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Articles Posted in Community Association Law

Community associations in Florida contending with fraudulent emotional support animal (ESA) requests may get some relief. Governor DeSantis signed SB 1084 into law on June 23, 2020.  The new law prohibits discrimination from housing providers to someone requiring an ESA, but also prohibits health care practitioners from providing information regarding a person’s need for an emotional support animal without having personal knowledge of the person’s need for the animal.

The law, which becomes effective on July 1, 2020, requires a patient to establish the need for an ESA by delivering to the housing provider supporting information from a licensed healthcare practitioner, a telehealth provider, or other similarly licensed practitioner, including an out-of-state practitioner who has provided in-person care or services to the patient on at least one occasion.  esupdog-300x234It is important to keep in mind that the in-person requirement is only for establishing the disability, not for establishing the need for an animal.  Housing providers may establish a routine method for receiving and processing ESA requests. However, they cannot require the use of any specific forms, deny a request solely because the resident did not follow their methods, or request information that discloses the diagnosis or severity of the resident’s disability.

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Maryvel-De-Castro-Valdes-002-200x300An article authored by firm shareholder Maryvel De Castro Valdes is featured 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 “Ruling Proves Community Associations Need to Revise Own Governing Documents,” focuses on a recent ruling by Florida’s Third District Court of Appeal that added to the growing string of decisions in recent years illustrating how an old and outdated provision in HOA and condominium association declarations is preventing some communities from collecting what they would be owed under the current state law from purchasers in foreclosure actions.  Her article reads:

. . . The ruling came in the case of Old Cutler Lakes by the Bay Community Association v. SRP SUB, LLC. The LLC took title to a unit within the community via a mortgage foreclosure auction and subsequently filed an action for declaratory relief seeking to determine its liability for the association assessments that accrued prior to acquiring title.

dbr-logo-300x57While Florida law holds that a parcel owner is jointly and severally liable with the previous owner for all unpaid assessments that came due up to the time of transfer of title, including by purchase at a foreclosure sale, the LLC was apparently well aware that the association’s declaration contained a provision that essentially extinguished its liability for the past-due assessments owed by the previous owner.

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While the 2020 Florida Legislative session was positioned to be a very active one, the COVID-19 pandemic seems to have affected the number of bills passed by the legislature. Below we have provided brief summaries of the bills passed by the Florida Legislature which impact Florida community associations.  It is important to note that at this time only a couple of the adopted bills have been signed by the Governor.

ADOPTED BILLS

SB 476: Law Enforcement Vehicles.  The approved bill includes provisions which preclude a condominium, cooperative, and homeowners’ associations, respectively, from prohibiting a law enforcement officer from parking his or her assigned law enforcement vehicle in certain areas.  The effective date of this bill is 2/21/2020.

SB 140: Fireworks.  The approved bill relates to the use of fireworks and defines the term “designated holiday”.  The bill provides for an exemption for the use of fireworks solely and exclusively during a designated holiday and prohibits homeowners’ associations from promulgating certain rules or regulations restricting same.  The effective date of this bill is 4/8/2020.

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RobertoBlanch_8016-200x300An article authored by firm shareholder Roberto C. Blanch was featured as the HOA View expert guest commentary column in the Business Monday section of today’s Miami Herald.  The article, which is titled “HOAs, Condo Boards Should Brace for a Slowdown in Dues and Tread Carefully,” focuses on the strategies that community associations should deploy in response to the financial strains created by unit owners who become unable to pay their monthly dues.  His article reads:

. . . As they begin to consider their options, some associations are now giving thought to relaxing their collections by waiving late fees and interest on delinquencies, and perhaps also foregoing entire monthly payments for those who become unable to pay due to the economic standstill. While this may appear to be a reasonable response, association directors must not lose sight of the fact that they are fiduciarily obligated to pursue the uniform collection of all payments and delinquencies, so they may be limited in their ability to offer any special considerations or concessions for those experiencing financial difficulties.

Payment waivers for the economic casualties of the COVID-19 pandemic could also open the door to future requests by unit owners for similar concessions related to other financial setbacks.

MHerald2015-300x72Instead, associations could borrow a page from the playbook of previous economic downturns and consider sanctioning a uniform payment plan to assist owners who become delinquent. With the help of qualified legal counsel and financial professionals, they could create a payment plan that is uniformly available to assist all the unit owners who suddenly become unemployed.

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The 2020 hurricane season has just begun, and NOAA predicts a 60 percent chance that it will be busier than normal.  In addition to all the standard hurricane preparations and measures that community associations should take in advance of a storm threat, the COVID-19 pandemic will bring an added dimension of protocols and precautions.

Associations for communities located in areas under evacuation orders will need to implement their plans in accordance with the CDC guidelines for social distancing and face coverings.  Residents will need to be reminded to adhere to the federal agency’s recommendations, and those who refuse to comply with evacuation orders out of fear of exposure to the virus will need to be referred to the association’s legal counsel and possibly also to law enforcement.

Below is a link to our firm’s Hurricane Preparedness and Recovery Guide, which includes helpful guidance and recommendations for community associations to prepare for storms and contend with their aftermath.  We encourage association directors and property managers to print and review the guide at the start of the season, and our attorneys are available to answer any questions regarding the information in the guide that may arise.

Hurricane Preparedness and Recovery Guide

RobertoBlanch_8016-200x300Firm shareholder Roberto C. Blanch was quoted extensively in an article today by The Real Deal South Florida on the looming financial strains for community associations due to the spike in unemployment caused by the COVID-19 economic standstill.  The article, which is titled “South Florida HOAs and Condo Associations Prepare for a Drop in Collections,” discusses the options that associations are considering in response to the expected delinquencies.  It reads:

. . . Attempting foreclosure is also an expensive process that some associations will want to avoid, and the temporary freeze on foreclosures and evictions until mid-May is expected to create a backlog of cases.

Plus, “the end game – foreclosure – may not necessarily be in the best interest of the condo [association],” said Siegfried Rivera attorney Roberto Blanch.

A number of associations he represents have been proactive about reducing operating expenses wherever possible. Blanch said associations are “anticipating they are going to have difficulty collecting payments from owners who have lost their jobs, who have been furloughed, or been laid off.”

TRDlogo-300x80Some are offering payment plans or waiving late fees to owners who have requested that, similar to what happened in 2008 and 2009. But the true impact has yet to be seen, he said. Payment plans could consist of lowering the portion of fees an owner has to pay for the first three months, and then spreading the rest out over the remaining set period of time.

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Protecting the residents and management staff should be a priority for condominium association board members and property managers during the novel coronavirus outbreak. Most management companies have already implemented their business continuity plan to ensure there are no disruptions in services provided by associations and management.  While it is important for management to be prepared to deal with the possible impact of this pandemic, it is also imperative that board members stay involved and consider having a preparedness plan in place for the association at large.

The first step a board of directors should take — and one that is often overlooked — is to designate an individual to stay informed on governmental updates by consulting reliable resources and signing up to receive alerts.  Government and health department websites dedicated to providing COVID-19 updates, such as the Centers for Disease Control website, are typically the most reliable sources of information.  In this ever-changing environment, guidelines and orders issued by local and state governments are continually updated, and it is important to ensure that the information which is being relied upon for vital decisions is the latest and most accurate available.

The next order of business is to have a clear communications plan in place.  Effective communication allows both residents and management staff to stay informed about coronavirus updates, safety practices, amenity closures, and possible infections in the building.  Boards should ensure that rosters are updated with the most current contact information for residents and building staff. They should also consider contracting with a third-party platform that enables secure communication between owners and management via email, texts or an app, should these capabilities not already be in use.

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The coronavirus pandemic has created a lot of uncertainty for community associations throughout Florida, especially concerning meetings and amenity use.  Management professionals and board members are left struggling between protecting their residents by taking measures to limit the spread of the virus and continuing to conduct business as usual.

We share your concerns about the COVID-19 outbreak and the impact that it may have on our community. We urge that everyone continues to turn to the CDC and other qualified health professionals as their primary source of information and guidance. As we navigate these unchartered waters together, we ask that our clients stay calm and take rational courses of action to safeguard their communities and addressing situations properly while protecting their association from a potential claim.

As the CDC continues to encourage “social distancing,” many associations are left wondering whether or not they should be moving forward with duly scheduled meetings. Board members and property managers should evaluate the importance of the action items being discussed or voted upon before making any determinations on cancellations. Boards that are concerned about having in-person meetings should consider holding virtual meetings in conjunction with or in place of in-person gatherings.

Social gatherings in clubhouses and recreational facilities are also a cause of concern. We discourage clients from limiting the number of guests that residents can invite or trying to impose intrusive policies such as checking temperatures prior to allowing entry to the community. When in doubt, contact association counsel for a legal opinion.

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This year’s legislative session is well underway, and there are a handful of bills that community associations should keep an eye on. Our firm is tracking the following bills that may have an impact on community associations, if passed:

HB 209 /SB 1084: Emotional Support Animals

Similar to federal law, Florida law requires reasonable accommodations for those individuals with service animals, but fails to provide guidelines for other assistance animals, such as emotional support animals (ESA).  This bill amends Florida’s Fair Housing Act by prohibiting discrimination in housing against individuals with a disability or a disability-related need who require an ESA. The bill also prohibits housing providers from charging additional fees pertaining to an ESA. The bill specifies that the individual requiring the ESA is liable for any damages to the premises or to another person resulting from the ESA. This bill also allows a housing provider to request supporting information regarding the individual’s disability or disability-related need for the ESA, and creates a new cause for disciplinary action against a health care practitioner’s license for providing supporting documentation for an ESA to those whom they haven’t treated. Finally, the bill creates criminal liability for providing false or fraudulent documentation in support of an accommodation request for an ESA. If passed, this bill will be effective July 1, 2020.

Flalegislature-300x169HB 623 / SB 1154: Community Associations

This legislation proposes a vast amount of modifications to Chapters 718, 719 and 720, Florida Statutes. In part, the bill allows for the removal of outdated language in community association governing documents, confirms when board member term limits are considered to begin to run, and clarifies that owners need not provide a reason for inspecting association official records. If passed, this bill will be effective July 1, 2020.

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On March 2, 2020, York Condominium Corporation of Ontario, Canada, advised its residents that one of its security guards, who had traveled overseas, had been diagnosed with COVID-19.  For the residents of the community involved in this case and all those who reside or work in communities with associations, chatting and interacting with one’s fellow neighbors and association staff can be one of the greatest joys of condominium or community living.  However, being in proximity with others is the most typical pathway to contagion when infectious diseases such as the deadly COVID-19 coronavirus are circulating.  In response to the expected rise in COVID-19 cases, now is the time for associations to dust off and review their emergency plans and implement some important precautions.

To protect against catching and spreading COVID-19, the Centers for Disease Control and Prevention recommends washing hands frequently with soap and water for at least 20 seconds, especially after going to the bathroom, before eating, and after blowing your nose, coughing or sneezing.  If soap and water are unavailable, use an alcohol-based hand sanitizer with at least 60 percent alcohol.  It is also recommended to avoid close contact with people who are sick, and stay home when you are sick.

Community associations should take a proactive approach toward preparing for the potential spread of COVID-19.  Associations should consider installing and using hand sanitizer dispensers in high traffic areas, including the lobby, management office, meeting rooms, social rooms, dining halls, package rooms, fitness center and elevator vestibules.  They should also focus on upgraded cleaning measures and protocols to help ensure that high-touch surfaces, including lobby reception desks, elevator buttons, handrails and door handles, are being cleaned and sanitized on a regular and frequent basis.  Common-area restrooms should be cleaned and inspected with frequency, and special attention should be given to refilling all essentials such as soap and towel dispensers.

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