Articles Posted in Community Association Law

The recent news about an accident inside G.L. Homes’ Seven Bridges community in Delray Beach involving four children on a golf cart highlights the potential legal liabilities for Florida associations concerning kids driving golf carts.

According to a report by BocaNewsNow.com, four children were riding a 2014 EZ Go “Freedom” Golf Cart on the community’s main street when the unlicensed 15-year-old girl driving the cart darted in front of an oncoming car.  The car, which was driven by Sunny Isles resident Eduard Hiutin, crashed into the golf cart, causing its driver and passengers, ages 11, 13, 14 and 15, to be ejected onto the street.  The children were transported by ambulance to the trauma unit at Delray Medical Center, where one was treated for a catastrophic injury.

The golf cart driver, who lives in the community along with two of the other children, was charged with operating a motor vehicle in a careless or negligent manner as well as failure to yield to the right of way.

gcart-300x158While the parent of the golf cart driver can be sued for negligence in such a case, the association can also be named as a defendant.  In fact, according to the Seven Bridges community’s governing documents filed with the clerk of courts, Seven Bridges requires a golf cart driver to be at least 16 years old and carry a valid driver’s license.  If enforcement of this rule was lax, potential liability could be alleged.

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The Florida Marketable Record Title Act (MRTA) requires HOAs to reaffirm and renew their covenants and restrictions 30 years after they were originally recorded in the local county records.  MRTA was created to extinguish claims to property which are at least 30 years old in an effort to stabilize property law by clearing old defects from the chains of title to real property, limiting the period of record searches, and clearly defining marketability by extinguishing old interests of record.

One of the unintended consequences of the Act is that the declarations of covenants, conditions and restrictions recorded by HOAs may be set to expire after 30 years of the date in which they were recorded.  Keep in mind that for most HOAs, if the residents are no longer compelled to act in accordance with the community’s declaration, the results could be catastrophic for the associations’ administration and finances.

Flalegislature-300x169The Florida legislature passed a law earlier this year to update the process for HOAs to renew and preserve their covenants and restrictions under MRTA in order to keep them in place after the 30-year term.  Under the new law, which is now in effect, at any time during the 30-year period following the effective date of the title for the covenants and restrictions of a community association, the association may preserve and protect those covenants or restrictions from extinguishment by following more simplified filing procedures which include the following:

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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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A Lantana couple that had been arrested for defrauding their homeowners association were recently found guilty and hit with a severe jail sentence and restitution order.  The judge in the case found William and Darlene Cox, the former president and treasurer of Lantana Homes HOA (respectively), guilty of embezzling from the association that they helped to lead.

William Cox was sentenced to three years in state prison, while Darlene Cox was placed on probation for five years, the first of which must be served with a monitor.  They were also ordered to pay more than $360,000 in restitution to the HOA.

According to a report by CBS 12 News in West Palm Beach, the current leaders of the HOA are frustrated because Darlene Cox is still living in the community.  She remains a neighbor amongst all of those she defrauded and robbed.

willcoxDarlene and her husband were arrested in November 2016 after the current board discovered financial discrepancies in the association’s accounts.  According to the arrest report, the two were accused of taking the HOA funds and using the money to pay their personal car insurance as well as their homeowners and life insurance premiums.

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Earlier this year the Florida legislature passed an important update to the new condominium association website requirements that the state’s lawmakers codified during the 2017 legislative session.  The most important change was to extend the deadline for associations to launch their websites from July 1, 2018 to Jan. 1, 2019, providing condominiums and their property managers with an additional six months to develop and launch their sites.

In addition, the new website requirement no longer applies to multi-condominium associations with combined totals in excess of 150 units if none of individual condominium properties operated by the association contains 150 or more units.

Flalegislature-300x169The 2018 statutory amendments also changed some of the posting requirements to allow for the posting of summaries of certain documents rather than the documents themselves.  The official records that must be posted in the new websites also now include monthly income or expense statements as well as all bids in excess of $500 received from vendors during the past year for materials, equipment or services.

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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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Many associations’ governing documents include clauses that prohibit commercial business activities from being conducted in a resident’s unit.  Some include a blanket stipulation banning commercial activity altogether, while others make a distinction between permissible and impermissible activities.  While it makes sense for associations to want to regulate and restrict businesses from operating within their communities, HOAs and condominium associations should take a prudent approach that is guided by reason.

When considering how to regulate and enforce restrictions against commercial activities, associations should focus on the impact that particular activities have on the community and the quality of life of those who make it their home.  Today’s technology allows for a great deal of work to be done from home with no disruptions whatsoever to the community at large.  homework-300x200Rather than attempting to ban all commercial activities in a community, the better option is to specifically delineate in the governing documents the types of activities that are not allowed.

Some of the activities that communities wish to ban are those that entail significant vehicular traffic, including from clients as well as vendors and delivery vehicles.  Continue reading

Condominium association boards of directors are always considering measures to help maintain and enhance the quality of life of their community’s owners and residents.  Some associations grow concerned about too many occupants per unit and the burden that additional residents place on a community’s amenities and services, so they decide to implement occupancy restrictions in order to limit the number of people residing in each unit.

However, as a Palm Beach County condominium recently found out, overly aggressive occupancy restrictions have the potential to run afoul of the federal Fair Housing Act bans on discriminatory housing practices against couples with children, and nonprofit housing agencies are willing and able to take up the case of aggrieved residents or proposed residents.

A fair housing advocacy group called the Fair Housing Center of the Greater Palm Beaches filed suit in federal court recently against the condominium association for the Fontana Condominium in Palm Beach as well as its president and property manager.  The suit alleges that the defendants have discriminated against families, including those with minor children, by enacting and enforcing policies that limit the number of persons and children who may reside in the community’s units.  It is seeking preliminary and injunctive relief as well as damages for the alleged discrimination against familial status in housing that violates the Fair Housing Act and the Civil Rights Act of 1968.  The suit also seeks punitive damages, attorneys’ fees and a court order mandating that the defendants establish a victims’ fund for those were victimized by their discrimination.

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EvonneAndris-srhl-law-200x300Firm shareholder Evonne Andris authored an article that was featured as the “My View” guest commentary column in today’s edition of the Miami Herald’s Business Monday, the newspaper’s weekly business supplement.  The article focuses on the brouhaha that drew considerable media attention in Orlando earlier this year involving an HOA’s dispute with a homeowner family over a “Little Free Library” book-sharing box installed in the front yard of their home.  Evonne’s article reads:

The library in question is a red wood box that resembles a birdhouse and is mounted on a sturdy wood post. The box, which is 24 inches tall, 20 inches deep and 24 inches wide, is part of the “Little Free Library” (www.littlefreelibrary.org) nonprofit organization’s network of free book exchange boxes that encourage reading and enable people to share books with their community. While popular in the central part of the state, there are approximately 10 Little Free Libraries in the South Florida area and more than 60,000 Little Free Libraries across the country.

agarik-1024x576The news reports indicate that within a few days of homeowners Bob and Autumn Garick installing the library box in their front yard, the property manager for Bentley Woods wrote to thank them for their efforts and suggest that they move the box to a common area in the neighborhood. The Garicks declined the offer, noting that the suggested area was about a half-mile from their home and would make it impractical for them to maintain the library.  Pictured here are the Garicks with their Little Free Library (photo courtesy, Autumn Huff Garick).

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One of the key takeaways from Hurricane Irma was a reminder about the importance of keeping trees properly trimmed in order to avoid damage to power lines from downed foliage.  However, a recent report by Channel 7 News (Fox) in South Florida about a Hallandale Beach HOA’s troubles with the city over its allegedly exorbitant tree trimming serves as a cautionary tale for all Florida community associations.

According to the report, the insurance company for the Hallandale Village Homeowners Association asked association president Richard Masone to trim the trees around the property at the start of this year’s hurricane season.  Masone complied and asked the association’s regular landscape maintenance company to trim the trees.

hrack-tree-300x225The job pleased the community’s insurer, but Hallandale Beach Code Enforcement officers were not happy with the tree trimming.  City Manager Roger Carlton called the trimming unacceptable, noting that it “enormously exceeded any reasonable amount.”

The association was told by the city that the trees were “hatracked,” or over-trimmed, and they ordered the community to dig up and replace the trees, which entails hiring an arborist and pulling permits for each of the 10-15 trees that would need to be replaced.

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