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Articles Posted in Amenities and Common Elements

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.

pballThe 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.”

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MTobacksrhl-law2-200x300The firm’s Michael Toback authored an article that appeared as the featured “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 “Court Strikes Down HOA’s Rule Banning Personal Trainer From Fitness Center,” focuses on the takeaways from a recent appellate ruling involving association bans of guests from amenities and common areas.  The article reads:

Is a personal trainer in a fitness center like a call girl sitting at a clubhouse bar? This comparison was drawn by the trial court in its decision to grant summary judgment in favor of a homeowner’s association as to whether a personal trainer is an invitee or a licensee. However, the Fourth District Court of Appeal reversed the decision, concluding that neither the analogy nor the analysis was properly applied to the facts of the case.

The Fourth DCA’s recent ruling in Charterhouse Associates v. Valencia Reserve Homeowners Association brings an added measure of clarity to the proper test for courts to apply when determining who may be classified as a licensee by associations.

dbr-logo-300x57The residents of a property owned by Charterhouse within the Boynton Beach, Florida community paid and authorized a personal trainer to lead their workouts in the community fitness center. The gym is one of the amenities available for use by owners, family members, guests, invitees and tenants according to Valencia Reserve’s declaration. When the association later entered into a contract with a different vendor to be the exclusive provider of personal training services in the fitness center, it banned the residents’ trainer from the facility.

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Michael-Hyman-srhl-lawThe firm’s Michael L. Hyman authored an article that appeared 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 “$7.5M Verdict Against Condo Association Should Have Been Prevented,” discusses the multi-million dollar verdict in a case involving a hot tub accident at a St. Petersburg, Florida, condominium and the potential ramifications that can result when any defects in community amenities are not properly addressed.  Michael’s article reads:

In 2008, Ehab Mina was about to step into the hot tub at the Boca Ciega Resort & Marina Condominium when he became startled to see that it was partially drained. The problem in the hot tub caused the 44-year-old to slip, and he badly injured his right shoulder and spine.

Mina required multiple surgeries, and he was ultimately forced to sell his boat-building business as a result of his injuries. He filed suit against the association and its property management company, Condos by Sirata Inc., alleging that the hot tub should have had a posted warning and adequate lighting in the evening hours.

bciega-300x206The attorneys for the condominium association responded by arguing that the half-empty hot tub was an obvious condition, but the jury found the association and its management company to be jointly liable.  It awarded a $7.56 million verdict to Mina.

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For many Florida residents, the appeal of living in condominium and homeowners’ associations is partly due to the many types of shared amenities and recreational facilities that these communities provide and maintain for the enjoyment of all residents and their guests.  Swimming pools, tennis courts, playgrounds, fitness centers, and social rooms are only a few examples of the common elements or areas made available in community associations to enhance the residents’ quality of life.

While these amenities provide significant benefits, they also come with important responsibilities for the association with respect to maintenance and upkeep.  These maintenance responsibilities must be taken seriously, as severe injuries from a lack of proper maintenance can occur and may expose an association to considerable liability.

One of the most telling examples of the potential ramifications of improper maintenance of recreational amenities came in the $20 million verdict that a Las Vegas jury reached earlier this year after a teenager suffered severe brain injuries from a swing set collapsing on his head at the Lamplight Village gated community. playground1-300x181 In that case, stemming from an incident that occurred in 2013, a crossbar located on the association’s common-area swing set had corroded and worn badly at the connection points.  As a result, the 42-pound crossbar fell on a 15 year-old boy’s head while he was using the swing set, causing significant brain injuries.

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With their eco-friendly promise to Mother Nature, electric vehicles have gained popularity among U.S. consumers and policymakers alike, and auto industry giants are predicting even further growth for this high-tech and environmentally-friendly segment of the market in the future.  Notwithstanding the growth thus far, one of the challenges that has been potentially inhibiting the greater dispersion of electric vehicles throughout Florida has been the lack of clarity in the law with respect to the installation and use of electric-vehicle charging stations within condominium communities.  However, Florida’s Legislature recently passed a new law facilitating an owner’s capacity to install and use an electric-vehicle charging station within their condominium building that will surely ameliorate some of these challenges.

carchrg2-300x155Before adoption of the new law, and as a result of the potential legal, engineering and financial liabilities resulting from the installation of electric-vehicle charging stations on a large scale, many boards of directors raised questions regarding the proper method to facilitate owners’ requests to install electric-vehicle charging stations within condominium building parking garages.   The new addition to Florida’s condominium association laws provides clarity to some of these questions.

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Hoarding is becoming an increasingly common problem throughout the nation, especially for community associations where people are forced to cohabitate at close proximities. Depending on its gravity, hoarding can pose health threats to fellow residents, causing foul odors and pest control issues that spill over into hallways and neighboring units. Despite being a nuisance, it is important to remember that compulsive hoarding is a disorder, one which usually implicates some sort of mental health issue. As a result, community association board members and property managers should be sensitive and discrete when handling hoarding concerns in their communities.Hoarding-300x157 Continue reading

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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