Featured Articles

Many associations’ governing documents include clauses that prohibit commercial business activities from being conducted in a resident’s unit.  Some include a blanket stipulation banning commercial activity altogether, while others make a distinction between permissible and impermissible activities.  While it makes sense for associations to want to regulate and restrict businesses from operating within their communities, HOAs and condominium associations should take a prudent approach that is guided by reason.

When considering how to regulate and enforce restrictions against commercial activities, associations should focus on the impact that particular activities have on the community and the quality of life of those who make it their home.  Today’s technology allows for a great deal of work to be done from home with no disruptions whatsoever to the community at large.  homework-300x200Rather than attempting to ban all commercial activities in a community, the better option is to specifically delineate in the governing documents the types of activities that are not allowed.

Some of the activities that communities wish to ban are those that entail significant vehicular traffic, including from clients as well as vendors and delivery vehicles.  Continue reading

A recent report by the Jacksonville, Fla., ABC network affiliate exemplifies the calamitous results that can ensue when condominium associations and HOAs are inadequately prepared to meet the long-term maintenance needs of their communities.  The station chronicled the battle that is taking place at the Fountain Gate Condominium, which is composed of a number of buildings that were originally built in the 1980s and now need their wood siding replaced.

According to the report, the association’s board of directors has approved the procurement of a bank loan for $1.5 million for the project.  It would be repaid by imposing a special assessment of approximately $20,000 per unit, to be paid monthly over seven years.

One of the directors on the association’s board, Jody Kilgore is against the special assessment proposal, which met with an immediate backlash by the unit owners.  She is quoted in the report saying that the owners, who are mainly retirees in their 70s and 80s on fixed incomes, “feel like we’re being railroaded.”

fgate-300x199She goes on to say that the unit owners are being left out of the decision-making process, explaining that Florida law requires the approval of 75 percent of the owners for material changes such as this repair project.  Instead, she notes that the board of directors alone voted to approve the changes.

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MTobacksrhl-law2-200x300The firm’s Michael Toback authored an article that was featured as the “Board of Contributors” guest commentary column in today’s edition of the Daily Business Review, South Florida’s exclusive business daily and official court newspaper.  The article, which is titled “Case to Watch: HUD Complaint Against Condo Association Ban on Religious Meetings,” focuses on a recent complaint to the Department of Housing and Urban Development regarding alleged Fair Housing Act violations by a Florida condominium association that banned religious meetings from its community room.  Michael’s article reads:

Bans of any kind against the use of the community room, such as those for specific gatherings, should be considered only after prudent consultation with experienced legal counsel. Furthermore, a ban against religious gatherings can prove particularly troublesome due to the potential for violations of the federal Fair Housing Act.

Such cautious considerations may have been overlooked in the decision by a board of directors of a Port Charlotte condo association to prohibit prayers and religious meetings in their community’s common room. The ban by the association for the Cambridge House of Port Charlotte led to the filing of a complaint with the U.S. Department of Housing and Urban Development alleging violations of the federal Fair Housing Act as well as Florida condominium laws.

The complaint was filed on March 6 on behalf of Cambridge House resident Donna Dunbar, who is a lay minister in the Seventh Day Adventist Church and the leader of a women’s Bible study group that formerly met in the Cambridge House common room for two hours on Monday mornings. It alleges that on Feb. 6 the Cambridge House’s board of directors adopted a resolution to prohibit prayers, religious services and religious meetings in the common areas.

The allegations also state that Dunbar and her Bible study group faced discrimination before the Cambridge House prohibited their meetings, claiming that the board of directors had previously required her to purchase insurance in order to hold the gatherings. Dunbar claims this requirement was despite the Cambridge House not mandating that other groups holding movie and game nights obtain similar coverage.

Dunbar_Piano_Image-1-300x225After the ban was imposed, Dunbar alleges that religious displays at Cambridge House were removed, including the removal by property management staff of a St. Francis of Assisi fountain and statue. Dunbar further claims that a sign was posted on an organ in the lobby declaring: “ANY AND ALL CHRISTIAN MUSIC IS BANNED!”

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Condominium association boards of directors are always considering measures to help maintain and enhance the quality of life of their community’s owners and residents.  Some associations grow concerned about too many occupants per unit and the burden that additional residents place on a community’s amenities and services, so they decide to implement occupancy restrictions in order to limit the number of people residing in each unit.

However, as a Palm Beach County condominium recently found out, overly aggressive occupancy restrictions have the potential to run afoul of the federal Fair Housing Act bans on discriminatory housing practices against couples with children, and nonprofit housing agencies are willing and able to take up the case of aggrieved residents or proposed residents.

A fair housing advocacy group called the Fair Housing Center of the Greater Palm Beaches filed suit in federal court recently against the condominium association for the Fontana Condominium in Palm Beach as well as its president and property manager.  The suit alleges that the defendants have discriminated against families, including those with minor children, by enacting and enforcing policies that limit the number of persons and children who may reside in the community’s units.  It is seeking preliminary and injunctive relief as well as damages for the alleged discrimination against familial status in housing that violates the Fair Housing Act and the Civil Rights Act of 1968.  The suit also seeks punitive damages, attorneys’ fees and a court order mandating that the defendants establish a victims’ fund for those were victimized by their discrimination.

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EvonneAndris-srhl-law-200x300Firm shareholder Evonne Andris authored an article that was featured as the “My View” guest commentary column in today’s edition of the Miami Herald’s Business Monday, the newspaper’s weekly business supplement.  The article focuses on the brouhaha that drew considerable media attention in Orlando earlier this year involving an HOA’s dispute with a homeowner family over a “Little Free Library” book-sharing box installed in the front yard of their home.  Evonne’s article reads:

The library in question is a red wood box that resembles a birdhouse and is mounted on a sturdy wood post. The box, which is 24 inches tall, 20 inches deep and 24 inches wide, is part of the “Little Free Library” (www.littlefreelibrary.org) nonprofit organization’s network of free book exchange boxes that encourage reading and enable people to share books with their community. While popular in the central part of the state, there are approximately 10 Little Free Libraries in the South Florida area and more than 60,000 Little Free Libraries across the country.

agarik-1024x576The news reports indicate that within a few days of homeowners Bob and Autumn Garick installing the library box in their front yard, the property manager for Bentley Woods wrote to thank them for their efforts and suggest that they move the box to a common area in the neighborhood. The Garicks declined the offer, noting that the suggested area was about a half-mile from their home and would make it impractical for them to maintain the library.  Pictured here are the Garicks with their Little Free Library (photo courtesy, Autumn Huff Garick).

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One of the key takeaways from Hurricane Irma was a reminder about the importance of keeping trees properly trimmed in order to avoid damage to power lines from downed foliage.  However, a recent report by Channel 7 News (Fox) in South Florida about a Hallandale Beach HOA’s troubles with the city over its allegedly exorbitant tree trimming serves as a cautionary tale for all Florida community associations.

According to the report, the insurance company for the Hallandale Village Homeowners Association asked association president Richard Masone to trim the trees around the property at the start of this year’s hurricane season.  Masone complied and asked the association’s regular landscape maintenance company to trim the trees.

hrack-tree-300x225The job pleased the community’s insurer, but Hallandale Beach Code Enforcement officers were not happy with the tree trimming.  City Manager Roger Carlton called the trimming unacceptable, noting that it “enormously exceeded any reasonable amount.”

The association was told by the city that the trees were “hatracked,” or over-trimmed, and they ordered the community to dig up and replace the trees, which entails hiring an arborist and pulling permits for each of the 10-15 trees that would need to be replaced.

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Nicole-Kurtz-2014-200x300The firm’s Nicole R. Kurtz authored an article that is featured as a Board of Contributor’s guest commentary column in today’s edition of the Daily Business Review, South Florida’s exclusive business daily and official court newspaper.  The article, which is titled “Court: Association Declaration’s Reference to Alterations Encompasses Material Alterations,” focuses on a recent ruling that illustrates how Florida courts will turn to the plain and unambiguous meanings of terms in interpreting a community association’s governing documents.  For associations with declarations of condominium stating that the board of directors has the authority to approve alterations to the common elements, the decision emphasizes that such authority extends to all additions or improvements to the association’s common elements, including material alterations.  Nicole’s article reads:

. . . In 2016, the [Regency Tower condominium] association’s board of directors voted, without obtaining membership approval, to replace the existing Carrara marble flooring in the lobby with ceramic tile flooring. In response, one of the association’s unit owners challenged the board of directors’ authority to replace the lobby flooring without first obtaining approval from the association’s members.

The unit owner asserted his challenge by filing a petition for arbitration with the state’s Division of Condominiums, Timeshares and Mobile Homes. After the petition was dismissed by the arbitrator, he filed a lawsuit against the association in circuit court.

dbr-logo-300x57The owner’s position, in both the arbitration and the lawsuit, was that the association’s declaration of condominium did not include a provision detailing the procedure for approving “material alterations,” as it only referenced the board of directors’ authority to approve “alterations.” As such, the owner argued that Section 718.113(2)(a), Florida Statutes, which is triggered should there not be a procedure in an association’s declaration of condominium for the approval of material alterations, applied and precluded the board of directors from being able to unilaterally approve of the lobby flooring modification.

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The recent news report by CBS4 Miami about a Miami Beach man who was charged with attempted murder and attempted arson for plotting to burn down his condo building should serve as a wake-up call for all condominium associations in Florida and across the country.  It appears to be a case in which the warning signs may have triggered a call to authorities that averted a horrific tragedy just in the nick of time.

The report states witnesses told police that Walter Stolper, 72, had shown aggression toward his fellow residents and the members of the association’s board of directors at their building at 56th Street and Collins Avenue.  As a result, he was facing an eviction action.

cbs4The breaking point for the initial call to authorities came when Stolper spoke with his friend Luis Diaz, who states in the station’s report:  “He told me he was tired of the association and the Jews in the building and he wanted to do something about it. He said he wanted to burn down the building. At first, I didn’t think he was serious, but then I heard him talk about blocking the fire department and their hoses, I realized he was serious and I had to do something.”

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MichaelHymanFirm shareholder Michael L. Hyman authored an article that appeared as a “Board of Contributors” guest commentary column in today’s edition of the Daily Business Review, South Florida’s exclusive business daily and official court newspaper.  The article, which is titled “Circuit, Appellate Courts Issue Injunction Against HOA to Fix Flooding Problems,” focuses on recent decisions by circuit and appellate courts that illustrate how Florida’s courts will issue mandatory injunctions to force community associations to do their duty to maintain drainage systems.  The article reads:

The case of Coconut Key Homeowner’s Association v. Gonzalez pitted a homeowner against her HOA, which she alleged breached its governing documents by failing to properly maintain the surface water management system for the community. This caused chronic flooding problems in her own backyard whenever it rained and led to significant damage to her home.

Gonzalez sought an injunction to require the association to cure the alleged surface water management violations and stop the flooding problem. A Broward circuit court jury ruled in her favor, concluding that the association breached its governing documents by failing to maintain and operate the surface water management system in the community. However, it concluded that this breach was not a legal cause of damage to Gonzalez, so it awarded no monetary damages.

dbrlogo-300x57The court then conducted a post-trial hearing on whether to issue an injunction against the association. It granted Gonzalez’s motion for a mandatory injunction in accord with the jury’s finding that the HOA’s violations of its own governing documents caused her irreparable harm without an adequate remedy under the law.

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GaryMars3For the second consecutive day, an article on important community association issues authored by one of our partners has served as the featured guest commentary column in the pages of the Daily Business Review, South Florida’s exclusive business daily and official court newspaper.  The article in today’s edition of the newspaper is by Gary M. Mars, and it is titled “Community Associations Should Make Effective Use of Social Media.”  Gary’s article reads:

There is no doubt that the use of social media can save community associations time and money with some of their communications and outreach efforts aimed at their owners and residents. Adding new posts with photos and videos to an association’s social media pages is simple and free, and millions of Americans are now visiting Facebook, Twitter, YouTube, Instagram, LinkedIn and others on a daily basis.

Some associations are now including community calendars in their Facebook group site as well as meeting notices, agendas and notes. dbr-logo-300x57These group pages are also ideal for posting links to copies of annual reports, community bylaws, and other helpful items and forms.

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