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Articles Posted in Condominium Association Law

Michael-Hyman-srhl-lawThe firm’s Michael L. Hyman authored an article that was 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 “Owner Who Sells During Foreclosure Litigation Still Entitled to Legal Fees,” focuses on a recent case illustrating how associations can become liable for the attorney fees and costs of unit owners who prevail in foreclosure actions for past-due assessments even if the owners sell their unit during the pendency of the litigation.  His article reads:

. . . In Victor Tison v. Clairmont Condominium F Association, the Fourth District Court of Appeal reversed the lower court’s final order denying Tison’s motion for attorney fees and costs. The appellate panel found that as the prevailing party in a lawsuit brought against him by his condominium association for unpaid assessments, Tison was indeed entitled to recover prevailing party attorney fees even though he sold his interest in the condominium unit during the pendency of the foreclosure action.

dbr-logo-300x57The case began in December 2015 when the association filed a lawsuit against Tison and another defendant seeking to foreclose on an assessment lien against their residence and recover damages for unpaid assessments. The defendants responded by filing an answer with affirmative defenses, which they later amended, and they alleged that they would be entitled to recover attorney fees and costs.

More than a year later in March 2017, the trial court denied the association’s motion for summary judgment, and the defendants sold the residence. Another entire year after that, the trial court entered a final order dismissing the action for lack of prosecution.

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The topic of parking within community associations is oftentimes a source of much consternation.  The limitation of parking spaces in HOA and condominium association communities – whether real or perceived – may result in volatile and contentious situations for community association stakeholders.  Homeowners, property managers and directors alike are confronted with concerns about the manner by which vehicles are parked; the number of vehicles residents choose to park within communities; the number of guests an owner may have at one time parking their vehicles within a community; the duration which vehicles may be parked; the types, appearance and size of vehicles parked within a community, and the locations in which residents or guests choose to park vehicles within a community.

npark-227x300In order to address these concerns, community association directors typically adopt rules and restrictions governing how, when, where, how many and what types of vehicles may be parked in the community.  However, unit owners can become very frustrated by such rules and restrictions, especially if they are perceived to be overzealous or ill-intended.

Board members and property managers should take every precaution to strike a balance between the rules and restrictions they impose upon parking within the community and the legitimate concerns they intend to address by the imposition of such rules.

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Community associations in Florida are required to provide owners with access to the association’s official records within 10 working days after receiving a written request from a unit owner or the owner’s authorized representative.  Given such a statutory mandate, it is not so uncommon for associations to receive requests to inspect financial and accounting records, contracts, certified copies of plans, permits and warranties provided by the developer or any other contractor, as well as copies of the declaration, articles of incorporation, bylaws, rules and regulations, and insurance policies.

Associations should be prepared to respond to requests to inspect official records by utilizing strong document management and retention policies.  For large associations, records should be cataloged and preserved using third-party cloud services for offsite storage and backup.  These systems can be set to automatically backup and store association records at regular intervals.

One of the simplest ways for associations to keep a thorough and searchable archive of important email communications with property management, attorneys, insurance brokers and others is to utilize a single association board email address as the sender and/or copied recipient of all such messages.

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The Community Associations Institute, the largest organization representing the interests of communities with associations, recently issued a new public policy titled “Assistance Animals and Pets in Community Associations.”  The new policy recommendations, which were adopted by the organization’s Board of Trustees, serve as excellent guiding principles for associations and lawmakers on pet restrictions and assistance animal policies.

The policy recognizes the rights of residential community associations to regulate and adopt rules pertaining to pets and assistance animals, but it notes that such rules must guarantee the rights of individuals with disabilities to receive the assistance they need as mandated by state and federal laws.  It will be used by the organization and its legislative action committees around the country to support legislation allowing associations to request documentation that verifies the need to accommodate for an assistance animal, and which imposes penalties for fraudulent requests for service or emotional support animals.

esupdog-300x234Assistance animals are recognized as deserving of reasonable accommodations for the qualified disabled under the federal Fair Housing Act.  Assistance animals are not considered pets, according to the U.S. Department of Housing and Urban Development, which oversees the Fair Housing Act and investigates claims of housing discrimination. Continue reading

A recent editorial by the South Jersey Times focused on the tragic and untimely death of a 25-year-old HOA community resident that is being blamed on an overly restrictive association rule.  Tori Gerstenacker (pictured below) was struck and killed by a motorist while crossing Route 70 in Evesham Township.  She parked her pick-up truck at a shopping center across the busy highway because the HOA for the Delancey Place community where she lived has a rule against parking commercial vehicles.

According to her roommate, Gerstenacker regularly parked at the strip mall because the homeowners association warned her that it would tow her truck if it was parked in the community.  The roommate says she drove a Ford F-150 pickup truck similar to those several other Delancey Place residents park in the community without drawing the ire of the association.  The difference is that Gerstenacker’s truck featured the logo of the company she worked for, identifying it as a “commercial” vehicle.

tgersten-225x300The editorial concedes that blaming the Delancey Place association for Gerstenacker’s death is not fair.  “Several other circumstances could have contributed, including how much care she took in crossing a busy, dark state highway, and the actions of the motorist who struck her. (The driver stayed at the scene and cooperated with investigators),” it reads.

However, it also states that associations should avoid putting their residents between a rock and a hard place.  It notes that there are no side streets along Route 70 where residents of the area’s multitude of developments can conveniently park non-conforming vehicles.

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A new rule by the Federal Housing Administration that went into effect Oct. 15th is making it easier for first-time condo buyers, even those with less than perfect credit scores, to get approved for FHA-backed mortgages.

The new rule allows individual condominium units to be eligible for FHA mortgage insurance even if the condominium development has not been FHA approved.  It introduces a single-unit approval process, which will make it much easier for many condominium residences throughout the country to become eligible for FHA-insured financing.

The rule changes also extend the recertification requirement for approved condominium communities from two to three years, and it allows more mixed-use projects to be eligible for FHA-insured mortgages. fha Condo developments will be eligible for FHA financing if their commercial/non-residential space does not exceed 35 percent of the total floor area (previously the maximum was 25 percent).

The FHA provides mortgage insurance on loans made by FHA-approved lenders, which benefit from the added protection against the risk of default.  According to the U.S. Department of Housing and Urban Development, the rule change is expected to make 20,000 to 60,000 condo units per year eligible for the FHA-insured financing.

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A recent article by the Marco Eagle newspaper reported that the Marco Island Code Enforcement Magistrate recently issued $1,000 fines to three condominium associations for violating sea turtle lighting restrictions.  For one of the properties, it was the second such violation in consecutive months.

The violations involved lighting in the pool areas that reflect on the oceanfront buildings.  These lights could potentially disorient turtle hatchlings, causing them to move away from the shore.

sturtle-300x200The newspaper report also noted that the city’s code enforcement office had recently issued $1,300 in fines against six condominium associations for violating sea turtle lighting restrictions.  To date, the municipality has issued 45 notices of violation during the 2019 sea turtle season, 25 more than in 2018.

The article also states that a local condominium resident recently posted in a Facebook group that she found a dead sea turtle hatchling inside of a Ziploc-type plastic bag in her building’s lobby accompanied by a note reading:  “This is what you get when you don’t close the blinds.  They crawl towards the light.”

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The Florida law mandating condominium association websites went into effect at the start of 2019.  By now, all condominium associations with 150 units or more (excluding timeshares) should have launched a website that complies with the new law.  Those that have not already created their website should do so immediately in order to avoid any potential repercussions.

Under the new law, password-protected condominium websites for the exclusive access by association members must include the recorded declaration of condominium and bylaws along with any amendments to each, the articles of incorporation filed with the state, and the association’s rules and regulations.  The website must also include a list of all executory contracts and transactions to which the association is a party or under which the association or unit owners have an obligation.

After bidding for related materials, equipment or services, the website must include a list of bids received by the association within the past year.  Summaries of bids in excess of $500 received from vendors during the past year for materials, equipment or services must be maintained on the website for one year.  In lieu of summaries, however, the association may post complete copies of those bids.

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Requests by unit owners to review official records of their community association should not present any difficulties for Florida condo associations and HOAs, yet records requests often become needlessly contentious.

Associations in the state are required to allow access to their official records within 10 working days after receiving a written request from a unit owner or their authorized representative.  They may establish reasonable rules specifying the frequency, time, location and manner of record inspection and copying, but they cannot deny access.  Those that fail to comply may be subject to compensate the requesting owner with a minimum of $50 per calendar day beginning on the 11th day after receiving the written request.

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Changes and shakeups on community association boards of directors are common in Florida, and since the legislature has imposed term limits for association directors, communities are likely to see an even greater level of transitions to new board members in the years to come.

While it is still common to see the same directors serve year after year on association boards – mainly due to lack of participation – this practice does not present an ideal scenario for change. In a perfect world, board transitions should take place incrementally over time, enabling new board members to get up to speed on all the matters that are currently pending before the association with the help and guidance of experienced incumbent directors.

meet-300x166Wholesale changes to replace entire boards with new directors are never the best approach, yet unfortunately such total transitions do occur from time to time. Whether it is a board recall after a questionable election or a total overhaul election following some tempestuous controversy implicating the prior board, the new norm is entirely new boards comprised of completely novice board members taking over control from one day to the next.

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