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Articles Posted in Condominium Association Law

AEsterasThe firm’s Awilda Esteras authored an article that is 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 “Appellate Court Reverses Itself, Finds Condo Fees Are Subject to FCCPA Restrictions,” focuses on a recent unexpected decision by Florida’s Fifth District Court of Appeal that reverted from more than two decades of case law on the question of whether condominium association fees qualify as debts under the Florida Consumer Collection Practices Act.  Her article reads:

. . . The new opinion, which comes in a unanimous decision by all 11 judges of the Fifth DCA, redefines the term “consumer debt” under the FCCPA with its finding that obligations to pay condominium assessments may be considered debts under the FCCPA.

The appellate court’s decision in Williams v. Salt Springs Resort Association reversed the lower court’s ruling that dismissed the case in favor of the association and its property management company. dbr-logo-300x57In Williams, an association and property management company were sued after publicly posting a list of names of more than 100 delinquent unit owners along with the balance due by each owner. Williams, one of the owners whose name appeared on the list, filed a class action complaint against the association and the property management company asserting the public posting of “deadbeat lists” to enforce the collection of consumer debt amounted to a violation under the FCCPA.

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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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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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Changes in public perceptions and levels of awareness of the issues surrounding emotional support animals have created a mandate for new state laws and federal policies.  Earlier this year I wrote in this column about new measures being considered by the Florida Legislature as well as the U.S. Department of Housing and Urban Development.  HUD has now released its official guidance for assistance animal requests and the responses to such requests by housing providers under the Fair Housing Act.

The federal housing agency reported that complaints concerning denials of reasonable accommodations for assistance animals have been growing significantly, and they now represent one of the most common types of FHA complaints that HUD receives.

The new guidance is intended to serve as a tool for housing providers and those with disabilities.  It covers many of the best practices for providers addressing requests for reasonable accommodations for assistance animals.

esupdog-300x234The guidance should help to make it easier for housing providers and individuals requesting an accommodation to gain a good understanding of the applicable laws.  For requests for emotional support animals in which the underlying disability may not be readily observable, HUD states that housing providers may request information regarding both the disability and the disability-related need for the animal, but they are not entitled to know an individual’s diagnosis.

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As documented in a recent report in the Miami Herald, the property manager of two Sunny Isles Beach condominium towers has been arrested for stealing hundreds of thousands of dollars from the associations for the properties.

Property manager Georgina Pineda (pictured below) was booked into a Miami-Dade County jail recently, and apparently it wasn’t her first brush with the law involving association theft and fraud.  This time, court documents allege she stole hundreds of thousands of dollars from the Eden Roc Condos, which she had managed since 2017.  The documents indicate that much of the money went to feed her gambling habit at the Miccosukee casino.

GPineda-300x169According to Sunny Isles police, Pineda had access to the condo association’s debit card. She was supposed to use it only for small expenditures for the community, but when the association board demanded a full audit she “continually made excuses as to why she was not providing accounting reports.”

The arrest report also states that when Pineda finally provided a spreadsheet, it was missing numerous transactions — including withdrawals at the Miccosukee casino in West Miami-Dade.  In addition, she was regularly transferring association funds into her own independent business account.

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If you live in a condominium, there is a reasonable chance that, at some point, you will experience one of the most frustrating events for homeowners:   water intrusion caused by plumbing problems and related losses.  The big difference between those who reside in a shared community, such as a condominium building, and those who reside in a single-family home is the added complication for condominium dwellers of determining responsibility and liability for any water damage and resulting remediation work.

In condominiums, the association is generally responsible for losses emanating from the property’s common elements.  Complications for assigning responsibility, however, typically arise from losses that may originate from inside an owner’s dwelling unit, and may cause damage to adjacent or below units, as well as to the common elements.

Such cases are often resolved through a negotiation between insurance carriers for unit owners and those for the association’s property, assuming the owners have adequate coverage. water-300x225 Insurers tend to find the most common sources of water loss from inside a dwelling unit to be sinks, showers, toilets, faucets, drains, supply lines, valves and pipes.  In addition, problems with appliances, such as dishwashers and refrigerators, are also likely culprits.

For shared walls and plumbing lines, insurers for multiple unit owners may be involved.  In those cases, carriers often work together to inspect the affected property, determine the cause of the water loss and assign responsibility where it lies.

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Plug-in electric vehicles are one of the fastest-growing segments of the automotive industry, and sources have claimed that sales of such vehicles are predicted to reach one out of every five vehicles sold during the next decade.  As a result of this growing trend, condominium communities nationwide are confronted with numerous concerns which must be addressed in order to accommodate the needs of an increasing percentage of unit owners hoping to find a solution to their electric vehicles’ charging needs.

Florida legislation adopted recently now requires condominium associations to accommodate owner requests to enable electric vehicle charging, with all the related costs being borne by the requesting owners.

carchrg2-300x155Condominium associations have generally adopted two distinctive approaches to address needs and requests related to their members’ electric vehicle charging needs.  Some associations with available space for a dedicated electric vehicle parking area have opted to install shared community charging stations.  Those communities opting for this approach may have pursued the installation of the charging stations on their own, while others may have availed themselves of third-party vendors interested in coordinating and funding the installation of such charging stations at the condominium.

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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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