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Articles Posted in Community Association Law

CSantisteban-200x300The firm’s Christyne D. Santisteban authored an article that was featured as the guest commentary column in the online edition of today’s Daily Business Review, South Florida’s exclusive business daily and official court newspaper, and will soon be appearing in the “Board of Contributors” page of its print edition.  The article, which is titled “Condo Garage Exit Alarm Creates Quite a Stir, But Only Requires Simple Solution,” focuses on an unusual condo dispute controversy that recently made local headlines in the Tampa Bay area.  It involved a parking garage exit pedestrian-warning alarm at a St. Petersburg, Florida, condominium tower that can be heard for several blocks and has drawn a nuisance lawsuit from a unit owner of a neighboring building.  Christyne’s article reads:

. . . The report in the Tampa Bay Times, which was followed by an editorial from the daily newspaper suggesting a simple solution, is sadly yet another example of an association ignoring an issue until it becomes a five-alarm fire, and then fanning the flames rather than easily and effectively putting them out.

dbr-logo-300x57The Times article focuses on Fred Sherman, who has apparently become extremely knowledgeable about the garage exit pedestrian-warning systems used by the buildings in his downtown St. Petersburg neighborhood. He demonstrates to the newspaper’s reporter that one has a voice that says “attention, vehicle exiting,” another has a light with a speaker that says “car coming,” and a third has a flashing device with some audio.

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The first major national condominium safety reform after the horrific tragedy of the collapse of the Champlain Towers South in Surfside, Fla., was announced in October when federal mortgage lender Fannie Mae said it will no longer back loans on units in residential buildings showing signs of structural deficiencies and deferred maintenance.

The federal mortgage underwriter’s new Temporary Requirements for Condo and Co-Op Projects are aimed at addressing the structural and financial health of buildings. The requirements mandate an in-depth review of safety, soundness and structural integrity conditions to determine a condominium tower’s eligibility. The end result will likely eliminate many thousands of condominium communities across the country from this vital source of financing for buyers.

Starting on January 1, 2022, Fannie Mae will no longer back and accept loans for condominium units in properties with significant deferred maintenance or which have been directed by a regulatory authority or inspection agency to make repairs due to unsafe conditions. fmae-300x212Units in such buildings will remain ineligible for purchase by Fannie Mae until the required repairs have been made and documented.

The conditions and deficiencies that meet the criteria for disqualification include full or partial evacuations, damage or deferred maintenance that affects structural integrity, and the need for substantial repairs for one or more of a building’s structural or mechanical elements including the foundation, roof, load bearing structures, electrical system, HVAC, plumbing, and others. Also, properties that have failed to pass local regulatory inspections or recertifications will not be eligible.

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My fellow South Florida community association attorneys at our firm and I have noticed an increased number of media reports about condominium and HOA disputes in 2021.  Laura Manning-Hudson and I have written about a few of these in this blog in recent months.  Typically, these situations arise due to what may be characterized as an inadequate and ineffective response by the associations involved, and sometimes they are created by inadequate planning.

However, a recent report by NBC affiliate Channel 8 News (WFLA) in Tampa about a dispute over holiday lights at a local HOA provides a good example of the type of response that communities can offer to help mitigate difficult circumstances that may adversely affect the fabric of the community.  The response by the association’s attorney in an on-camera interview with the station’s reporter goes a long way towards balancing the entire story, and it may even pave the way for a positive outcome that could be the subject of a future report by the station.

The station’s story chronicles how the Moffa family of the Westchase community hired a company to install holiday lights on their roof and front yard on Nov. 6. Mr. Moffa tells the station’s reporter that the early date was the company’s only availability, and he was unable to climb up on the roof himself.

WFLA400-300x225As a result, he and his family are now facing fines for violating the Westchase Homeowners Association’s rules and restrictions, which state holiday lights cannot go up before Thanksgiving. The letter from the HOA, which he shares with the reporter, indicates the family could be fined $100 dollars a day, up to $1,000, if they refuse to remove the lights, which apparently is exactly what they intend to do.

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Five months after the tragic collapse of the Champlain Towers South condominium in Surfside, Fla., several major organizations have developed a number of high-rise condo safety reforms and recommendations. However, most Florida counties and municipalities appear to be holding off in expectation of statewide changes to legislation during the next legislative session that starts in January.

The Community Associations Institute, which is the largest organization representing the interests of associations in the world, has issued a report with a number of public policy recommendations aimed at providing solutions for legislators addressing high-rise building safety. In addition, seven of Florida’s top architecture and engineering trade groups created a task force that has recommended re-inspections after 30 years with follow-ups every 10 years, and The Florida Bar has also completed the report and recommendations from its Condominium Law Life Safety Task Force.

CAI’s public policy recommendations cover the areas of reserve studies and funding, building maintenance, and structural integrity. The organization believes its recommendations should be considered for adoption into state law to support the existing statutory framework for the development, governance, and management of community associations. It is planning to release model statutory language in support of its policy recommendations.

In addition, federal mortgage lender Fannie Mae has released new project requirements for condominiums and housing cooperatives that will begin Jan. 1 for loans secured by units in high-rise buildings containing five or more attached units. The requirements place a heavy focus on structural and financial stability, and reinforces the importance of meticulous documentation of all appraisals, meeting minutes, financial statements, engineering reports, inspection reports, and reserve studies.

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Yet another highly questionable decision by a Florida condominium association has made local TV news.

The latest condo dispute to make the local evening news involves a New Smyrna Beach, Fla., owner who was denied the transfer of another unit at the same property from her late husband to her after his passing. According to a report by Channel 9 News (WFTV-ABC), Joan Cotton was denied the transfer of the additional residence that her late husband Jeffrey had owned for more than a decade by the board of directors for the condominium association for the Village of Colony Beach Club.

The community’s governing documents apparently allows for its board to approve or deny the transfer or sale of units in the community for any reason. The Cottons owned two units in the community: a single bedroom residence under her name, and a two-bedroom condo under his name in which they both resided.

She received a notification from the association indicating that the board of directors has voted to deny the transfer, and instead it has entered into an agreement to sell the unit to a third-party buyer for $466,500. wftv2-300x169The letter included a check to her for an initial down payment of $5,000 from the hopeful buyer, but her attorney has vowed to fight the association’s decision and says the closing is never going to happen.

“I started shaking, I started to cry,” Cotton says in the report. “It was horrible. You can’t just steal my condo!”

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Florida’s condominium laws were amended earlier this year to require that new association bylaws provide for alternative dispute resolution including mediation and arbitration, for many types of disputes. Prior to these latest changes to the state’s laws, condominium associations and unit owners were required to arbitrate these same types of cases with the Division of Florida Condominiums, Timeshares, and Mobile Homes prior to going to court.

Arbitrations under the state agency were a prerequisite to filing suit for condo association/owner disputes that involved or required owners to take any action, or not take any action involving their unit, or to alter or add to a common area. Arbitration was also required for actions involving elections, meeting notices and meeting conduct, requests to inspect records, and condominium terminations.

florida_dbpr-300x170Instead, the changes now allow condominium associations or unit owners to choose between the state agency’s hearing process or the pre-suit mediation process as required under the state’s HOA laws. All disputes involving elections and recalls must still go to the Division first.

What is the best choice for condominium associations: the arbitration process with the state agency that has been hearing such disputes for many years, or the pre-suit mediation process?

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My colleague Laura Manning-Hudson wrote about a dispute involving pet chickens that received unwanted TV news coverage for a Boca Raton HOA in her last blog post.  To help illustrate just how common such negative media coverage has become for community associations that make questionable decisions, my latest post just a couple of weeks later also focuses on another report by a local South Florida station involving disputed community association actions.

The latest story is on a Hollywood, Fla., condominium association’s decision to deny a 100-year-old resident a gate access pass decal for her to use when she is getting a ride home. The report by 7 News (WSVN-FOX) in South Florida features an interview with Vangie Commeau, who lives at the Carriage Hills Condominium and is 100 years old. She tells the station’s Patrick Fraser that earlier this year the property cancelled the manned security guard at its entrance gate in favor of an automatic scanner that reads bar codes on window-sticker decals on residents’ vehicles to open the gate.

wsvn-logoBecause Commeau does not own or drive a vehicle, she did not receive a decal from the association. She tells the reporter that she brought it to their attention, but the association responded by declining to issue her a gate access decal pass.

This creates a burden for Commeau when one of her friends takes her to the doctor or to one of her monthly lunches with their friends, as she is unable to get their vehicle in through the residents’ gate when they return. She was told to use the guest lane and buzz one of her neighbors to let her in, but she notes that forces her to make an appointment with a neighbor a day ahead.

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When it comes to coverage of community association disputes, nothing seems to draw the media’s attention more than quarrels involving the forced removal of unapproved family pets and service animals. One of the most recent examples is a report by CBS-12 News on a Boca Raton family that is fighting to keep its chickens and backyard coop, which they have maintained for the last 10 years.

The station’s report chronicles how the Ashley Park Homeowners Association has given Damir Kadribasic and his family a 14-day notice to get rid of the birds or start facing a fine of $100 per day. Kadribasic has retained an attorney and apparently intends to put up a fight. He says he has had the birds for the last 10 years with no complaints, and he showed the station a petition signed by his neighbors demanding that the HOA allow the chickens to stay.

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The family’s attorney says they were given a notice that consisted of a single sentence, and the association did not specify which bylaws were being violated. However, the station obtained a copy of the community’s bylaws, which do indeed state that only common domestic pets are permitted. To that, the owners’ attorney notes that the chickens are domestic because they are not being used commercially and are considered pets by the family. He also says that the HOA cannot selectively enforce its rules.

The station’s report concludes by noting that it asked the association for a response, but none was forthcoming. That was unfortunate for the HOA, because predictably the result was a one-sided report.  Click here to watch it on the station’s website.

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berenice-m-mottin-berger-2021-300x300LTLehr-2018-Siegfried-Rivera-200x300An article authored by the firm’s Lindsey Thurswell Lehr and Berenice Mottin-Berger was featured as the guest commentary column in the online edition of today’s Daily Business Review, South Florida’s exclusive business daily and official court newspaper, and will soon appear in the print edition.  The article, which is titled “Funding Community Association Repairs and Renovations,” concentrates on how the funding of long-term condominium maintenance, repair and replacement projects has become a major focus at many communities across the country after the horrific tragedy of the collapse in Surfside, Fla.  It notes that many association board members who previously might have avoided increasing monthly assessments and implementing large special assessments are now looking to evaluate and address the inevitable deterioration of their buildings.  Lindsey and Berenice’s article reads:

. . . Rather than kicking the can down the road in hopes that future boards will address worsening maintenance concerns, association directors are coming to terms with the fact that delayed repairs and maintenance are likely to exacerbate structural problems and increase the eventual costs, in addition obviously to the potential life-safety risks, to be borne by the owners. dbr-logo-300x57As never before, association boards and unit owners have become keenly aware of the importance of maintaining adequate financial reserves to fund future construction projects.

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Eduardo-Valdes-srhl-lawAn article authored by firm partner Eduardo J. Valdes is featured in the op-ed “Opinions” page of today’s South Florida Sun Sentinel.  The article, which is titled “Post-Surfside, condo associations must be proactive with change | Opinion,” focuses on the impact that the horrific tragedy of the Champlain Towers South collapse has had on the condominium associations for similar towers nationwide and their boards of directors.  Eduardo notes that in addition to the shared grief and remorse with the families and friends of all the victims, many condo owners across the country are now raising questions about their own buildings’ structural safety and financial health, and some have also begun to feel more concerned about the funding of reserve accounts for major repairs and replacement projects.  His article reads:

 . . . All buildings deteriorate over time, so associations should always set aside funding on an ongoing basis to mitigate and remediate any structural elements that require attention.

As they begin reassessing their associations’ commitments, condominium boards of directors will generally try to avoid special assessments demanding additional funds from all the unit owners. They will need to consult with legal, financial, engineering and insurance professionals to strike a balance between the funding of reserves and the use of special assessments when they become necessary from a life-safety standpoint.

Sun_Sentinel_Logo-300x97Condominium association directors and unit-owner members would also be well advised to come to terms with the new reality that future buyers will now have many more questions and concerns than in the past about the financial health of the association and current state of the actual property from the ground up. Some will surely request that sellers provide them with the minutes from prior board meetings, information on any past or planned special assessments, the status of renovation and remediation projects, past changes to the monthly assessments over the years, the findings of past reserve studies, and the status of current reserve funding. They are also now more likely to conduct a thorough visual inspection of the entire property prior to making a written offer.

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