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A recent survey by the Community Associations Institute found that 67 percent of respondents have noticed an increase in home-based businesses operating within their communities due to the COVID-19 pandemic. In the same survey, 83 percent of respondents reported that their community restricts home-based businesses, but 73 percent indicated that their association was now being more lenient when it came to approving residents’ requests to operate businesses such as daycares, school learning pods, hair stylists and others from their homes.

Most Florida community associations have restrictions prohibiting commercial business activities from being conducted in residents’ units. Some include blanket bans on commercial activity altogether, while others make a distinction between permissible and impermissible activities.

homework-300x200It makes sense for associations to regulate and restrict businesses from operating within their communities, especially for commercial activities that entail increased traffic and noise, but the upsurge in working from home in the new post-pandemic normal calls for HOAs and condominium associations to take a prudent approach that is guided by reason. Today’s technology allows for a great deal of work to be done from home with no disruptions whatsoever to the community at large. Rather 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.

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Laura-Manning-Hudson-Gort-photo-200x300An article by firm partner Laura Manning-Hudson is featured as the “Board of Contributors” expert 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 “Signs, Signs Everywhere: It’s Time for Community Associations to Address Sign Policies,” discusses recent news reports from around the country that are indicative of an uptick in disputes within HOA communities involving homeowners’ yard signs.  Laura writes that today’s polarized political environment and social movements combined with widespread societal cabin fever caused by the pandemic have seemingly created a perfect storm for tempers to ignite over political and solidarity signs, and she offers helpful suggestions for how HOAs should respond.  Her article reads:

. . . In Macomb Township, Michigan, a couple has been quoted in a local TV report alleging they were singled out by their HOA to remove their Black Lives Matter signs while the association seemingly permitted their neighbors to post other similar signs supporting politicians and local schools.

psignsReports involving HOA disputes over BLM signs also made local TV and newspaper headlines in late July in the San Francisco bay area and New Albany, Ohio, where an HOA issued an apology to its residents after it posted a deadline for the specific removal of BLM yard signs on its social media pages.

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After months of repeated emergency orders prompting the closure of amenities for condominium associations and HOAs, it comes as no surprise that many community association stakeholders are in search for guidance related to the safe operation of their pools, fitness centers, tennis courts, social rooms and other shared amenities.  Thanks to the Community Associations Institute (CAI), the largest organization representing the interests of community associations in the world, a complimentary new guide is available to provide boards of directors and property managers with a great deal of timely and helpful information.

The new booklet, which is titled “Status Check: A Reopening Guide for Community Associations,” offers aid and support for associations contending with the challenges of reopening all their facilities.  The guidance for the common areas and amenities is organized by risk level or reopening phase, enabling them to be applied in accordance with the current conditions throughout the country.

CAI-logoThe guide and other resources in CAI’s interactive Coronavirus Resource Page also offer helpful templates that may be modified for use by individual communities.  These include:

  • A sample letter template to update residents about common areas and amenities.
  • Common area signage templates.
  • Guidelines for community association common areas, amenities and operations.

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CSantisteban-200x300An article authored by the firm’s Christyne D. Santisteban is featured as the “Board of Contributors” expert 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 “Tennis Court Argument Snowballs Into $7M Federal Discrimination Suit Against HOA,” discusses how associations must be prepared to address and resolve disputes among unit owners over shared amenities and other matters by using a set process that typically includes letters from the association’s attorney, impartial board/committee meetings and hearings, and possibly also reasonable fines and suspensions.  Otherwise, these skirmishes could snowball into potentially dangerous confrontations that may expose associations to severe legal and financial liabilities, as a recent federal lawsuit with shocking allegations of discriminatory conduct illustrates.  Her article reads:

. . . The recent suit involves allegations of horrid discriminatory conduct and statements against homeowners Jeffrey and Deborah LaGrasso at the Seven Bridges community in Delray Beach, Florida. It seeks $7 million in compensatory and punitive damages from the community’s HOA and Rachel Aboud Tannenholz, who allegedly engaged in harassing behavior that included phone calls, text messages, personal visits to the plaintiffs’ home, and discriminatory posts on Facebook. dbrlogo-300x57The suit alleges the HOA and Tannenholz violated the federal Fair Housing Act by inflicting discriminatory behavior based on the LaGrasso’s religion and intentionally causing them emotional distress.

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The new post-pandemic normal includes many changes that affect how communities operate, and a recent national survey conducted by the Foundation for Community Association Research serves as a timely reminder that Americans are overwhelmingly satisfied with their HOAs and condominium associations.  The biennial nationwide survey conducted by Zogby Analytics is aimed at providing a better understanding of the experience of homeowners who live in communities with associations.

The 2020 homeowner satisfaction survey reveals that nearly 90 percent of those who live in communities with associations rate their overall experience as either very good (40 percent), good (30 percent) or neutral (19 percent).  Nearly three-quarters of the respondents have attended board meetings, 71 percent believe their community’s rules help to protect and enhance property values, and 62 percent say they are paying the correct amount in assessments.

CAI-research-300x169The respondents noted such association benefits as cleanliness and attractiveness, maintenance-free living, neighborhood safety, and maintaining property values as being among their most important advantages.  The results for 2020 even saw an increase in satisfaction and appreciation of community association rules (four percent) and the role of the board of directors (five percent) over those of the 2018 survey.

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Many South Floridians are unfamiliar with the impact the data collected by the census can have on their communities. Though a common misconception is that the census is simply used to count the general population, the information collected is primarily used to allocate funding and resources to neighborhoods based on the population’s statistics. Besides using the information received to distribute billions in federal funds to local communities, the data collected by the census is also used to determine the number of seats each state has in the U.S. House of Representatives. At a local level, the statistics collected are used by various agencies to provide funds for education, police, medical and emergency services, roadways and transportation, as well as various other federal and state resources. It is important to note that participating in the census is required by law. Individuals can respond to the 2020 Census by mail, phone or by completing the form online by clicking here.

Census-002-300x251Should a census representative visit your community and request access to visit units or parcels of individuals that have not filled out the census questionnaire by the designated deadline, access should not be denied to such representative. Restricting access to the property or failing to provide requested information to a census enumerator who has presented proper identification can result in a $500 fine (per unit), according to 13 U.S.C. §223. A legitimate census enumerator will always provide census identification.

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AEsterasThe firm’s Awilda Esteras authored an article that is featured as the “Board of Contributors” expert 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 “Appellate Court Reverses Itself, Finds Condo Fees Are Subject to FCCPA Restrictions,” focuses on a recent unexpected decision by Florida’s Fifth District Court of Appeal that reverted from more than two decades of case law on the question of whether condominium association fees qualify as debts under the Florida Consumer Collection Practices Act.  Her article reads:

. . . The new opinion, which comes in a unanimous decision by all 11 judges of the Fifth DCA, redefines the term “consumer debt” under the FCCPA with its finding that obligations to pay condominium assessments may be considered debts under the FCCPA.

The appellate court’s decision in Williams v. Salt Springs Resort Association reversed the lower court’s ruling that dismissed the case in favor of the association and its property management company. dbr-logo-300x57In Williams, an association and property management company were sued after publicly posting a list of names of more than 100 delinquent unit owners along with the balance due by each owner. Williams, one of the owners whose name appeared on the list, filed a class action complaint against the association and the property management company asserting the public posting of “deadbeat lists” to enforce the collection of consumer debt amounted to a violation under the FCCPA.

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Our firm’s other community association attorneys and I have all seen our fair share of disputes arising from unapproved property improvements in South Florida HOA communities over the years. However, the saga involving a diamond design in a homeowner’s driveway at the Equus community just west of Boynton Beach appears to be exceptionally combative, so much so that it drew the attention of the Palm Beach Post.

According to a recent article from the newspaper, the HOA has been trying to have homeowner Barry Rosenthal remove the decorative red diamond design (see photo below) for more than three years. Both parties appear to be very deeply entrenched in their positions.

In its lawsuit, the HOA claims the driveway design “was not in conformity with other approved driveway designs throughout the community.” driveway-diamondRosenthal had it installed as part of his new driveway project in 2017 without obtaining the HOA’s prior approval, and he was subsequently fined $1,000 and lost his usage rights to the community’s amenities, which include tennis courts and a fitness center.

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Michael-Hyman-srhl-lawFirm shareholder Michael L. Hyman authored an article that is 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 “Ruling Exposes Perils of Overzealous Buyer Screenings by Community Associations,” focuses on a recent ruling illustrating how associations that go too far in their screenings of prospective new buyers and tenants could face legal consequences.  His article reads:

. . . The recent ruling ordered a Marco Island condominium association to stop its unreasonable screening practices, and the case made local headlines in the pages of the Naples Daily News.

David Mech, a prospective buyer at the Crescent Beach Condominium, sued the condominium association in December and represented himself in the case without the benefit of legal counsel. He alleged that he walked away from his $425,000 all-cash offer to purchase his dream condominium unit because he refused to comply with the associations’ request to provide his last two annual tax returns for himself and Katarina Palijusevic, who planned to invest in the unit with him.

“There’s no reason for them to know the total income for people,” he states in the newspaper article. He believed the financial screening requirement was unjustified and just “plain nosy,” so he walked away from his opportunity to acquire the Marco Island condo. “Do I really want to live in a building that has that type of board? That’s really an issue to me,” he stated.

dbr-logo-300x57The Collier County court judge ruled that the board’s blanket policy requiring new buyers to produce personal tax returns was “patently unreasonable.” The judge awarded Mech his legal costs and is yet to determine the final award. Mech claims that he lost approximately $4,000 just from his early withdrawal from his apartment lease in Irvine, California, prior to being informed of the tax return requirement.

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Community associations in Florida contending with fraudulent emotional support animal (ESA) requests may get some relief. Governor DeSantis signed SB 1084 into law on June 23, 2020.  The new law prohibits discrimination from housing providers to someone requiring an ESA, but also prohibits health care practitioners from providing information regarding a person’s need for an emotional support animal without having personal knowledge of the person’s need for the animal.

The law, which becomes effective on July 1, 2020, requires a patient to establish the need for an ESA by delivering to the housing provider supporting information from a licensed healthcare practitioner, a telehealth provider, or other similarly licensed practitioner, including an out-of-state practitioner who has provided in-person care or services to the patient on at least one occasion.  esupdog-300x234It is important to keep in mind that the in-person requirement is only for establishing the disability, not for establishing the need for an animal.  Housing providers may establish a routine method for receiving and processing ESA requests. However, they cannot require the use of any specific forms, deny a request solely because the resident did not follow their methods, or request information that discloses the diagnosis or severity of the resident’s disability.

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