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Florida HOA Lawyer Blog

A recent news report by WFTV Channel 9 (ABC) in Orlando focused on the accounts of some of the residents of the Cypress Head at the Enclave gated community in Oviedo indicating that the HOA has neglected to take action against a homeowner whose tenants are creating an extreme nuisance.

A resident is quoted in the report indicating that the HOA has neglected to adequately address the problems being caused by his neighbors, who are University of Central Florida students.  He claims that they urinate in his yard, where he has even found discarded condoms, and his photos and videos documenting the large piles of trash and vehicles parked on the sidewalks from their many “wild parties” are included in the report.

The resident indicates that he has attempted to resolve the matter via mediation with the homeowners association to no avail, and he has since received a letter from its attorney indicating that compliance has been met.

The resident’s attorney tells the reporter that they will be filing a lawsuit against the homeowner and the HOA, and judging from his clients’ photos and video showcased in the news report it appears that may have a strong case.

The takeaway from this episode for HOAs is that they would be wise to be very diligent in their efforts to effectively contend with residents who are creating a nuisance for their neighbors.  In addition to the prospect of litigation, the HOA in this case was also hit with an extremely negative news report by one of its local TV stations, and such a report can adversely affect the community’s reputation and property value.

Fire sprinkler systems, part of a building’s “Life Safety System,” are a crucial component of condominium buildings because they help protect against damage to life and property in the event of a fire.  While maintaining these systems in proper working condition is important, making sure that the fire sprinkler system was properly designed and has compatible materials from inception is imperative.

Our firm, led by Steven M. Siegfried, Alton C. Hale, Jr., Jason M. Rodgers-da Cruz, Nicholas D. Siegfried and Stuart Sobel, together with Ervin Gonzalez and Patrick Montoya of Colson Hicks Eidson, P.A., has filed a class action lawsuit on behalf of a number of condominium associations.  By this action, we are seeking compensation sufficient to replace the hybrid fire sprinkler systems installed in these buildings. blogpipe1 The hybrid systems include CPVC and Allied ABF steel pipes.  These materials are incompatible with each other, and as a result of this incompatibility, cracks have or will develop in the CPVC resulting in system failure over time.

We strongly recommend that condominium associations — and also other high-rise buildings such as office building and hotels — determine whether their fire sprinkler system contains steel pipe manufactured by Allied with the markings “ABF” that were installed in conjunction with CPVC pipes.  Particular attention should be taken, especially if the building was built during the years 2004 to 2010, so that if present, this defect can be identified and addressed.

blogpipe2Those with any questions or in need of assistance in determining whether their building is affected by this defect may contact us at our Coral Gables office at 305.442-3334 or via email at [email protected].

 

Every four years, as presidential elections heat up, condominium and homeowners association communities throughout Florida are faced with the issue of political signs being posted in front yards, on balconies, in windows and on and around the common areas.  Association attorneys are often consulted, and most would advise associations to be extremely careful with how they create and enforce restrictions that prohibit political expression.

Most associations’ governing documents include restrictions that prohibit residents from posting signs anywhere on the unit or the property.  Political signs, however, give rise to issues of freedom of speech, which is protected by the First Amendment.

The key for associations to remember is that restrictions on freedom of speech under the First Amendment apply only in governmental or public settings, so community associations, as private non-governmental entities, are allowed to restrict signage, including political signs, in accordance with their corresponding state law.  Some states have enacted legislation specifically addressing the issue, but Florida has not and neither has the state’s Supreme Court addressed the issue specifically.

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As a result, Florida’s associations are able to enact and/or enforce rules and restrictions governing the display of political signs by their members, but they are cautioned to do so very judiciously and under the watchful guidance of highly experienced association legal counsel.

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MichaelChapnicksrhl-law-thumb-120x180-94116An article authored by firm partner Michael E. Chapnick appeared as a guest column in today’s edition of the Daily Business Review, South Florida’s exclusive business daily and official court newspaper.  Michael’s article, which was titled “Proposed HUD Rule Would Make Associations Guardians of Civil Rights,” focuses on a proposed rule change by the Department of Housing and Urban Development that could have a significant impact in associations’ involvement in some matters involving disputes among members.

Michael’s article reads:

In October 2015 the U.S. Department of Housing and Urban Development promulgated proposed rules and regulations that have the potential to significantly expand associations’ involvement in some matters involving disputes among members. The proposed changes would serve to standardize how claims of harassment are to be treated under the Fair Housing Amendments Act, and they address both quid pro quo (this for that) and hostile environment harassment in housing.

Claims of quid pro quo harassment typically arise in the context of sexual harassment, which is considered a form of sex discrimination and is prohibited under the Fair Housing Act, in cases in which housing providers condition housing or housing-related services or transactions on sexual conduct.

Hostile environment harassment includes subjecting a person to unwelcome conduct that is sufficiently severe or pervasive such that it interferes with or deprives the person the right to use and enjoy their home.

The proposed hostile environment rule is not based solely on sexual discrimination. It covers all of the protected characteristics, also known as protected classes, under the Fair Housing Act: race, color, national origin, religion, sex, family status and disability.

dbr logo-thumb-400x76-51605The new rule intends to clarify standards for liability based on traditional legal principles of tort liability. It states that a person would be directly liable for failing to take prompt action to correct and end a discriminatory housing practice by that person’s employee or agent when the person should have known of the discriminatory conduct. A person would also be directly liable for failing to take prompt action to correct and end harassment by a third party when the person knew or should have known of the harassment and had a duty to intervene.

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For most homeowners association communities, one of the primary functions for the associations in their enforcement of the community’s declaration is ensuring that all of the homeowners are maintaining the exterior appearance of their property.  Poorly maintained homes detract from a community’s appeal and diminish its property values, and HOAs are charged with conducting all of the necessary enforcement actions in order to consistently and fairly ensure that all of the homeowners in their community are doing their part.

A ruling earlier this month by the Fourth District Court of Appeal reinforced an HOA’s ability to have its homeowners remedy a violation of the community’s declaration involving the appearance of their home.

In the case of Hibbs Grove Plantation Homeowners Association v. Avraham Aviv and Helen Aviv, the HOA notified the Avivs that their home was not in compliance with the community’s declaration due to their failure to remove mold/mildew from the exterior of their residence.  The notice referenced the declaration’s caveat that “exterior surfaces and/or pavement, including, but not limited to, walks and drives, shall be pressure treated within thirty (30) days of notice by the ACC [Architectural Control Committee].”

The Avivs responded by hiring a company to pressure clean the exterior of their house and supplied the HOA with written proof that the job had been completed, but the association went on to file for injunctive relief.

mmonhomeThe trial court then granted the homeowners’ motion for final summary judgment, finding that they fully complied with the association’s demand to pressure clean the exterior of their home.  In its filing in opposition to the summary judgment, the association emphasized the deposition testimony of the Avivs in which they acknowledged that after the pressure cleaning some “stains” remained.  The association argued that “the relief sought by way of injunction in this case has not been obtained since the marks and/or the stains remained after the filing of the complaint and/or continue to exist.”

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Maintaining the common elements and areas is one of the primary functions and responsibilities of community associations.  Last year’s ruling by the Seventh Judicial Circuit Court’s Appellate Division illustrates the potential consequences that may arise in the event an association does not adequately address complaints by unit owners regarding nuisances resulting from the improper maintenance of the common elements.

In the case of Harbor View Daytona Condominium Association v. Katherine Strachan and John F. Strachan, the Strachans had complained to the association for several years of drainage back-flow plumbing problems causing black, soapy water to back up into the toilets, showers and sinks of their first-floor unit.

One of the plumbers who performed work at the condominium building during its original construction testified in depositions that when Harbor View converted from rental apartments to a condominium, washing machines were added to the individual units.  While most of these washing machines connect to a drainpipe dedicated exclusively to them, the washing machines on the eighth floor penthouse level drain into pipes to which kitchen sinks from lower units are also connected.

Harbor View Condominium

In this particular case, the washing machine from unit 808 is the only one that drains into the kitchen sink line that serves the Strachans’ unit.  According to the plumber’s testimony, Harbor View’s plumbing system was not designed to accommodate new high-efficiency washing machines that discharge water at a higher rate of speed than older machines, and in his opinion, unit 808’s high-efficiency washing machine is causing the plumbing problem.

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Firm partner Roberto C. Blanch, who has written extensively about community association fraud in this blog and recently authored an article on the topic for the op-ed page of the Miami Herald, appeared on Spanish-language television network AméricaTeVé’s popular “A Fondo” live show hosted by Pedro Sevcec yesterday at 8 p.m.  He was joined by one of the two journalists from el Nuevo Herald behind the newspaper’s investigative series exposing possible fraud at several South Florida condominium communities.  The segment specifically focused on board of directors election fraud, and several cases of suspected fraud were discussed.

Our firm congratulates Roberto for sharing his insights into this important issue with the network’s viewers.  Click below to watch the Spanish-language segment.

 

An article in the Miami Herald that appeared on Saturday, April 16, reported that more than 250 South Florida condo residents teamed up to march against condo fraud last week.  The protestors, who marched on the streets of Doral, demanded that authorities reform condo laws in order to prevent fraudsters from taking advantage of their communities.  The protest included residents from several areas in Miami-Dade County, including Kendall, North Miami Beach and Aventura, as well as from Broward County.

Our firm has been very active in spotlighting this growing problem throughout the years in this blog and in our complimentary educational seminars for association directors, members and managers.  Recently, firm partner Roberto C. Blanch authored an article that appeared in the op-ed page of the Herald calling for greater law enforcement and regulatory efforts to combat association fraud.  Roberto wrote:

MHerald2015Florida is the state with the most community associations in the country, with more than 47,000, and it has now become imperative for the state’s lawmakers, regulators and law enforcement agencies to change their collective mindset in their approach toward combating community association fraud, theft and embezzlement.

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Gary M. Mars

The firm’s Gary M. Mars authored an article that appeared in today’s edition of the Daily Business Review, South Florida’s exclusive business daily and official court newspaper.  Gary’s article, which was titled “Ruling Reminds New Associations to Watch for Developers Waiving Reserves,” focuses on a recent appellate ruling regarding the issue of developers waiving their funding of reserves prior to the turnover of an association for a new community from the developer to the unit owners.  His article reads:

A recent appellate ruling shined a spotlight on the all-too-common issue of developers improperly waiving their funding of reserve accounts while they retain control of an association for a new community before its turnover to the unit owners.

The ruling served as an important reminder for the owners at new developments of the careful vigilance that they need to exercise for any questions involving the funding and use of reserves by developers.

The ruling was filed by the Fifth District Court of Appeal in the case of Meritage Homes of Florida v. Lake Roberts Landing Homeowner Association. Meritage, the developer of the subdivision located in Winter Garden, appealed the trial court’s final judgment in favor of the homeowner association, which found that the requirement for HOA reserve accounts in the city code of Winter Garden cannot be waived as Meritage had attempted.

Meritage based its appeal on its contention that the lower court’s ruling created an impermissible conflict with section 720.303(6)(f), Florida Statutes, which expressly grants homeowner associations the right to waive reserves. The developer’s initial annual budget planned for the HOA’s operating expenses as well as an $11,000 deferred maintenance reserve account, but it later approved a budget that completely waived its funding of the reserves.

dbr logo-thumb-400x76-51605Meritage asserted that it issued written notice to all of the association members, which included several homeowners at that point, but none of the members other than Meritage attended the budget meeting in which the board members approved the budget sans reserves.

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Our firm’s other community association attorneys and I often receive questions from association members, directors and managers about the Florida law requiring that high-rise condominium towers must have automatic fire sprinkler or Engineered Life Safety systems in place by the end of 2019.

I have developed a simple and brief overview of the Florida Fire Prevention Code (FFPC) that is now posted in our firm’s website.  The three-page document explains that the FFPC defines “high-rise building” to mean a building that is greater than 75 feet in height, with the height being measured from the lowest level of fire department access to the floor of the highest occupiable level.  It mandates that all such buildings other than those with an approved Engineered Life Safety System (ELSS) must be protected throughout by an approved and supervised automatic sprinkler system no later than December 31, 2019.

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