,950, calculated at $50 per violation. The Unit Owner presented no witnesses at trial.
Final judgment was entered on the counterclaim for the Association in the sum of $3,950, plus prejudgment interest. The Unit Owner, her agents and guests were permanently enjoined from occupying or entering upon any part of the condominium premises based in part on the court’s finding that Unit Owner’s misbehavior continued during the existence of the temporary injunction. The Unit Owner appealed the final judgment.
On appeal, the Court found that the Association failed to properly follow due process procedures with respect to 65 of 79 fines levied on the Unit Owner. Accordingly, the Court held that the monetary judgment should be reduced to $700 (plus appropriate interest). The Court also held that the trial court exceeded its injunctive enforcement authority by permanently disallowing the Unit Owner, her agents, and her guests from being on the condominium property. The Court stated that the trial court could have, for example, fined the Unit Owner or incarcerated the Unit Owner for violating the temporary injunction, but that the permanent injunction against her being able to be on the condominium property amounted to an unconstitutional taking of property.
So why does THIS CASE matter? If an association is inclined to use internal enforcement mechanisms such as fining, it is vital that all proper due process actions are taken. These process could differ from community to community, so it is vital to discuss the proper procedures with your community association attorney. Lastly, it is very unlikely that a court will be able to permanently disposses an owner from his or her property due to “bad acts” by the owner. Rather, the judiciary has other tools such as fining and incarceration to force compliance with its injunctive orders.
Question of the Month
Q: I understand that the board of directors of my condominium association has the authority to levy special assessments. However, is there any requirement on when special assessments must be due? Does the association have to allow at least 30 days or more before the special assessment can be due?
Opportunity To Extend Certain Permits Due to Hurricane Ian
Section 252.363(1)(a), Florida Statutes (2022), provides that certain qualifying permits and authorizations are eligible for an extension once a state of emergency is issued by the Governor for the length of time the state of emergency is in effect, plus an additional six months. A written request for such an extension must be submitted to the authorizing governmental agency within 90 days after the state of emergency has expired (§252.363(1)(b), Florida Statutes).
If you hold permits or other authorizations in Florida and would like assistance in reviewing and evaluating possible opportunities for extension to preserve your development rights in light of Hurricane Ian, please do not hesitate to contact Katie Berkey, Esq., AICP.
Community association boards and managers should ensure that their communities have adequate disaster planning measures in place as hurricane season approaches. To help you in weathering the storm, check out Becker’s Hurricane Guide which provides important tips and information to help protect your community.
For more information, contact your Becker attorney.
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!
UPCOMING CLASS OFFERINGS:
- HOA/Condo Board Member Certification
10/26/22 – 12PM – REGISTER NOW
- The Ins and Outs of Florida’s New Condo & Coop Safety Law
11/2/22 – 12PM – REGISTER NOW
- Condo Board Member Certification
11/9/22 – 10AM – REGISTER NOW
To view our entire class roster, visit: beckerlawyers.com/classes
Attorney Spotlight – Joseph E. Adams
At Becker, we are thinking and planning for the future and are focused on growth with our clients’ needs front of mind. Joe Adams is one of the firms outstanding leaders and we appreciate all that he has done and continues to do for Becker. Joe remains very active in the strategic management and operation of the firm serving on Becker’s Management Committee. He will continue to serve his community association clients and actively participate in Florida Bar committees, legislative committees, and other industry-specific organizations. Joe is also a prolific author. His legal writings include his very successful and highly trafficked weekly blog.
Can They Do That?
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’
Think you know what community association life is all about? Think again. Residents must obey the rules, directors must follow the law, and managers must keep it all running smoothly. Take It To the Board explores the reality of life in a condominium, cooperative or homeowners’ association, what’s really involved in serving on its board, and how to maintain that ever-so-delicate balance of being legally compliant and community spirited. Leading community association attorney Donna DiMaggio Berger acknowledges the balancing act without losing her sense of humor as she talks with a variety of association leaders, experts, and vendors about the challenges and benefits of the community association lifestyle.
- 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 & Refereeing 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
- Ensuring Community Association Safety with Platinum Group Security
- Building Basics with Construction Counsel Patrick Howell
- Keeping Cool with Jane Gilbert, Chief Heat Officer, Miami-Dade County
- 2022 Legislative Session in Florida Wrap Up with Yeline Goin, Becker & Poliakoff
- The Current Crisis with Florida’s Real Property Insurance with Andrea Northrup, Vice President of Insurance Office of America (Part 1)
- The Current Crisis with Florida’s Real Property Insurance with Andrea Northrup, Vice President of Insurance Office of America (Part 2)
- The Smoker’s Dilemma with Dennis Eisinger of Eisinger Law
- Assessing Collections with Joy Mattingly, Becker & Poliakoff
- Mapping the Terrain of Landscaping for Community Associations with Brian Steele, Director of Operations, East Coast Facilities
- Successful Community Association Living Starts With the Purchase Decision with Marisa DiLenge, Founder of DiLenge Real Estate Team (Part I)
- Successful Community Association Living Starts With the Purchase Decision with Marisa DiLenge, Founder, DiLenge Real Estate Team (Part II)
- To Lend or Not To Lend with Brewster Cole, First Vice President, Valley National Bank
- Florida Representative Dan Daley on How We Get the Laws We Get
- A Novel Approach: Coaching for Community Association Boards with Carmelo Millimaci, Senior Coach, Ackert Inc.
- Taxes, Taxes, and Fewer Taxes with Marty Kiar, Broward County Property Appraiser, Part 1
- Taxes, Taxes, and Fewer Taxes with Marty Kiar, Broward County Property Appraiser, Part 2
- Parliamentary Procedure: How to Keep Your Meetings on Track with Parliamentarian Jim Slaughter
- Alternative Dispute Resolution with Jeffrey Streitfeld, Mediator
- Elevators & Electric Charging Stations with Todd Schwartz
DID YOU KNOW?
Becker is teaching two classes at The 2022 Cooperator Tradeshow on Thursday, December 8, 2022 at the Broward County Convention Center – 1950 Eisenhower Blvd, Fort Lauderdale, FL 33316.
Are you planning to serve on your HOA/Condo Board? Kenneth S. Direktor and Karyan San Martano will provide the tools and information you need to perform your job well from 8:00 AM to 10:00 AM. Don’t miss your chance to receive 2 ELE Credits at this year’s Expo.
Donna DiMaggio Berger and Howard J. Perl will review the laws passed during the 2022 Legislative Session impacting condominiums, cooperatives, homeowner associations, timeshares and the community association management profession. Receive 1 LU Credit for The 2023 Legal Update! This class is taking from 12:00 PM to 1:00 PM at this year’s Expo.
Association Voting in the Electronic Age
Q: I serve on the Board of a very large condominium association. Getting unit owners to return proxies and ballots is difficult (to say the least), making it almost impossible to get voting items to pass. Oftentimes, we have a hard time even getting a quorum. With so many people being accustomed to “Zoom” meetings, is there a way that we can require owners to vote online?