Articles Posted in Condominium Association Law

Jonathan Mofsky Gort photoThe firm’s Jonathan M. Mofsky authored an article that appeared as a guest column in today’s edition of the Daily Business Review, South Florida’s exclusive business daily and official court newspaper.  The article, which was titled “Important Ruling for Associations Seeking to Foreclose in Advance of Lenders,” focused on the clarity that was created by a recent appellate ruling over some lingering questions involving community association foreclosures.

Jonathan’s article reads:

The decision by the Fourth District Court of Appeal in Jallali v. Knightsbridge Village Homeowners Association clarifies the applicability of a 2012 ruling on association foreclosures by the same appellate court in U.S. Bank v. Quadomain Condominium Association. This prior ruling was being incorrectly applied to assert that associations were barred from filing foreclosure actions based upon a claim of lien recorded after the recording of a notice of lis pendens by a lender.

The language utilized in Quadomain created confusion for cases involving association lien foreclosures, which has become one of the primary remedies for associations to address the inequities caused by mortgage foreclosure cases that take years to complete. By filing and quickly prosecuting separate foreclosure actions based on liens for unpaid assessments, associations have been able to acquire and rent properties embroiled in prolonged mortgage foreclosure proceedings.

dbr logo-thumb-400x76-51605The ruling created a substantial hurdle for associations to overcome against homeowners who raised the Quadomain defense, which in some cases enabled the owners to defeat or delay association foreclosure actions and remain in their residences without paying monthly dues or mortgage installments while the lenders’ foreclosure cases languished.

Continue reading

The South Florida condominium association that I wrote about in this blog recently after it was featured in a local TV news report on its problems being caused by Pokémon Go players has now filed a class action lawsuit against the makers of the immensely popular game app.

As was documented in the recent report that appeared on Local 10 News (WPLG-ABC) in Miami-Dade and Broward, the oceanfront Villas of Positano in Hollywood, Fla. has essentially been besieged by crowds of people every night who are playing the “augmented reality” game.  The 62-unit condominium tower has been designated as a PokéStop in the game, which the lawsuit alleges has led to “out of control crowds” behaving “like zombies, walking around bumping into things” where the property adjoins the public boardwalk along the beach.

The complaint, which was filed recently in the U.S. District Court for the Northern District of California, is one of several similar new lawsuits against San Francisco-based game developer Niantic and the two other companies behind the game.

pokemonThe lawsuit states that players have been drawn to the Villas to capture rare Pokémon characters that are programmed to spawn when they are first released to the public at 3 a.m. EST.

The suit states that the Pokémon Go players linger for hours, litter, and many even use “the Villas’ landscaping as a toilet during their nightly incursions.”  It notes that the association has made multiple requests to Niantic for the property to be removed as a PokéStop but has only received form responses.

Continue reading

Helio De La Torre 2013Firm partner Helio De La Torre was quoted in an article that appeared today in The Real Deal, an online media outlet that focuses exclusively on South Florida real estate news.  The article, which was titled “BrickellHouse’s Condo Association Runs into Another Snag in Robotic Garage Predicament,” focuses on the firm’s lawsuit against the developer of the 46-story Miami tower over the property’s failed robotic parking garage.  The article reads:

“The condo association has been left with this mess,” lawyer Helio de la Torre told The Real Deal. “We have to clean up this mess.”

On Aug. 23, de la Torre’s client, BrickellHouse Condominium Association, filed an amended lawsuit against Hernandez, his company BrickellHouse Holding LLC and Hartford Steam Boiler Inspection and Insurance Company, seeking additional damages for the possibility that some condo owners may be left without a parking space if the building’s troublesome robotic parking garage is replaced with a new system.

The association initially sued the developer in January and amended its complaint three times in March to add more counts regarding the failure of the the 374-unit building’s robotic parking garage. TRDlogo Court documents allege buyers were promised South Florida’s first fully automated parking system that would deliver their vehicles in and out of the building without drivers inside the cars.

Continue reading

Disagreements over service animals have consistently ranked among the most prevalent types of disputes that arise between community associations and their residents. In South Florida alone we have witnessed numerous investigations concerning discrimination claims —many of which still serve as stark reminders of the severe implications of mishandling requests for service animal accommodations.

Most government investigations begin with a complaint from a resident indicating that their request for assistance animals had been denied or that they had refrained from requesting an assistance animal for fear of being evicted.

In light of the patterns we have seen throughout the years, associations should refrain from automatically denying requests for permission to keep service or emotional support animals without first requesting additional information from the resident. By law, associations are entitled to make inquiries in order to determine if the request is legitimate and whether a service or emotional support animal is a necessary accommodation in order for the resident to have an equal opportunity to use and enjoy their dwelling.

sdogAssociations are entitled to inquire about how the disability affects the resident’s major life activities (walking, breathing, working, seeing, hearing are examples of some defined major life activities), and how the animal assists the individual with any major life activity that is impaired by their disability when the disability or the need for the requested accommodation is not apparent.  Associations may also request that the resident provide this information from their doctor.

Continue reading

MichaelChapnicksrhl-law-thumb-120x180-94116Firm partner Michael E. Chapnick authored a guest column that appeared in today’s edition of the Daily Business Review, South Florida’s only business daily and official court newspaper.  The article, which was titled “For Many Condo Communities, Pokemon Go Quickly Becoming Pokemon No,” discusses some of the security, safety and nuisance issues that are arising as a result of the popular new game app for smartphones.  Michael’s article reads:

The issues arise both from nonresidents who are pursuing these animated characters and feel compelled to enter a property as well as from residents and their guests who are gallivanting through the hallways and common areas at all hours in their never-ending search for more Pokemon.

While some association complexes feature a manned security gate at the main entrance, many do not and visitors are able to drive onto a property without restriction. The game does remind players to be aware of their surroundings and not to trespass, but it also encourages them to visit new locations. Some players are now simply driving up to condominium entrances and trying to see if they could perhaps even park and walk around to check for any nearby Pikachu, one of the characters. Needless to say, this creates significant security and liability issues for properties.

dbr logo-thumb-400x76-51605In addition, the hallways, pool decks and other common areas that are accessible to residents and their guests around the clock are quickly becoming gathering grounds for the players of the game, which features “lure modules” and virtual gyms to encourage them to meet and wage battles with their Pokemon. These aspects of the game lead to players congregating at all hours, which is causing significant nuisances and safety concerns for some communities’ residents and staff.

Continue reading

The recent report by Local 10 News (WPLG-ABC) in South Florida about a Hollywood, Fla. condominium association that is considering filing a lawsuit against the maker of the Pokémon Go game app came as no surprise to our firm’s community association attorneys.  We are now starting to hear from many of our condominium and homeowners association clients about their distress regarding the nuisances and potential security and liability issues that are arising as a result of the game and its players.

The station reports that the condominium association for the Villas of Positano is considering legal action to combat the throngs of Pokémon Go players who flock to the beachside building in the early morning hours.

The issue for the property is that it is a “PokeStop” for the popular game, meaning that the virtual monsters which the players are trying to find can be found at the entrance to the property that adjoins the public boardwalk along the beach.  Rare Pokémon monsters are released at midnight Pacific Time, so at 3 a.m. EST hundreds of players make their way to the condominium’s doorstep.

The property manager is quoted in the report indicating that the players urinate in the bushes in the property, litter and make a great deal of noise, which disturbs many of the residents.

The report indicates that Hollywood police are aware of the problem, but they have said that those who remain on the boardwalk and do not cause a disturbance are not breaking the law.  However, unfortunately for the association, many of the players are infiltrating its property in their search for the virtual characters.

The association is considering joining a class-action lawsuit or filing one of its own because the game’s maker has yet to remove its location as a PokeStop.

In addition to the problems arising from nonresidents, our firm’s other attorneys and I have been made aware that there are also issues arising caused by residents and their guests who are gallivanting through the hallways and common areas at all hours while playing.  The game features “lure modules” and virtual gyms to encourage players to meet and wage battles with their Pokémon, so players are interrupting their searches to congregate and play it together in the common areas.

Boards of directors are now beginning to address these issues.  Many are starting by issuing a bulletin to all of the owners, residents and staff reminding them that excessive noise in any of the common areas – including from Pokémon Go players – creates nuisances that are in violation of association rules, and building management/security should be contacted if any such nuisances arise so that immediate action may be taken.

Management, security and valet staff are also being tasked to maintain a high level of vigilance for nonresident players attempting to infiltrate the property as well as for residents and their guests creating disturbances while they are playing.  Other considerations include restricting access to lobbies and common areas during nighttime, checking to make sure the association has sufficient insurance coverage, and even adopting rules governing the times of day that the game (and others like it which are sure to come) can be played in the common areas.

Click here to watch the report in the station’s website.

The problem of short-term rentals with the help of Airbnb and other similar websites in violation of community association rules has quickly become one of the most pressing issues facing associations today.  Even though Airbnb, HomeAway and VRBO claim they prohibit their hosts from renting residences in communities with rules against short-term rentals, enforcement of this policy by the online home sharing providers is virtually nonexistent.

This makes it incumbent upon the associations and their property managers to proactively monitor and investigate for unauthorized rentals and their online listings, which can be extremely difficult.  In most cases, the unit owners conducting the rentals know full well that they are violating their association’s rules, so they do what they can to avoid detection.

abnbTheir ploys, which typically include walking their new guests into the property and advising security that their visit is authorized, are enabling many rentals to go undetected by management and staff.  The result can be very troubling for associations, as unfettered short-term rentals can create a revolving door for guests with none of the prior screening and background checks that are typically performed for new residents and tenants.

Continue reading

In case you missed it, the recent video of patio furniture being blown off of balconies at a downtown Miami condominium went viral and made local and national headlines.  It shows what appears to be a significant number of chaise lounges, chairs and cushions flying extremely high into the air over the Miami streets and then plummeting down onto Biscayne Blvd. and Museum Park.

Needless to say, wind-blown debris from high-rises can be extremely dangerous, and this is not the first time that it has happened in Miami.  National Weather Service science officer Kevin Scharfenberg, who works at the agency’s Miami office, told the Miami Herald that the last time a storm in the area blew furniture into the air was in March of last year.

In that incident, a glass tabletop was blown from the ninth floor of a building, hitting a maintenance worker who tragically later died at a nearby hospital as a result.

After viewing the recent video, Scharfenberg was quoted in the Miami Herald’s report indicating that he believes winds as high as 70 mph were present at the time the video was shot.

South Florida is prone to severe tropical thunderstorms that bring extremely strong winds, and these recent incidents and video serve as a reminder of the importance for condominium associations, especially high-rise buildings, to address this issue with their owners and residents.  With the help of experienced association counsel and property management, association board members should consider appropriate rules and regulations concerning balconies, patios and terraces, including the placement and storage of patio furniture and other items on those areas, together with communications alerting members and residents of the dangers and potential liability caused by wind-blown debris.

The level of exposure to potential incidents such as these will vary greatly among South Florida condominiums.  Association directors should take the property’s level of risk for these incidents into account in determining the measures and communications that should be implemented.

Watch the astounding video below.

 

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.

psigns

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.

Continue reading