Articles Posted in Enforcement Actions

MichaelHymanThe firm’s Michael L. Hyman authored an article that appeared as a “Board of Contributors” guest 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 “Associations Must Strictly Comply With Notice Requirements to Impose Fines, Liens,”  focuses on a recent ruling by the state’s Fourth District Court of Appeal that illustrates how Florida’s courts are going to demand very strict adherence to the statutory notice requirements in order for associations to impose fines and liens against unit owners.  Michael’s article reads:

A ruling last year by the Florida Fourth District Court of Appeal illustrates the severity of the consequences for community associations that do not follow the law to a tee in their notices to unit owners. In Dwork v. Executive Estates of Boynton Beach Homeowners Association, the appellate panel reversed the lower court’s award of fines because the HOA only provided 13 days’ notice of the fining committee hearing to the homeowner as opposed to the statutorily required 14 days.

dbr-logo-300x57The case arose over a dispute involving the stipulations in the HOA’s governing documents requiring all homeowners to keep their roofs and driveways clean and their fences in good condition. The association notified Jonathan Mitchell Dwork of violations of these requirements multiple times over several years, but he took no action.

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Marc-Smiley-SRHL-law-200x300The firm’s Marc A. Smiley authored an article that appeared as a Board of Contributors guest 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 “Delay Causes Loss for HOA in Lawsuit Over House Color,” discusses the takeaways from a recent ruling by the Appellate Division of the 13th Judicial Circuit Court in Hillsborough County.  The ruling focuses on one of the most common architectural review stipulations that homeowners’ associations use to maintain aesthetic standards for their communities:  the approval of the colors which homeowners may use to paint the exterior of their homes.  Marc’s article reads:

Many HOAs require the prior review and approval of proposed house colors by architectural review committees, which are typically overseen by three parcel owners who are not also members of the association’s board of directors.

However, many associations’ governing documents also include provisions to limit the power of the association to take action against color changes and other architectural modifications in perpetuity. Their declarations of covenants hold that new colors and other unapproved modifications will be deemed to be approved if they are not challenged by the association within a set period of time (typically one year).

dbrlogo-300x57A recent ruling by the Appellate Division of the 13th Judicial Circuit Court in Hillsborough County confirmed that such requirements for community associations to act within a set timeframe will be strictly construed and applied by Florida’s courts.

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A recent Florida case involving a condominium association and the dog of a 70 year-old army veteran and widower drew national attention after it was covered initially in the Orlando Sentinel.  The newspaper’s reports chronicle how the association for the Orange Tree Village condominium is attempting to ban the dog because it weighs 41 pounds, which is six more than the maximum weight under its rules, and it may be a banned breed.

As a result of the association’s decision, retired veteran Robert Brady filed a complaint with the U.S. Department of Housing and Urban Development after an arbitrator determined he had to surrender the dog by Jan. 11. dog4-300x171 The federal agency is now looking into whether the association can force the long-time resident to surrender his emotional support dog.

The attorney for Orange Tree Village said that his office has received calls sympathetic to Brady, but his client must enforce its rules that were established to keep residents safe.

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Our firm’s other community association attorneys and I are often called upon by association boards of directors and property managers with issues involving obstinate and disruptive unit owners who become a serious nuisance to directors, management and other residents.  In such cases, after warnings, incident reports and fines have failed to have any effect, legal action can serve as an effective recourse.

Such appears to be the case in the recent lawsuit filed by the condominium association for The Mark Yacht Club on Brickell Bay (pictured here) in Miami-Dade Circuit Court. the-mark-yacht-club-on-brickell-bay The association is suing Nuri Munis, Pelin Munis Cakov and Seda Munis, who own two units in the 36-story condo building, for putting the board of directors, property manager, staff and fellow residents through a hellish ordeal.

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All too often, we are asked by boards of directors and property managers what steps can be taken to prevent residents from continuing to break rules in their communities. Seldom, however, do we hear community associations that are active and persistent in disciplining their rule breakers. Typically, violations range from disobeying noise ordinances to more problematic ones such as ignoring an association’s prohibition of short-term rentals. Regardless of how big or small—or even how chronic—an infraction may be, it is important that board members do their part in enforcing the rules and regulations of their associations. Follow-Rules-300x157

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The use of drones by owners and residents of units in HOA and condominium communities has created concerns across the country over potential privacy and safety issues for community association managers and their boards of directors.  Sales of drones to consumers in the U.S. are expected to grow from 2.5 million in 2016 to 7 million in 2020, according to a report from the FAA.  As the popularity of drones continues to soar, associations will need to come to terms with how they wish to address their use within their communities.

At the FishHawk Ranch community in the Tampa area, the use of drones by a homeowner has created such an uproar that it drew the attention of local TV news.  The area’s CBS affiliate recently chronicled the battle that is brewing in the community over homeowner Frank Bragg and his collection of a half-dozen drones.

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Florida community associations are always seeking to implement the most cost-effective options at their disposal to collect unpaid dues and compel unit owners/residents to comply with their rules and restrictions.  CPool-300x227ondominium associations used to have very few practical remedies at their disposal to address delinquencies and violations.  They could file lawsuits or arbitration actions, but the costs of pursuing these cases can be a significant expense, and the imposition of fines requires the use of a fining committee and can be difficult to collect.

As a result of legislative changes to the state’s Condominium Act a number of years ago, associations are now able to suspend the rights of an owner, tenant or guest to use common elements and facilities if the owner of the unit is delinquent more than 90 days in paying a monetary obligation to the association.  Condominium associations may also suspend, for a reasonable period of time, the right of an owner and/or resident to use common elements and amenities for the failure to comply with any provisions of the association’s declaration, bylaws or rules. Continue reading

MichaelHymanFirm partner Michael L. Hyman authored an article that appeared as a “Board of Contributors” guest 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 Against Condo Owner Illustrates Just How Ugly Things Can Get,” focuses on a ruling in Broward Circuit Court last year that granted an injunction to a South Florida condominium association against the owners and residents of a unit in the 55-and-over community.  His article reads:

The association alleged that the defendants violated key provisions in the community’s declaration by threatening and disturbing other residents with their aggressive actions. In fact, one unit owner sought a restraining order against Juan Gonzalez, whose conduct ultimately resulted in his arrest for domestic violence and resisting an officer. The association alleged that this sort of conduct had been going on for several years, but it had escalated into more violent and aggressive levels. In addition to seeking injunctive relief against the defendants, it also sought to have the court require them to vacate the dwelling.

The court found that the defendants had threatened and disturbed other unit owners with repeated aggressive behavior and threatening words and actions. It ruled that the “credible evidence also established that the association tried to remedy the defendants’ behavior by speaking to the defendants, having the defendants appear before a committee of unit owners for the development of harmonious relations, calling the police on multiple occasions and having legal counsel send letters of violation demanding that the threatening and aggressive behavior stop, all to no avail.”

dbrlogo-300x57The ruling states that the association called a meeting of its grievance committee, during which Gonzalez acknowledged that he had been banging on the ceiling of his unit, and he suggested that he would not have to serve much time in prison if he killed somebody. It reads: “On numerous occasions continuing until the current time, he would use a stick or other object to bang on his ceiling, claiming that the occupant above his unit was making too much noise, but in reality these noises were common day-to-day noises such as walking through the apartment or taking a shower. On one occasion, he walked upstairs to use a baseball bat to bang on the occupant’s door, frightening her deeply that the defendant was attempting to break into her unit and resulting in the police being called to the premises. He later approached this same occupant when she was on the common areas, threatening her to her face. On another occasion, the defendant Juan Gonzalez threatened a staff member with a knife, and threatened the property manager that the defendant would run him over with his car.”

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One of the most common problem areas for condominium associations and their property management is parking.  Spaces are at a premium in most communities, and issues arise when unit owners and tenants fail to park in their designated spots.  Associations and their property managers must be well prepared in order to effectively contend with parking violations.

Most condominium bylaws allow for the adoption of reasonable rules and regulations governing the use of the common elements, which typically include parking areas and spaces.  Boards and management should determine whether the bylaws and/or rules are already adequately addressing parking in the community or if amendments to the governing documents and/or rules may be needed.

Some of the most typical issues addressed by parking rules are designated parking areas and spots for owners, guests and vendors, and spaces for commercial vehicles, boats on trailers, recreational vehicles, personal watercraft, campers, motorcycles and all-terrain vehicles.  Some communities have restrictions on the number of vehicles that a unit owner is allowed to park onsite, and some have time limits for the parking of vehicles in certain areas.

npark-227x300Bear in mind that all parking rules and restrictions must comply with the Fair Housing Accessibility Guidelines developed by the Department of Housing and Urban Development (HUD) with respect to designating handicap parking.

Once clear rules and restrictions are in place, condominium boards should develop effective enforcement measures, which will typically include warnings, fines (typically using a graduated scale that increases commensurately with each violation, but consistent with statutory constraints), and towing.  The bylaws or rules pertaining to towing should allow for the association to assess the costs to the corresponding unit owner, and towing notices and requirements must strictly comply with Florida law.

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MichaelChapnicksrhl-law-200x300Firm partner Michael E. Chapnick has written extensively in this blog and several publications on the nuisance and security issues that have been caused by Pokemon Go, the augmented reality game in which players search the real world for characters that appear on their smartphones.  In the latest issue of the Community Associations Institute’s Common Ground magazine, he is quoted in an article on the topic titled “Pokemon Woe.”  The article reads:

If Pokémon Go players are being noisy or creating other disturbances, associations should check their nuisance provisions.

“If you don’t have good nuisance or antinuisance provisions, then those need to be beefed up,” says Michael E. Chapnick, a lawyer with Siegfried, Rivera, Hyman, Lerner, De La Torre, Mars & Sobel in West Palm Beach, Fla. “It’s a violation like any other violation. You have to enforce your documents and address any issues.”

Chapnick says associations should be applying their existing rules to a changing world.  “The rules are made to be fluid and made to be flexible,” he adds.

Our firm congratulates Michael for continuing to be one of the most outspoken community association attorneys on this topic.  Click here to read the complete article in the organization’s website (registration required).