Florida HOA Lawyer Blog

August 13, 2023

Firm’s Miami Herald Column: “Real Estate Counselor: Technicality Gives Homeowner a Reprieve in HOA Foreclosure Action”

The firm’s latest Miami Herald column was authored by Awilda Esteras and appears in today’s edition of the newspaper. The article, which is titled “Real Estate Counselor: Technicality Gives Homeowner a Reprieve in HOA Foreclosure Action,” focuses on the ramifications of a technical shortcoming in an HOA foreclosure action that were illustrated in a recent decision by Florida’s Second District Court of Appeal. The appellate panel found in favor of the homeowner and reversed the lower court’s foreclosure judgment due to the failure of the association and its board of directors to properly levy an individual assessment against the owner. Awilda’s article reads:

. . . The case stems from a 2019 mortgage foreclosure action filed against homeowner Tammy Desch by Deutsche Bank. The South Fork of Hillsborough County II Homeowner’s Association incurred $475 in legal fees for the filing of a required response in the matter by its attorneys, and it then sought recovery from the homeowner as an individual assessment for these costs pursuant to its own governing documents.

The debt subsequently went unpaid by Desch, and in less than one year the balance due on the account grew to nearly $1,700. In order to collect, the HOA filed a lawsuit in 2020 to foreclose its claim of lien for the unpaid assessment as prescribed under Florida law and its own governing documents. It alleged it “ha[d] made assessments against the Property” and Desch had failed to pay, and it attached a copy of its account ledger showing the initial entry for $475 plus the subsequent fees and interest.

The homeowner responded by contending the HOA had failed to identify the origin and basis of any assessment officially levied against her property in accordance with the procedural requirements of Florida law as well as its own governing documents.

July 30, 2023

Miami Herald Column: “After Surfside Condo Collapse, Group Recommends Key Condo-Safety Measures, Financial Reforms”

by Siegfried Rivera

Siegfried Rivera

The firm’s latest Miami Herald “Real Estate Counselor” column was authored by shareholder Laura Manning-Hudson and appears in today’s edition of the newspaper. The article, which is titled “After Surfside Condo Collapse, Group Recommends Key Condo-Safety Measures, Financial Reforms,” focuses on some recent major changes to the Community Associations Institute’s recommended condo-safety policies and reforms. Her article reads:

. . . CAI, which is the leading organization representing the interests of community associations, revealed that it now recommends statutorily mandating reserve studies and funding for all community associations.

For nearly 40 years, the organization’s recommended public policy called for leaving reserves funding and studies up to the individual associations, rather than mandates in state law. That began to change after Surfside when it convened three specialized task forces to explore changes to laws and best practices that could help to prevent a similar disaster.

The task forces recommended that CAI review and update its reserve studies and funding public policies, which were initially established in 1983 and last updated in 2012. The organization has now acted on that suggestion, and the changes go well beyond the call for new state mandates.

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July 27, 2023

Florida Lifts Pit Bull Ban – A New Era for Pet Owners

by L. Chere Trigg

L. Chere Trigg

On October 1, 2023, a groundbreaking legislative decision will take effect, ending the ban on pit bulls and other prohibitions in Florida that restrict dogs based upon breed, weight or size. With this new development, many community associations that previously relied on local ordinances to restrict ownership of specific dog breeds such as pit bulls will need to consider making changes to their governing documents should they wish to continue enforcing such restrictions.

Florida’s decision to no longer ban specific breeds marks a significant shift in pet ownership policies within the state. For years, pit bulls have been a breed targeted by various community associations due to perceived safety concerns, leading to their exclusion from many communities. However, this legislation disallows public housing authorities from establishing regulations that target specific breeds, weights, or sizes. It is important to note that public housing authorities may still address any welfare or safety concerns caused by attacks on a person by a domestic animal.

Before October 1, 2023, community associations that wish to maintain their prohibition of pit bulls will need to amend their governing documents to include specific language regarding specific animals or breeds. Some associations already have such restrictions in place, but many rely on local ordinances to enforce dog breed bans, which will no longer be valid once the state law comes into effect.

July 24, 2023

Community Associations Institute Releases Updated Reserve Study Standards

by Laura Manning-Hudson

Laura Manning-Hudson

With the new state requirements for the funding of reserves taking effect in the next few years for many Florida condominiums, association boards of directors and property managers across the state are beginning their planning process by contracting for and implementing a structural reserve study. Such studies, which should be conducted by highly experienced and qualified specialists, closely examine the current physical and financial state of communities as well as the maintenance, repair and replacement costs of all their elements to provide specific recommendations for the long-term funding of reserves.

Given the increased focus on reserves in Florida and many other states, the Community Associations Institute released updated Reserve Study Standards in May to provide communities with an improved framework for effective planning. The organization, which is the leading voice for the associations industry, has been intensely focused on reserves and other condominium-safety initiatives for the last two years since the tragic partial collapse of Champlain Towers South that claimed 98 lives.

For the most part, the changes in the new standards emphasize structural maintenance and inspections. They are the result of the work of a task force that began reviewing the standards more than one year ago.

July 16, 2023

Miami Herald Column: “Real Estate Counselor: Neighbors, HOA Dispute Over New Fence Becomes a Legal Saga”

by Siegfried Rivera

Siegfried Rivera

The firm’s latest Miami Herald column was authored by partner Shari Wald Garrett and appears in today’s edition of the newspaper. The article, which is titled “Real Estate Counselor: Neighbors, HOA Dispute Over New Fence Becomes a Legal Saga,” focuses on a recent ruling by Florida’s Second District Court of Appeal over a case that escalated from a minor fence dispute into a major courtroom quarrel with an appeal and reversal. Shari writes that matter illustrates the potential ramifications of discrepancies and confusion in homeowners associations’ reviews and approvals of owners’ submissions for planned architectural changes to their properties. Her article reads:

. . . The saga all began when homeowner Craiger Scheuer complained to the board of directors of the HOA for The Cottages at San Lorenzo, in Bradenton about his neighbors’ new fence. Neighbors Luis Antonio Beckett-Morales and Sharon Talamantes-Santiago had submitted plans for their new fence to the association and received its prior architectural review and approval as required, but unfortunately there was an issue.

The application included two conflicting plans: one called for a fence that would obstruct the view from Scheuer’s property of a stormwater retaining pond directly behind their home but not abutting his, and the other was for a fence that retained his view. The HOA nevertheless approved the application, but it importantly provided that the approval was subject to the written condition that the fence follow all the architectural review committee guidelines for the specific lot type.

When Scheuer complained that the fence installed by Morales and Santiago obstructed his view of the pond, the association ultimately agreed and covered the cost of modifying the fence. However, the remodeled fence also obstructed Scheuer’s view, so he sued his neighbors and the association.

July 9, 2023

Miami Herald Real Estate Counselor Column: “Takeaways from Boca HOA’s Suit Against Owner Over Unapproved Fence, Paint”

by Siegfried Rivera

Siegfried Rivera

The firm’s latest Miami Herald “Real Estate Counselor” column was authored by shareholder L. Chere Trigg and appears in today’s edition of the newspaper. The article, which is titled “Takeaways from Boca HOA’s Suit Against Owner Over Unapproved Fence, Paint,” focuses on a recent case that illustrates the significance of pursuing violations and enforcement matters as reasonably, uniformly and transparently as possible for community associations. Her article reads:

. . . By their very nature, violations and enforcement matters can be very contentious and therefore difficult to manage, making them a challenge for directors and property managers. The associations that do it best are typically those that make effective use of independent committees, open hearings and published guidelines.

Among the most common disputes are those involving unapproved improvements and alterations to properties in communities that require a board’s or committee’s prior review and approval in order to maintain aesthetic standards. One such example involves a lawsuit that was recently filed by the association for the Fieldbrook Estates community in Boca Raton, Florida, against one of its homeowners over the unauthorized removal and installation of a fence and the painting of their home in an unapproved color.

The association’s lawsuit, which was filed in the circuit court for Palm Beach County on May 9, states the dispute began this February when Umit Yigit, the homeowner, and his tenant Michael Trussell painted the exterior of their home a different color without first applying for approval from the community’s architectural review committee. Matters then escalated in April when the owner and tenant removed a safety fence enclosing their swimming pool, again without seeking prior approval from the association’s architectural committee nor from Palm Beach County, which requires swimming pool safety fences. As such, the unapproved removal of the fence not only violated the association’s governing documents and county regulations, but also posed a safety risk for the community.

June 26, 2023

Countdown to Compliance: Important Deadlines for Florida Condominiums

by Nicole R. Kurtz

Nicole R. Kurtz

For condominium associations in Florida, a range of legal and regulatory obligations govern their operations and help to ensure the well-being of residents and the preservation of their property values. Staying current with these requirements is paramount for condominium boards and managers as they navigate the complex compliance landscape. As we approach the midpoint of 2023, several significant deadlines loom on the horizon, demanding attention and proactive action from condominium communities statewide.

Two-Way Radio Communication Enhancement Systems:
By January 1, 2025, all high-rise buildings, as defined by the Florida Building Code, are required to comply with minimum radio strength for fire department communications and two-way radio communication enhancement systems as required by the Florida Fire Prevention Code. Existing high-rises that are not yet in compliance with the requirements must apply for an appropriate permit for the required installation with the local government agency having jurisdiction by January 1, 2024, and they must demonstrate that the building will become compliant by the January 1, 2025 deadline.

Milestone Inspection:
An owner, or owners, of a building that is three stories or more in height, as determined by the Florida Building Code, and that is subject in whole or in part to the condominium or cooperative form of ownership must have a milestone inspection performed by December 31 of the year in which the building reaches 30 years of age, based on the date the certificate of occupancy for the building was issued, and every 10 years thereafter.

If a building reaches 30 years of age before July 1, 2022, the building’s initial milestone inspection must be performed by December 31, 2024.

If a building reaches 30 years of age on or after July 1, 2022, and before December 31, 2024, the building’s initial milestone inspection must be performed before December 31, 2025.

June 23, 2023

Nuisance New Residents at Jacksonville HOA Community: Nesting Canadian Geese

by Laura Manning-Hudson

Laura Manning-Hudson

Our firm’s other South Florida community association attorneys and I have written about various wildlife incursions in Florida HOA and condominium association communities over the years in this blog. We’ve covered community associations contending with alligators, crocodiles, wild hogs, vultures, and other destructive and potentially dangerous wildlife, but a recent report by Fox 30 Action News in Jacksonville is a reminder that not all nuisance animals pose an immediate safety risk requiring fast attention by associations and their boards of directors.

The station’s report focuses on the issues that the Ironwood Village HOA is currently having with a flock of wild Canadian geese that have decided to make the Jacksonville community its permanent home and nesting grounds. Residents have complained to the association and on the community’s Facebook page about the geese eating their lawns and flowers, and creating a nuisance with their droppings and honking.

However, not all are in agreement as to how it should respond.

Canadian-Geese-300x200 Community resident Andy Ghelerter tells the station’s reporter that for him the geese have only presented a minor traffic issue when they are slowly waddling across the streets. The story also includes an email from the HOA to one of the residents indicating there is not much it can do, as the geese are a protected species and a majority of the HOA’s members voted against destroying the eggs and nests. The association has also instructed all the homeowners and residents not to feed the geese, calling them an “environmental hazard to the area.”

June 18, 2023

Miami Herald Article on Investors Taking Over Condo Boards Features Insights from Roberto Blanch

by Siegfried Rivera

Siegfried Rivera

Firm shareholder Roberto C. Blanch provides vital input and insight into the issue of bulk buyer investors taking control of the condominium boards for aging local enclaves in a Miami Herald article on the topic in today’s edition of the newspaper. The article reads:

. . .The situation at the two-story building at 2033 Calais Drive is, in some ways, a reflection of forces resulting in steep costs for many South Florida condo owners. Those costs include inflation, ballooning insurance prices and a condo safety law that was enacted after the deadly Champlain Towers South collapse in Surfside and will require associations to maintain reserves for structural repairs by 2025.

Properties such as Fiorda’s 1959 building have become red meat for investors in North Beach, a gentrifying neighborhood full of aging coastal structures and one of the last Miami Beach slivers that some middle-class and working-class families can afford.

But the substantial, sudden cost increases at 2033 Calais Drive also reflect the tactic of investors taking over condo boards and making spending decisions with limited input from other owners who must also foot the bills. Condo associations in Florida have broad latitude to make financial decisions under a “business judgment rule” that protects directors from liability as long as they can show a reasonable basis for their spending, said Roberto Blanch, a South Florida condo lawyer.

“There is this gray area, I think — let’s call it this wiggle room — that might be enough to let them get away with some unsubstantiated or some uncorroborated increases,” Blanch said. “The board can always get away with saying, ‘We’re just spitballing here.’”

June 18, 2023

Miami Herald Real Estate Counselor Column: “Condo Owners Concerned by Rising Association Budgets Make for Ideal Committee Members”

by Siegfried Rivera

Siegfried Rivera

The firm’s latest Miami Herald real estate column was authored by Michael L. Hyman and appears in today’s edition of the newspaper. The article, which is titled “Real Estate Counselor: Condo Owners Concerned by Rising Association Budgets Make for Ideal Committee Members,” focuses on the issues that are arising at Florida condominium associations due to the new milestone inspections and reserves requirements that lie in store as a result of last year’s condo-safety reforms. Budgetary and assessments increases are becoming necessary for most communities, and naturally this is triggering questions from impacted and concerned unit owners. Michael’s article reads:

For condominium association boards of directors, the manner in which they react and respond to any growing scrutiny from worried owners will be of pivotal importance.

In many communities, the best approach will be to embrace the heightened level of interest and participation in board meetings and matters, and to respond by inviting and recruiting the most ardent and capable owners to do their part by joining new or existing committees.

By enabling the most concerned and involved owners to participate in the planning process for associations’ coming new reserves and inspections requirements, boards of directors can demonstrate their commitment to full transparency and cooperation with their fellow unit owners. It sends the message that the community is committed to an all hands on deck approach to addressing and overcoming the challenges that lie ahead.

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