Articles Posted in Amenities and Common Elements

At the start of summer, associations should evaluate their pool rules and procedures in addition to conducting all of the necessary inspections of their pools, spas and related equipment.

With the help of qualified professionals, the inspections should include all pools and pool equipment as well as the surrounding amenities, including gates, fences, signs, locker rooms, etc.

Association pool rules should focus on health and safety, and should avoid focusing on classes of protected persons, particularly families with children.  Making the activities of children the focus of prohibitory rules can substantially increase the potential that an association will receive a complaint alleging discriminatory conduct under federal, state and local fair housing laws.  Even prohibiting something as seemingly innocuous as “pool toys” could be deemed discriminatory, if directed specifically at children, rather than at all persons.

Likewise, unless your community avails itself of the Housing for Older Persons exemption to the anti-discrimination provisions of the Fair Housing Amendments Act of 1988, designating “adults only” pools or use times may give rise to FHA violations.  Furthermore, some courts have found that not permitting children access to pools and other amenities unless accompanied by parents could also give rise to FHA violations.

pool-rulesSome of the most common safety-related rules include:

  • No running.
  • No glass containers.
  • No diving in shallow areas.
  • No pushing, horseplay, roughhousing, or dunking.
  • No smoking and/or tobacco products in the pool area.

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In 2010, at the height of the recent foreclosure crisis, community associations in Florida gained an effective tool to aid them in their efforts to collect upon delinquent assessments.  It was at that time that the legislature amended Florida law to authorize community associations to suspend the rights of unit owners and their tenants to use portions of the community’s common elements and amenities if the owner became delinquent by more than 90 days in their obligation to pay association monetary obligations, including assessments.  Currently, the law also extends the association’s right to suspend such use rights in the event that the owner or their tenants should fail to comply with the association’s governing documents or rules.

Prior to then, associations had few practical remedies at their disposal to address violations of rules.  For instance, associations had the options of filing costly and lengthy lawsuits or arbitration actions, or imposing nominal fines.  As for collection of delinquent assessments, associations’ options were limited to placing liens on the homes or units owned by delinquent owners – a remedy with limited effectiveness during the foreclosure crisis due to the statutory safe harbor protections benefiting lenders in Florida.

tenrightHowever, since its implementation, some associations have found that suspending owner and tenants’ rights to use common elements or facilities may be an effective measure for contending with delinquencies as well as violations of rules and other restrictions.

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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.

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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.

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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.

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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 sbonilla@srhl-law.com.

 

Maintaining the common elements and areas is one of the primary functions and responsibilities of community associations.  Last year’s ruling by the Seventh Judicial Circuit Court’s Appellate Division illustrates the potential consequences that may arise in the event an association does not adequately address complaints by unit owners regarding nuisances resulting from the improper maintenance of the common elements.

In the case of Harbor View Daytona Condominium Association v. Katherine Strachan and John F. Strachan, the Strachans had complained to the association for several years of drainage back-flow plumbing problems causing black, soapy water to back up into the toilets, showers and sinks of their first-floor unit.

One of the plumbers who performed work at the condominium building during its original construction testified in depositions that when Harbor View converted from rental apartments to a condominium, washing machines were added to the individual units.  While most of these washing machines connect to a drainpipe dedicated exclusively to them, the washing machines on the eighth floor penthouse level drain into pipes to which kitchen sinks from lower units are also connected.

Harbor View Condominium

In this particular case, the washing machine from unit 808 is the only one that drains into the kitchen sink line that serves the Strachans’ unit.  According to the plumber’s testimony, Harbor View’s plumbing system was not designed to accommodate new high-efficiency washing machines that discharge water at a higher rate of speed than older machines, and in his opinion, unit 808’s high-efficiency washing machine is causing the plumbing problem.

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MichaelChapnicksrhl-law.jpgFirm partner Michael E. Chapnick wrote an article that appeared in today’s edition of the Daily Business Review, South Florida’s only business daily and official court newspaper, about the recent decision by the Second District Court of Appeal in the case of John and Annmarie Amelio v. Marilyn Pines Unit II Condominium Association. His article reads:

The appellate ruling . . . reversed the trial court’s decision to deny a mandatory injunction against the association. The Amelios filed suit for a mandatory injunction and damages against the association due to its failure to adequately address and resolve the problems caused by moisture seeping through the slab on which their unit sits.

The couple first noticed the excessive moisture in their residence in 2010 when it began to cause water damage to the unit and its contents. The association responded by bringing in a leak detection service, which determined that there was excessive moisture in the slab not caused by a leak.

The association retained an engineering firm in March 2011 to inspect the slab, and the firm recommended the installation of a moisture barrier over the slab and an exterior drainage system. It then took the association until December 2011 to hire a different engineering firm for the design and installation of the drainage system, which was not completed until more than a year later in early 2013. However, high levels of water intrusion and moisture continued to plague the unit.

The association retained the original engineering firm, which again recommended a moisture barrier, and it contracted with another company for the addition of the moisture barrier. Unfortunately, the barrier was not installed in accordance with the engineering firm’s specifications, and the concrete slab may have been too soft and powdery for it to be effective. The Amelios’ residence continued to be damaged by moisture intrusion, and it eventually became uninhabitable as the association refused to take any further action.

Michael’s article concludes:

The court found the requirement of irreparable harm satisfied by finding a violation of the Condominium Act and the condominium documents, but it went further and found that the irreparable harm was evidenced by the excessive moisture in the unit, the inability of the association to remedy the situation and the fact that the association had the exclusive duty to make repairs to the slab.

The frequently more difficult element to establish is that of having no adequate remedy at law. Citing Hiles v. Auto Bahn Fed’n., (Fla. 4th DCA 1986), the court stated, “If monetary damages would fully compensate a loss, then this element is not established.”

In reversing the denial of the request for injunctive relief, the appellate panel found that because the association had the exclusive right to remedy the problem and because until it did so the unit would continue to be damaged and uninhabitable, monetary damages would be inadequate to fully compensate the Amelios. Therefore, the unit owners had no adequate relief at law.

The association in this case had been advised from the onset of the problems with the slab in 2010 by its own legal counsel that it was responsible for the maintenance and repair of this component of the property. However, it failed to adequately rectify the problem, and now it will be forced to take immediate actions under the terms of the injunction while also facing the prospect of significant monetary damages to the Amelios.

Our firm congratulates Michael for sharing his insight on this new appellate decision with the readers of the Daily Business Review. Click here to read his complete article in the newspaper’s website (registration required).

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Our firm’s other community association attorneys and I are often asked by condominium association board members about the rights of tenants who are renting units in a condominium to use the common elements – as well as their ability to participate and vote in meetings and elections.

The Condominium Act provides that tenants who are leasing units in communities “shall have all use rights in the association property and those common elements otherwise readily available for use generally by unit owners.” This means that associations must allow renters to have the same use rights as unit owners to the pool, fitness center, clubhouse, tennis court, etc. Renters may also use the parking spaces designated for their unit.

For unit owners who are leasing their residences, the law also provides that they “shall not have such rights except as a guest, unless such rights are waived in writing by the tenant.” The law further provides: “The association shall have the right to adopt rules to prohibit dual usage by a unit owner and a tenant of association property and common elements otherwise readily available for use generally by unit owners.” tenright.jpg This means that owners who rent out their units may not also come by to swim in the pool whenever they want!

With regard to association meetings and voting, tenants do not typically have the right to attend meetings because they are not owners, however, tenants who are conferred with a Power of Attorney by their unit owners may attend and speak at the association meetings. Voting rights and requirements for board membership are generally document specific and can be found in the association’s bylaws.

Another issue that often arises is whether condominiums can prohibit tenants from having pets even if the governing documents allow unit owners to have pets. The issue turns on the exact language in an association’s governing documents. Many board members are surprised to learn that they may adopt rules that restrict tenants from having pets based on the language in their recorded documents – but this is not always the case. Many association documents require a unit owner vote to amend the documents in order to restrict tenants from having pets.

Finally, if a tenant or their landlord/unit owner violates the association’s rules and regulations or other governing documents, the Condominium Act has empowered the association to restrict the tenant’s ability to use the common elements. This also applies to the tenants of unit owners who become more than 90 days delinquent in the payment of their association dues.

With so many investor-owned units in South Florida condominium communities, significant percentages of tenants under short and long-term leases are likely to be a permanent characteristic. Associations should bear in mind that laws do exist to protect tenants’ rights in order to help ensure that associations avoid the possibility of unforeseen legal liabilities.