Articles Posted in Community Amenities, Common Elements

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.

The station reports that the condominium association for the Villas of Positano is considering legal action to combat the throngs of Pokémon Go players who flock to the beachside building in the early morning hours.

The issue for the property is that it is a “PokeStop” for the popular game, meaning that the virtual monsters which the players are trying to find can be found at the entrance to the property that adjoins the public boardwalk along the beach.  Rare Pokémon monsters are released at midnight Pacific Time, so at 3 a.m. EST hundreds of players make their way to the condominium’s doorstep.

The property manager is quoted in the report indicating that the players urinate in the bushes in the property, litter and make a great deal of noise, which disturbs many of the residents.

The report indicates that Hollywood police are aware of the problem, but they have said that those who remain on the boardwalk and do not cause a disturbance are not breaking the law.  However, unfortunately for the association, many of the players are infiltrating its property in their search for the virtual characters.

The association is considering joining a class-action lawsuit or filing one of its own because the game’s maker has yet to remove its location as a PokeStop.

In addition to the problems arising from nonresidents, our firm’s other attorneys and I have been made aware that there are also issues arising caused by residents and their guests who are gallivanting through the hallways and common areas at all hours while playing.  The game features “lure modules” and virtual gyms to encourage players to meet and wage battles with their Pokémon, so players are interrupting their searches to congregate and play it together in the common areas.

Boards of directors are now beginning to address these issues.  Many are starting by issuing a bulletin to all of the owners, residents and staff reminding them that excessive noise in any of the common areas – including from Pokémon Go players – creates nuisances that are in violation of association rules, and building management/security should be contacted if any such nuisances arise so that immediate action may be taken.

Management, security and valet staff are also being tasked to maintain a high level of vigilance for nonresident players attempting to infiltrate the property as well as for residents and their guests creating disturbances while they are playing.  Other considerations include restricting access to lobbies and common areas during nighttime, checking to make sure the association has sufficient insurance coverage, and even adopting rules governing the times of day that the game (and others like it which are sure to come) can be played in the common areas.

Click here to watch the report in the station’s website.

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.

Contrary to common misconceptions, Florida Statutes require that associations must present a fully funded reserve to their fellow unit owners. An association may also present to the membership the option of either waiving reserves, or funding reserves less than fully, but it is not required to do so.

Reserves are used by associations to fund capital expenditures and items of deferred maintenance. Some reserve categories are mandatory (e.g., roofing, painting, paving, and any item expected to cost in excess of $10,000), while others are discretionary (e.g., insurance premiums). However, once a reserve fund is established, the monies dedicated to each category, including interest, may only be used for that category (unless the membership approves an alternate use).

According to Chapter 718.112(2)(f) of Florida Statutes, Florida condos must fully fund reserve accounts for capital expenditures and deferred maintenance. The amount to be reserved must be computed using a formula based upon the estimated remaining useful life and estimated replacement cost or deferred maintenance expense of each reserve item.

Now, what happens if once presented with a fully funded reserve account the association becomes interested in waiving or reducing all or specific reserve items? A vote must occur. Not only must a quorum be established in order for voting to take place, but a majority of the owners must be present either in person or by proxy in order to approve any changes.

Keep in mind that it is possible that certain owners will be voting via limited proxies. Should that be the case, special language must be included on the face of the proxy ballot, in capitalized, bold lettering, that should read as follows: WAIVING OF RESERVES, IN WHOLE OR IN PART, OR ALLOWING ALTERNATIVE USES OF EXISTING RESERVES MAY RESULT IN UNIT OWNER LIABILITY FOR PAYMENT OF UNANTICIPATED SPECIAL ASSESSMENTS REGARDING THOSE ITEMS.

Should a majority of the quorum of members not agree to waive or reduce the reserve account, then the association is responsible for fully funding the account. Whatever your association decides, keep in mind that the decision is only good for the particular year in question, and the whole process will have to be done again on the following year.

Constant new development of residential and mixed-use towers can be seen all over South Florida, with new projects being announced constantly. The construction of these new towers evokes buyers to ask themselves: What is better, new or old? The answer to that question is triggering existing community associations to spruce up their communities by giving them a facelift in an effort to stay competitive.

With the intention of luring buyers to choose new over old, newer buildings are offering luxuries such as: sleek and polished designs, newer amenities, revolutionized living technology and the idea of being the first to live in a space that has not yet been inhabited. Add-ons such as state of the art fitness centers, exclusive resident spa services and five-star concierge and building services are making the choice of selecting new construction more appealing. However, this option commonly comes with a heavier price tag and some unexpected issues. A few draw-backs such as unforeseen construction delays and unknown kinks arising after construction are common issues owners face when selecting new construction. They also face the infamous turnover phase — a time that could be very difficult for newly established community associations if they lack the right experts to guide them through the process. These challenges have prompted older towers to improve their buildings with hopes of enticing these buyers to look their way.

pool deck renovation.jpgOlder buildings are using the risks buyers face when purchasing new construction to their benefit. Towers over three years old are labeling themselves “established,” having already dealt with most, if not all, construction defects found after the developer turned over control. They also highlight the fact that their boards are more seasoned, helping buyers feel like they are placing their investment in knowledgeable hands. Also, construction delays would never be an issue since these units are all move-in ready. In addition to highlighting some of the benefits that come with moving into an established community, many older condo towers are also making the effort in renovating their spaces to update their design to match the designs offered in newer construction. Some have gone as far as converting racquetball courts into multi-purpose rooms, yoga rooms, arts and crafts rooms and additional fitness centers. Simply by turning something old into something almost-new, these towers are keeping up with newer condos and competing at a price level that tends to be much more affordable, while still offering a similar style of living. With this in mind, the boards of these older buildings should be cautioned that their association’s governing documents may prevent some of the proposed changes, and that many alterations and improvements must be approved by the association membership. Accordingly, it is advisable for community association counsel to be involved in the planning of any such changes.

It will be interesting to see what buyers will choose once most of these towers are finalized. Our firm’s community association attorneys have assisted numerous clients with redesign projects throughout the years. We write in this blog about important legal and administrative issues affecting associations in Florida, and we encourage association directors, members and property managers to enter their email address in the subscription box at the top right of the blog in order to automatically receive all of our future articles.