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Articles Posted in Amenities and Common Elements

Jonathan-Mofsky-2021-2-200x300The firm’s latest “Real Estate Counselor” column in today’s Miami Herald is authored by partner Jonathan M. Mofsky and titled “Ruling Shows Pitfalls of Associations Enacting Changes Without Required Votes.”  It focuses on a recent ruling by Florida’s Fifth District Court of Appeal that illustrates the potential consequences of associations that undergo alterations to their amenities and enact rule changes without the required vote and approval of their unit owners.  Jonathan’s article reads:

. . . The case initially stems from a filing for mandatory non-binding arbitration with the Division of Florida Condominiums, Timeshares and Mobile Homes under the Department of Business and Professional Regulation. Michelle and Kevin Flint, owners of several units at the Lexington Place condominium in Orlando, objected to the condo association’s elimination of a common element dog park and a court for wallyball (i.e., a sport similar to volleyball played on a racquetball court). They alleged the association performed these material alterations without a vote and majority approval of the unit owners in violation of its own declaration of condominium.

The Flints also challenged a board-enacted rule that prevented tenants from maintaining pets at the condominium, which they claimed violated the pet restrictions contained in the declaration.

JMofsky-Herald-clip-for-blog-7-31-22-103x300The couple prevailed in these proceedings on both issues. However, the association chose to escalate the matter by filing a lawsuit in Orange County circuit court based on the same arguments originally presented in arbitration.

The circuit court also ruled in favor of the Flints and affirmed the arbitrator’s decision. After considering the different provisions in the association’s declaration as well as the arguments of the parties, the court found that because the association’s declaration required approval by a majority vote of the unit owners prior to performing the alterations, the association’s board of directors alone lacked the authority to eliminate the community’s dog park and wallyball court.

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In South Florida, the pool is an extremely popular and widely used community amenity. While community pools can be a great source of joy and relaxation for residents and their guests, they can also sometimes become a focal point of strife and confrontations.

Given the propensity for certain issues to arise, and in hopes of preventing them, associations are well advised to establish and enforce pool-use rules for their communities. Such rules, which should be comprehensive and cover a wide array of use and operations matters related to the pool and the pool deck including opening/closing times, guest capacity, noise, horseplay, swimwear, diving, smoking, drink/food, and more, are truly essential for associations to maintain order and diminish potential legal liabilities.

With the help of qualified community association legal counsel, who will always begin by checking an association’s governing documents to ensure it follows the prescribed process for adopting enforceable pool rules, associations should develop fair and reasonable rules that are designed to promote the efficient and safe use of the amenity. comm-pool-300x200The goals and purposes behind every rule should be clearly evident from its very nature, and any changes and additions to the rules and their enforcement should be discussed with both experienced legal counsel and property management prior to implementation.

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RobertoBlanch_8016-200x300The firm’s latest “Real Estate Counselor” column, which is featured in the Neighbors section of today’s Miami Herald, was authored by shareholder Roberto C. Blanch and titled “Water-leak Suit at Jacksonville Condo Makes Local Headlines, Reveals Telling Lessons.” Roberto’s article focuses on a recent report that aired on both the ABC and NBC affiliates in Jacksonville that included footage of a severe water leak filmed by a condominium tenant. The owner of the unit terminated the tenant’s lease, and he eventually filed a lawsuit against the association after it allegedly declined coverage for extensive water damage including warped floors of costly imported wood, destroyed light fixtures and dangerous mold.  The column reads:

. . . The news report, which can be viewed at tinyurl.com/3un2ktam, illustrates the significant impacts that water leaks can have in condominiums. It is important to note that not all water loss events in condominiums are the result of improper maintenance by the association, as some may result from clogged sinks and toilets, or other owner negligence and causes.

Condominium associations and their property management must periodically inspect and repair their buildings’ common-element pipes and other components. Any leaks that may arise should be quickly and proactively investigated to determine their source and prevent them from causing any further property damage or possible injuries to residents. Miami-Herald-3-13-22-print-page-1-297x300Regardless of a leak’s cause or source,  an association’s management and directors have an obligation to address and potentially eliminate it.

Associations should work with qualified insurance professionals to maintain adequate coverage against the types of damages that are likely to arise from leaks. They should also have a plan of  action in place for the handling of water leaks, including pre-determined arrangements for their immediate remediation and a detailed process for reporting such incidents to the association’s insurance carrier.

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Gary-Mars-2021-2-200x300The 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.

Herald-GMars-2-27-22-print-clip-for-blog-101x300The 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.

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The news of the spike in Covid cases in Florida and elsewhere fueled by the highly contagious Delta variant is causing many employers and organizations to revisit the restrictions and precautions put in place at the height of the pandemic. Community associations in Florida have been no different, as many are now returning to mask mandates and social distancing even for vaccinated individuals in accordance with the latest guidance from the Centers for Disease Control.

After the CDC first announced several weeks ago that vaccinated individuals could safely stop wearing masks, community associations in Florida and across the country began to ease mask mandates and re-open their amenities with little or no capacity restrictions. While life appeared to be returning to normal, especially for those who received the vaccines, the latest spike in Covid cases caused by the highly transmissible Delta strain illustrates that we are not completely out of the woods yet.

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Community associations, just as all other private and public sector organizations in which people congregate, are taking notice of the renewed calls by the CDC and other sources to return to masking and social distancing. This is especially true for areas with high transmission rates such as Florida, which has lead the country in new Covid cases.

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EvonneAndris-srhl-law-200x300An article authored by firm partner Evonne Andris 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 “Considerations for Community Associations Reopening Their Amenities,” notes that community associations have generally done an admirable job of implementing and maintaining measures aimed at preventing the spread of COVID-19 among their residents and staff.  Evonne writes that with the new vaccines rolling out across the country and the entire world, associations are now reassessing their options regarding the use of their amenities.  Her article reads:

. . .While the vaccines hold the promise of moving toward herd immunity, that remains to be months away based on the expected supply and vaccination levels. Also, it remains unclear whether vaccinated individuals may be able to become carriers and spreaders, so masking and social distancing are likely to remain the generally accepted protocols for anywhere people congregate and interact.

Therefore, for the time being, community associations would be well advised to remember that most insurance policies do not cover virus-related claims, and there is currently no federal or state law that shields associations from litigation for alleged on-site virus infections.

dbr-logo-300x57While infection-based litigation is a greater concern for businesses in the health care sector, Florida lawmakers are now considering a bill that would create COVID-19 liability protections for the state’s businesses and nonprofit organizations, including community associations. The proposed bill (House Bill 7) provides several COVID-related liability protections for businesses, educational institutions, government entities, religious organizations and other entities.

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GaryMars-200x300An 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.

dbr-logo-300x57The 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.

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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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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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The coronavirus pandemic has created a lot of uncertainty for community associations throughout Florida, especially concerning meetings and amenity use.  Management professionals and board members are left struggling between protecting their residents by taking measures to limit the spread of the virus and continuing to conduct business as usual.

We share your concerns about the COVID-19 outbreak and the impact that it may have on our community. We urge that everyone continues to turn to the CDC and other qualified health professionals as their primary source of information and guidance. As we navigate these unchartered waters together, we ask that our clients stay calm and take rational courses of action to safeguard their communities and addressing situations properly while protecting their association from a potential claim.

As the CDC continues to encourage “social distancing,” many associations are left wondering whether or not they should be moving forward with duly scheduled meetings. Board members and property managers should evaluate the importance of the action items being discussed or voted upon before making any determinations on cancellations. Boards that are concerned about having in-person meetings should consider holding virtual meetings in conjunction with or in place of in-person gatherings.

Social gatherings in clubhouses and recreational facilities are also a cause of concern. We discourage clients from limiting the number of guests that residents can invite or trying to impose intrusive policies such as checking temperatures prior to allowing entry to the community. When in doubt, contact association counsel for a legal opinion.

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