Community Amenities, Common Elements

May 31, 2023

Condo Association Faces Possible $20k Fine After Cutting Down Oak Without Permit

The Jungle Den Villas condominium association board of directors thought they had followed all of the proper procedures when they paid a landscaping company to cut down a large laurel oak tree. The Astor, Florida, community’s directors had found the decaying tree to be dangerous; it was dropping limbs on the dock and its roots were damaging the seawall.

The company the association hired agreed and, according to the board president, its owner assured him a permit would not be necessary with its arborist’s report. Unfortunately, that proved not to be the case, and the Volusia County Department of Growth and Resource Management issued the community with a violation notice indicating it could face more than $20,000 in replacement costs. The association would either be required to plant more trees or pay up.

treecut-300x200 In a subsequent report on the matter in the Daytona Beach News-Journal, the landscaping company’s owner explains that an arborist’s assessment before removing such a tree is usually sufficient for residential properties, but he denies saying a permit was not necessary. He noted that the customer is responsible for permitting, which is indicated in its written agreement with the association.

January 26, 2023

Motley Fool Article Highlights Benefits, Appeal of Communities with Associations

by Laura Manning-Hudson

Laura Manning-Hudson

A recent column on Motley Fool’s www.Fool.com website caught the attention of our firm’s South Florida community association attorneys. Author Christy Bieber begins by noting the negative perceptions toward HOAs that she and her husband shared, but she ultimately acknowledges their benefits and appeal.

“Living in a neighborhood with a homeowners association (HOA) has always seemed like a huge hassle to me. Several times, my husband and I have walked away from buying a home we love in an HOA neighborhood because of the ridiculous rules and restrictions applied to homeowners or because of the high fees the neighborhoods charged,” begins her column.

“We didn’t want to commit to huge monthly costs on top of a mortgage payment, or have our association tell us what kind of flowers to plant. And we’ve also lived in HOA neighborhoods where the association was disorganized and caused nothing but trouble.”

She notes that they vowed never to buy a house in an HOA neighborhood again, but they have now changed their minds and are looking to buy a property in a community with a strong association.

Why the change of heart?

HOA-Community-2 “We really fell in love with the neighborhood,” she writes.

Bieber notes that it is ideally located, near their favorite stores and restaurants, and hosts fun special events. She also loves the miles of walking trails that wind by beautiful lakes and streams. Rather than sitting in traffic to visit the area, they decided their best move would be to make the community their home.

July 31, 2022

Miami Herald Real Estate Column by Jonathan Mofsky: “Ruling Shows Pitfalls of Associations Enacting Changes Without Required Votes”

by Siegfried Rivera

Siegfried Rivera

The 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.

The 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.

July 22, 2022

Rules, Enforcement Are Keys to Reining in Bad Behavior, Promoting Safety in Community Pools

by Nicole R. Kurtz

Nicole R. Kurtz

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. The 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.

June 1, 2022

Florida Legislature Passes Swift Safety Reform Bill During Special Session

by Laura Manning-Hudson

Laura Manning-Hudson

Condominium safety reforms were very much in the spotlight during this year’s regular session following the unforgettable tragedy in Surfside, Florida. Though legislators could not agree on legislation pertaining to safety reforms during the regular session, they successfully did so during a special session. In a surprising move, Senate Bill 4-D unanimously passed in both the House and Senate and was recently signed into law by the Governor. The following are the key takeaways from the 88-page bill:

The “Milestone Inspection”

Florida has now imposed a state-wide structural inspection program for condominium and cooperative associations that are three (3) stories or more in height defined as a “milestone inspection.”
Community association managers or management companies contractually hired by a condominium association that is subject to this inspection must comply with this section as directed by the board.
Milestone inspections must be performed by December 31 of the year in which the building reaches 30 years in age, based on the issue date of the building’s certificate of occupancy, and every 10 years thereafter. Buildings located within 3 miles of the coastline must perform a milestone inspection by December 31 of the year in which they reach 25 years in age, and every 10 years thereafter. Buildings with a certificate of occupancy that was issued on or before July 1, 1992 must have the initial milestone inspection performed before December 31, 2024.
Condominium and cooperative associations are responsible for the scheduling and costs associated with the milestone inspection.
Milestone inspection means a structural inspection of a building’s load-bearing walls and primary structural members/systems.
Milestone inspections must be performed by a Florida licensed engineer/architect who must attest to the life safety and adequacy of structural components of the building. To the extent that it’s reasonably possible, the inspection must determine the general structural condition of the building as it affects the safety of building, such as necessary maintenance, repairs and replacements of structural components.
“Substantial structural deterioration” is described as substantial structural distress that negatively affects the building’s general structural condition and integrity.

fla-legislature-300x198 Milestone inspections will consist of two phases:

- Phase one — Visual examination of habitable/nonhabitable areas of building. If there are no signs of structural deterioration found, phase two is not required.
- Phase two — If substantial deterioration is found during phase one, phase two may involve destructive or nondestructive testing at the inspector’s discretion. This additional inspection may be as extensive or limited as necessary to fully assess areas of distress.
- Architect/engineer who performed inspections must submit a sealed copy of the inspection report and findings to both the association and appropriate local building official
Local enforcement agencies will provide buildings required to comply with this law notice of required inspection by certified mail.
Upon receiving notice, condominium/cooperative associations will have 180 days to complete phase one of the inspection.

February 27, 2022

Miami Herald Real Estate Counselor Column by Gary Mars: “Electric Vehicle Chargers At or Near Top of Many Condo Community Wish Lists”

by Siegfried Rivera

Siegfried Rivera

The 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.

The 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.

August 16, 2021

Covid Spike Fueled by Delta Variant Creates Renewed Concerns, Precautions for Florida Community Associations

by Laura Manning-Hudson

Laura Manning-Hudson

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.

centersdc-300x157

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.

March 24, 2021

Article by Evonne Andris in Today’s Daily Business Review: “Considerations for Community Associations Reopening Their Amenities”

by Siegfried Rivera

Siegfried Rivera

An 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.

While 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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January 26, 2021

Article by Gary Mars in Today’s Daily Business Review: “Questions Revealed by Ruling Over W Hotel Amenities Require Legislative Fix”

by Siegfried Rivera

Siegfried Rivera

An 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.

The 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.

October 5, 2020

CAI’s New Status Check Guide Provides Timely Info for Community Associations Reopening Closed Amenities

by Roberto C. Blanch

Roberto C. Blanch

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.

The 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.