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Articles Posted in Community Amenities, Common Elements

Nick-Siegfried-2013-thumb-120x180-61267jmilesThe firm’s Joseph A. Miles and Nicholas D. Siegfried were featured in an article in today’s edition of the Daily Business Review, South Florida’s exclusive business daily and official court newspaper, about a major verdict that they recently secured for one of the firm’s clients.  The article, which is titled “South Florida Lawyers Win $4.1M for Cable Company Fired Over Service Delays,” focuses on their work in securing the verdict for an affiliate of Miami-based OpticalTel in a case involving the company’s wrongful termination by a Central Florida HOA.  The article reads:

Coral Gables lawyers Joseph A. Miles and Nicholas D. Siegfried landed a $4.1 million verdict for Miami-based company PC Services LLC, which claimed the Cascades of Groveland Homeowners’ Association Inc. in Lake County should never have terminated an agreement with the company because it wasn’t responsible for a flurry of delays and problems with services.

The 2012 lawsuit arose from years of bad blood between the parties over a deal that turned sour. On July 2007, the homeowner association terminated its contract with PC Services, claiming it had failed to properly do its job. But PC Services argued it had and lost the opportunity to make a profit on its $1.6 million investment.

The defense argued it was right to terminate the agreement because it didn’t get what PC Services promised.

dbrlogo-300x57Defense lawyers Aristides J. Diaz and Thomas R. Slaten Jr. of Larsen & Associates in Orlando did not respond to requests for comment before deadline.

Making the case was no small feat for the Siegfried Rivera lawyers, as it was laced with technical jargon that would likely stump the average juror.

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Hurricane Michael caused severe damage to condominiums and HOA communities in the Florida panhandle, and in the aftermath of the storm many of the area’s community associations will be filing property damage claims with their insurers.  Here are some tips that will help the boards of directors and property managers for these associations to make the process as smooth as possible:

 

Document the Damage

One of first steps for associations to take will be to document the damage.  Taking photos from a number of different angles and perspectives is a good start, and video recordings documenting all of the damage throughout the affected areas are also very helpful.  This should be done prior to any repairs or clean up, including the installation of tarps to prevent further water intrusion.

hurricane-damage-300x200For roof damage, associations should be very cautious and avoid walking on roofs that have been impacted.  Some insurers may attempt to demonstrate that the damage was exacerbated by individuals walking on the roof to take photos/videos and install tarps.  If the damage is not visible from the roof access door of condominium buildings, consider using a drone to take aerial videos.

 

Prevent any Further Damage

The only repairs that should be made immediately following all of the photo and video documentation should be those that are necessary to prevent further damage and ensure safety.  This includes emergency repairs such as covering damaged roofs and broken windows with tarps.

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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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Florida community associations are always seeking to implement the most cost-effective options at their disposal to collect unpaid dues and compel unit owners/residents to comply with their rules and restrictions.  CPool-300x227ondominium associations used to have very few practical remedies at their disposal to address delinquencies and violations.  They could file lawsuits or arbitration actions, but the costs of pursuing these cases can be a significant expense, and the imposition of fines requires the use of a fining committee and can be difficult to collect.

As a result of legislative changes to the state’s Condominium Act a number of years ago, associations are now able to suspend the rights of an owner, tenant or guest to use common elements and facilities if the owner of the unit is delinquent more than 90 days in paying a monetary obligation to the association.  Condominium associations may also suspend, for a reasonable period of time, the right of an owner and/or resident to use common elements and amenities for the failure to comply with any provisions of the association’s declaration, bylaws or rules. 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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The recent report by Local 10 News (WPLG-ABC) in South Florida about a Hollywood, Fla. condominium association that is considering filing a lawsuit against the maker of the Pokémon Go game app came as no surprise to our firm’s community association attorneys.  We are now starting to hear from many of our condominium and homeowners association clients about their distress regarding the nuisances and potential security and liability issues that are arising as a result of the game and its players.

Many condominium associations are still unaware about an upcoming deadline that requires high-rise condominium towers to have automatic fire sprinkler or Engineered Life Safety Systems in place by December 31, 2019. However, it is imperative that both property managers and boards of directors familiarize themselves with the requirements established in the applicable sections of the Florida Fire Prevention Code (FFPC) in order to avoid having to pay hefty fines for not complying with the law.

The FFPC mandates that all buildings greater than 75 feet in height — measured from the lowest level of fire department access to the floor of the highest occupiable level — be protected throughout by an approved and supervised automatic sprinkler system no later than December 31, 2019, unless the building already has an approved Engineered Life Safety System (ELSS).

Though the Florida law requires an automatic fire sprinkler system or ELSS to be in place by the end of the year, the Florida Condominium Act includes an exception that allows condos the ability to “opt-out” of having to install a complete automatic fire sprinkler system. The act states that should a Florida condominium decide that its best option is to opt-out of the requirement, it must do so by December 31, 2016.

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Every four years, as presidential elections heat up, condominium and homeowners association communities throughout Florida are faced with the issue of political signs being posted in front yards, on balconies, in windows and on and around the common areas.  Association attorneys are often consulted, and most would advise associations to be extremely careful with how they create and enforce restrictions that prohibit political expression.

Most associations’ governing documents include restrictions that prohibit residents from posting signs anywhere on the unit or the property.  Political signs, however, give rise to issues of freedom of speech, which is protected by the First Amendment.

The key for associations to remember is that restrictions on freedom of speech under the First Amendment apply only in governmental or public settings, so community associations, as private non-governmental entities, are allowed to restrict signage, including political signs, in accordance with their corresponding state law.  Some states have enacted legislation specifically addressing the issue, but Florida has not and neither has the state’s Supreme Court addressed the issue specifically.

psigns

As a result, Florida’s associations are able to enact and/or enforce rules and restrictions governing the display of political signs by their members, but they are cautioned to do so very judiciously and under the watchful guidance of highly experienced association legal counsel.

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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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The start of a new year represents a slew of new beginnings for most community associations. From holding annual elections to the preparation of annual budgets, the first quarter of the year marks a pivotal time for many associations. With that comes a great deal of confusion, particularly with regard to the proper way to fund reserves.