alterations in condominium associations

May 3, 2022

Op-Ed Article in Today’s Miami Herald: “After Surfside, Federal Condo-Safety Legislation Deserves Bi-Partisan Support”

by Siegfried Rivera

Siegfried Rivera

The firm’s Gary M. Mars was the first South Florida community association attorney to weigh in on the recently proposed SAFER in Condos Act in a major local media outlet with his article in today’s op-ed page of the Miami Herald. The article, which is titled “After Surfside, Federal Condo-Safety Legislation Deserves Bi-Partisan Support,” focuses on the SAFER in Condos Act that was recently introduced in the U.S. Congress by Florida representatives. It notes that questions regarding condominium safety have been in the spotlight since the horrific Champlain Towers tragedy that claimed 98 lives, and changes failed to pass in the state legislature but have been enacted at the federal level from lenders and also at the local level from counties and municipalities. Gary’s article reads:

. . . Part of the reason the state legislature could not agree on a set of reforms was because the new funding requirements for structural repairs would have been too much for the unit owners of many condominium communities to bear. Plus, financing options for both condominium associations and their unit owners for such extremely costly property restorations were getting worse by the day, as interest rates have been on the rise and are predicted to continue climbing.

For a problem of this magnitude and national scope, only the federal government has the capability and resources to truly make an impact. Its first effort at addressing it was proposed on April 18 by U.S. Reps. Charlie Crist (D-St. Petersburg) and Debbie Wasserman Schultz (D-Broward, Miami-Dade) in the form of the Securing Access to Finance Exterior Repairs (SAFER) in Condos Act of 2022. The legislation would allow condominium owners to finance critical building repairs with loans backed by the Federal Housing Administration (FHA). Unit owners would be able to combine a special assessment from their association for structural repairs with their existing mortgage debt into a new, 30-year loan insured under the FHA home rehabilitation program.

For those who do not have a mortgage or would prefer to leave it as is and continue to pay it off, the legislation also grants owners access to the FHA Property Improvement Program to finance such an assessment over a 20-year term.

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February 27, 2022

Miami Herald Real Estate Counselor Column by Gary Mars: “Electric Vehicle Chargers At or Near Top of Many Condo Community Wish Lists”

by Siegfried Rivera

Siegfried Rivera

The firm’s latest “Real Estate Counselor” column in the Miami Herald authored by Gary M. Mars is featured in today’s Neighbors section and titled “Electric Vehicle Chargers At or Near Top of Many Condo Community Wish Lists.” The article focuses on a state law that was ratified last year to facilitate the addition of shared electric vehicle charging stations as an amenity for the use of owners and guests in Florida condominium communities. It reads:

. . . For condominium dwellers, the lack of access to electrical charging in congested parking garages with assigned spaces initially proved to be a significant challenge for those with EVs. Wisely, the Florida Legislature passed several new laws in recent years to address the installation of charging stations in condominiums, and the law that went into effect last July to facilitate the deployment of shared community EV charging stations may be the most important yet.

The law clarified that the installation of shared EV charging stations for a community’s owners and guests can be ratified via a simple vote of a condominium association’s board of directors, and it would not require a vote and approval of all the unit owners as is needed for projects involving what are called “material alterations.” The prior new charging-station laws addressed installations to be paid for and used by individual unit owners at their assigned parking spaces.

The problem with that model is that very often there is inadequate electrical infrastructure to install such charging stations without it becoming exorbitantly expensive. EV charging requires heavy-duty electrical cables and equipment that are capable of handling the high-capacity loads necessary to fully charge vehicles in just a few hours, as opposed to 12 hours or more using standard 110-volt outlets. Plus, the electrical consumption needs to be metered and billed to the owner, also requiring additional equipment and expenses.

September 22, 2021

Community Associations Institute Considering Reforms Following Surfside Collapse

by Roberto C. Blanch

Roberto C. Blanch

The Community Associations Institute, the leading organization representing the interests of condominium associations and HOAs, is considering several policy reform recommendations on matters such as building inspections as well as reserve studies and funding in the wake of the devastating tragedy of the Champlain Towers South collapse in Surfside, Fla.

According to a recent post in its Ungated blog at blog.caionline.org, the organization’s Government and Public Affairs Committee convened a special meeting recently to hear the recommendations from three task forces on new public policy reforms as well as best practices and guidance for local, state and federal legislators.

The three task forces focused on building inspections and maintenance; reserve study and funding plans; and insurance and risk management. They have recommended that the committee focus on reforms such as having developers provide a preventive maintenance schedule for all components that are the responsibility of the community association, not just the components included in the reserve study. They also recommended baseline inspections and regular inspections based on specific intervals, the protocols for which can be found in the American Society of Civil Engineers’ Guideline for Structural Condition Assessment of Existing Buildings, and disclosures of the findings to homeowners, residents and local governments.

April 19, 2021

Important Considerations for Community Associations’ Use of Security Cameras

by Roberto C. Blanch

Roberto C. Blanch

Security cameras in community associations, especially in sprawling HOA communities with gated entries and considerable common areas, help to provide residents and guests with an added measure of peace of mind. However, there are important privacy considerations for associations seeking to install surveillance systems, and there are also questions about whether these systems may constitute material alterations that must be approved by a vote of an association’s membership.

In general, community associations are allowed to install and utilize security cameras to monitor their common areas. The most important limitation in their use is that the cameras should not be positioned to view areas in which residents may reasonably expect a level privacy, such as restrooms, locker rooms, and private dwellings or backyards.

Another important consideration is whether the deployment of security camera systems constitute a material alteration which may require a vote of the association’s voting interest. Decisions over this issue in arbitrations before the State of Florida’s Division of Condominiums, Timeshares and Mobile Homes have held that security camera installations may be considered material alterations. Therefore, unless an association’s specific governing documents provide otherwise, they may first have to be approved by a vote of the owners, which in some cases may be at least 75 percent of the membership. Some association governing documents require less than the statutory 75 percent threshold to approve a material alteration, and some only require membership approval when the cost of the alteration exceeds a specific amount.

January 26, 2021

Article by Gary Mars in Today’s Daily Business Review: “Questions Revealed by Ruling Over W Hotel Amenities Require Legislative Fix”

by Siegfried Rivera

Siegfried Rivera

An article authored by the firm’s Gary M. Mars was 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 “Questions Revealed by Ruling Over W Hotel Amenities Require Legislative Fix,” focuses on a recent ruling by the state’s Third District Court of Appeal that calls into question the legal framework for many Florida condo-hotels. The appellate panel ruled in favor of an Icon Brickell condominium owner’s claim that the property’s declaration broke state law by giving ownership and control of shared facilities to the owner of the W Miami Hotel. Gary writes that the decision signals the need for Florida’s lawmakers to consider legislative amendments to the state’s condominium laws specifically addressing the authority over common elements at condo-hotel properties. His article reads:

. . . The 50-story Icon Brickell Tower 3 includes the 148-room W Miami, formerly the Viceroy Hotel, in addition to 372 condominium residences. New Media Consulting LLC, the owner of one of the units in the building, filed suit in Miami-Dade Circuit Court in 2018 against the building’s condo association alleging the property’s declaration of condominium gave the owner of the W Miami Hotel too much authority in violation of the Florida Condominium Act.

The plaintiff prevailed in the trial court via a summary judgment, which concurred that parts of the property’s declaration broke state law by giving ownership and control of the shared facilities to the hotel owner. The ruling essentially ordered the association to amend its declaration in accordance with state law, notwithstanding the fact that changing condominiums’ governing documents typically requires prior approval by a daunting super majority (usually 2/3 or more) of associations’ entire voting membership.

April 22, 2019

Associations Take Heed: Pickleball Creates a Real Racket at South Florida Community

by Roberto C. Blanch

Roberto C. Blanch

A recent report by Channel 7 News (WSVN-Fox) in South Florida shined a spotlight on a new trend that is beginning to cause noise disruptions at some of the area’s condominium communities. It is called pickleball, and the sport is becoming especially popular for 55-and-older retirement communities. While the decision of the association’s board to accommodate the sport seems innocent, it appears to have triggered some unintended consequences that other community associations should bear in mind.

First created in 1965, pickleball is a paddle sport for all ages and skill levels that combines many elements of tennis, badminton and ping-pong. It is played both as singles and doubles on a badminton-size court using a slightly modified tennis net, paddles and a plastic ball with holes.

The station’s report, which states that the sport is becoming very popular, chronicles the issues that are arising from the noise that pickleball is creating at the Wynmoor in Coconut Creek retirement community in Broward County. Two of the community’s tennis courts were converted into eight pickleball courts, which allow for up to 32 people to play at the same time.

Linda Waldman, the owner of a unit near the courts, states: “It’s a very noisy game, unfortunately . . . there is a ‘pong’ not also from the racket, but also when it hits the ground. Ponging and screaming. It’s a very enthusiastic game. The people love it.”

September 10, 2018

Fight Over $20,000 Special Assessment Illustrates Worst-Case Scenario for Community Association Financial Planning

by Roberto C. Blanch

Roberto C. Blanch

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.”

She 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.