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Florida HOA Lawyer Blog

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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GaryMars3

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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Roberto C. Blanch

Roberto C. Blanch

Firm partner Roberto C. Blanch was quoted by reporter Carla Vianna of the Daily Business Review, South Florida’s only business daily and official court newspaper, in an article that appeared in today’s edition about the issues facing community associations involving short-term rentals via Airbnb.  The article reads:

Guests hoping to stay at a condo during the Miami Open tennis tournament found themselves stuck in a lobby with no access to the unit they rented on Airbnb, the online home-sharing service.

The family was denied keys to the property by the condominium’s management company.

. . . Miami-Dade County’s sunny beaches and high-rise condos make it a top destination for home-sharing networks like Airbnb and its users. The influx of visitors opting for alternatives to Miami’s pricey hotel rooms, like the family visiting for the Miami Open, is pushing demand for short-term rental options.

An estimated $2.4 billion was spent on lodging via Airbnb during the year ended in September 2015, commercial real estate firm CBRE Inc. reported. More than 55 percent was captured by five U.S. cities: New York, Los Angeles, San Francisco, Miami and Boston.

The rise of a sharing economy is creating a rift between condo owners looking to make extra cash and association boards whose members don’t want to share an elevator with strangers.

. . . “It has become a problem in a lot of condos,” said Roberto Blanch, a Miami attorney with Siegfried, Rivera, Hyman, Lerner, De La Torre, Mars & Sobel.

dbr logo-thumb-400x76-51605Associations at Mint and Ivy, two high-rise towers in downtown Miami’s Riverfront complex on the Miami River, are cracking down by restricting elevator and garage access to residents with a specific key fob or vehicle barcode, said Ari Tenzer, founder of the Tenzer law firm. Tenzer, who sits on his condo association board, said property managers are logging onto the Airbnb site themselves to catch violators.

Suspected violators receive written notice as a warning. They could also be called before a grievance committee.

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RobertoBlanch2013Firm shareholder Roberto C. Blanch wrote an article that appears in the op-ed “Opinions” page of today’s Miami Herald pegged to the ongoing investigative series by el Nuevo Herald that is being featured in the Herald.  The article, which was titled “Florida Must Improve Policing of Condo Fraud,” focuses on the need for changes in the state law enforcement and government’s collective mindset towards combating condominium association fraud.

Roberto’s article reads:

An investigative report in el Nuevo Herald chronicled the growing problem of election fraud at South Florida condominium associations. Based on the episodes of possible fraud uncovered by the reporters and the growing number of complaints by local condo associations, it has become apparent that it’s time to put teeth into Florida’s laws and enforcement actions addressing this type of fraud.

The report uncovered that at least 84 signatures were forged in fraudulent ballots submitted in the annual board member election last year at The Beach Club at Fontainebleau Park condominium in northwest Miami-Dade. It also describes how the election at the Los Sueños condo in Hialeah was anything but a dream when it resulted in an unprecedented voter turnout of 115 percent after the final vote tally exceeded the total voting pool.

The boards of directors control the purse strings for the communities they govern, and many communities have annual budgets of multiple millions of dollars that are used for a variety of lucrative service contracts. As such, condo association boards make for appealing targets for fraudsters who conspire to take over their control via annual elections.

MHerald2015In a recent case in Las Vegas, a U.S. Justice Department investigation revealed that 11 associations were defrauded of tens of millions of dollars in a board of directors takeover scheme from 2003 to 2009. Forty-one defendants were convicted of getting their straw unit buyers elected to the associations’ boards through tactics involving forgery, bribery, ballot stuffing and dirty tricks. The conspirators were found to have rigged the associations’ elections by traveling to Mexico to print phony ballots, using the master key at a condominium complex in order to remove ballots from mailboxes, and retrieving discarded ballots from condo dumpsters.

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Lisa A. Lerner

Our firm is known statewide for our work in all of the matters involved in community association law, and in 2015 we were privileged to have the honor of being asked to have Lisa A. Lerner, Roberto C. Blanch and Ivette Machado Blanch author one of the chapters for the Third Edition of the Florida Bar’s “Florida Condominium and Community Association Law.”

Roberto C. Blanch

Roberto C. Blanch

The chapter, which is titled “The Role of the Association in Condominium Operations,” is perhaps the broadest of the 17 chapters in the legal tome that is published as part of the Florida Bar’s continuing legal education program for its members. It covers everything from the role of associations and their powers and limitations to their liabilities and responsibilities, including annual budgets and reserves. It also discusses the Condominium Act, the turnover process from developer to unit owners, and the role of associations and their attorneys in this transition, and it features important forms that are used by associations for their meetings and elections.

Ivette Machado Blanch

Ivette Machado Blanch

The firm’s attorneys also cover covenant enforceability issues, including restrictions against pets, nuisances, etc., as well as the proper meeting procedures and forms, including notices and proxies, and the imposition of fines. They also discuss voting rights and the fiduciary duties of elected board members.

Our firm congratulates Lisa, Roberto and Ivette for developing such an outstanding and important chapter in a book that will play a vital role in building and maintaining the skill set of community association law practitioners in Florida. Click here for additional information or for attorneys who wish to order the book, which sells for $270 either in print or digital versions.