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Articles Posted in Condominium Association Law

With the Covid-19 vaccines now rolling out across the country, there is hope that in the coming months gatherings of individuals who have been inoculated could safely take place. In the meantime, many community associations are continuing to conduct virtual meetings with attendees participating online or via telephone conference.

However, various provisions of the laws governing Florida condominium and homeowner associations raise questions regarding whether such virtual meetings are being conducted in a manner that is in full compliance. For instance, applicable condominium laws stipulate that annual meetings of the unit owners for board member elections must be held at the location provided in an association’s governing documents or, if none is specified, within 45 miles of the condominium property. This leads to the question of whether purely virtual annual meetings comply with the law.

The unprecedented circumstances arising during the pandemic has therefore caused many community association managers and board members to become creative – seeking to achieve continuity of association business vis-a-vis director and member meetings while also seeking to balance the protections recommended by healthcare providers and health authorities. One example is that some associations, in an effort to ensure that a condominium’s virtual annual meeting complies with the law, have made arrangements for the board of directors’ meeting to convene physically on association property while allowing members to attend via Zoom or other platforms.

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GaryMars-200x300An article authored by the firm’s Gary M. Mars was 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 “Questions Revealed by Ruling Over W Hotel Amenities Require Legislative Fix,” focuses on a recent ruling by the state’s Third District Court of Appeal that calls into question the legal framework for many Florida condo-hotels.  The appellate panel ruled in favor of an Icon Brickell condominium owner’s claim that the property’s declaration broke state law by giving ownership and control of shared facilities to the owner of the W Miami Hotel.  Gary writes that the decision signals the need for Florida’s lawmakers to consider legislative amendments to the state’s condominium laws specifically addressing the authority over common elements at condo-hotel properties.  His article reads:

. . . The 50-story Icon Brickell Tower 3 includes the 148-room W Miami, formerly the Viceroy Hotel, in addition to 372 condominium residences. New Media Consulting LLC, the owner of one of the units in the building, filed suit in Miami-Dade Circuit Court in 2018 against the building’s condo association alleging the property’s declaration of condominium gave the owner of the W Miami Hotel too much authority in violation of the Florida Condominium Act.

dbr-logo-300x57The plaintiff prevailed in the trial court via a summary judgment, which concurred that parts of the property’s declaration broke state law by giving ownership and control of the shared facilities to the hotel owner. The ruling essentially ordered the association to amend its declaration in accordance with state law, notwithstanding the fact that changing condominiums’ governing documents typically requires prior approval by a daunting super majority (usually 2/3 or more) of associations’ entire voting membership.

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Michael-Hyman-srhl-lawAn article authored by the firm’s Michael L. Hyman was 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 “Injunction Petition Against Ornery Condo Resident Sends Important Message,” focuses on a recent petition for an injunction stemming from pre-pandemic confrontations between a current and a former community association board member.  Michael writes that the case illustrates how associations and their directors should proactively address bellicose residents.  His article reads:

. . . The initial incident that led to the petition for the injunction, which was granted by the circuit court but eventually overturned on appeal, took place at a Broward County condominium in December 2018. That was when Patrick Gagnon, a member of the community’s board of directors, was accosted by prior board member Joseph Cash. A second incident later in the same month involved Cash allegedly yelling at Gagnon, calling him a liar and cursing at him.

dbr-logo-300x57Two months later in February 2019, Gagnon alleged that Cash confronted him two times, 45 minutes apart, yelling and cursing about new trees installed by the association that blocked the view from his condominium.

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Nicole-Kurtz-2014-200x300An article authored by the firm’s Nicole R. Kurtz 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 “Recent Arrests for Community Association Theft Illustrate Laws Working, Associations Must Do Their Part,” focuses on several recent incidents of embezzlement at Florida community associations, and it discusses the impact of the 2017 changes to the Florida laws to add teeth to condominium fraud and enforcement measures.  Her article reads:

. . . In Kissimmee, Florida, the second arrest of a former HOA property manager was covered as part of a series of investigative reports by WFTV (Channel 9, ABC). The reports chronicle how Sherry Raposo, who had previously been arrested on charges related to having her ex-cop-turned-felon boyfriend patrol the Turnberry Reserve community and using the HOA’s funds to bail him out of jail in North Carolina, was arrested yet again on new charges of fraud involving the accounts she oversaw while serving as a property manager for the community. The station also uncovered similar allegations of embezzlement against her from a different community in Seminole County, leading to the possibility of another investigation into Raposo and thousands of dollars that were moved from that HOA’s bank account.

dbr-logo-300x57Theft by a former property manager at the tony Parkshore Plaza condominium tower in downtown St. Petersburg also made headlines recently in the pages of the Tampa Bay Times daily newspaper. The report indicated that Abby Elliott was found guilty and had been sentenced to two years in prison for using the condo association’s funds to pay for vacations, airfares, salon treatments and other personal expenses.

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A recent survey by the Community Associations Institute found that 67 percent of respondents have noticed an increase in home-based businesses operating within their communities due to the COVID-19 pandemic. In the same survey, 83 percent of respondents reported that their community restricts home-based businesses, but 73 percent indicated that their association was now being more lenient when it came to approving residents’ requests to operate businesses such as daycares, school learning pods, hair stylists and others from their homes.

Most Florida community associations have restrictions prohibiting commercial business activities from being conducted in residents’ units. Some include blanket bans on commercial activity altogether, while others make a distinction between permissible and impermissible activities.

homework-300x200It makes sense for associations to regulate and restrict businesses from operating within their communities, especially for commercial activities that entail increased traffic and noise, but the upsurge in working from home in the new post-pandemic normal calls for HOAs and condominium associations to take a prudent approach that is guided by reason. Today’s technology allows for a great deal of work to be done from home with no disruptions whatsoever to the community at large. Rather 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.

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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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