Articles Posted in Enforcement Actions

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).

 

The South Florida condominium association that I wrote about in this blog recently after it was featured in a local TV news report on its problems being caused by Pokémon Go players has now filed a class action lawsuit against the makers of the immensely popular game app.

As was documented in the recent report that appeared on Local 10 News (WPLG-ABC) in Miami-Dade and Broward, the oceanfront Villas of Positano in Hollywood, Fla. has essentially been besieged by crowds of people every night who are playing the “augmented reality” game.  The 62-unit condominium tower has been designated as a PokéStop in the game, which the lawsuit alleges has led to “out of control crowds” behaving “like zombies, walking around bumping into things” where the property adjoins the public boardwalk along the beach.

The complaint, which was filed recently in the U.S. District Court for the Northern District of California, is one of several similar new lawsuits against San Francisco-based game developer Niantic and the two other companies behind the game.

pokemonThe lawsuit states that players have been drawn to the Villas to capture rare Pokémon characters that are programmed to spawn when they are first released to the public at 3 a.m. EST.

The suit states that the Pokémon Go players linger for hours, litter, and many even use “the Villas’ landscaping as a toilet during their nightly incursions.”  It notes that the association has made multiple requests to Niantic for the property to be removed as a PokéStop but has only received form responses.

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MichaelChapnicksrhl-law-thumb-120x180-94116Firm partner Michael E. Chapnick authored a guest column that appeared in today’s edition of the Daily Business Review, South Florida’s only business daily and official court newspaper.  The article, which was titled “For Many Condo Communities, Pokemon Go Quickly Becoming Pokemon No,” discusses some of the security, safety and nuisance issues that are arising as a result of the popular new game app for smartphones.  Michael’s article reads:

The issues arise both from nonresidents who are pursuing these animated characters and feel compelled to enter a property as well as from residents and their guests who are gallivanting through the hallways and common areas at all hours in their never-ending search for more Pokemon.

While some association complexes feature a manned security gate at the main entrance, many do not and visitors are able to drive onto a property without restriction. The game does remind players to be aware of their surroundings and not to trespass, but it also encourages them to visit new locations. Some players are now simply driving up to condominium entrances and trying to see if they could perhaps even park and walk around to check for any nearby Pikachu, one of the characters. Needless to say, this creates significant security and liability issues for properties.

dbr logo-thumb-400x76-51605In addition, the hallways, pool decks and other common areas that are accessible to residents and their guests around the clock are quickly becoming gathering grounds for the players of the game, which features “lure modules” and virtual gyms to encourage them to meet and wage battles with their Pokemon. These aspects of the game lead to players congregating at all hours, which is causing significant nuisances and safety concerns for some communities’ residents and staff.

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The recent report by Local 10 News (WPLG-ABC) in South Florida about a Hollywood, Fla. condominium association that is considering filing a lawsuit against the maker of the Pokémon Go game app came as no surprise to our firm’s community association attorneys.  We are now starting to hear from many of our condominium and homeowners association clients about their distress regarding the nuisances and potential security and liability issues that are arising as a result of the game and its players.

The station reports that the condominium association for the Villas of Positano is considering legal action to combat the throngs of Pokémon Go players who flock to the beachside building in the early morning hours.

The issue for the property is that it is a “PokeStop” for the popular game, meaning that the virtual monsters which the players are trying to find can be found at the entrance to the property that adjoins the public boardwalk along the beach.  Rare Pokémon monsters are released at midnight Pacific Time, so at 3 a.m. EST hundreds of players make their way to the condominium’s doorstep.

The property manager is quoted in the report indicating that the players urinate in the bushes in the property, litter and make a great deal of noise, which disturbs many of the residents.

The report indicates that Hollywood police are aware of the problem, but they have said that those who remain on the boardwalk and do not cause a disturbance are not breaking the law.  However, unfortunately for the association, many of the players are infiltrating its property in their search for the virtual characters.

The association is considering joining a class-action lawsuit or filing one of its own because the game’s maker has yet to remove its location as a PokeStop.

In addition to the problems arising from nonresidents, our firm’s other attorneys and I have been made aware that there are also issues arising caused by residents and their guests who are gallivanting through the hallways and common areas at all hours while playing.  The game features “lure modules” and virtual gyms to encourage players to meet and wage battles with their Pokémon, so players are interrupting their searches to congregate and play it together in the common areas.

Boards of directors are now beginning to address these issues.  Many are starting by issuing a bulletin to all of the owners, residents and staff reminding them that excessive noise in any of the common areas – including from Pokémon Go players – creates nuisances that are in violation of association rules, and building management/security should be contacted if any such nuisances arise so that immediate action may be taken.

Management, security and valet staff are also being tasked to maintain a high level of vigilance for nonresident players attempting to infiltrate the property as well as for residents and their guests creating disturbances while they are playing.  Other considerations include restricting access to lobbies and common areas during nighttime, checking to make sure the association has sufficient insurance coverage, and even adopting rules governing the times of day that the game (and others like it which are sure to come) can be played in the common areas.

Click here to watch the report in the station’s website.

The problem of short-term rentals with the help of Airbnb and other similar websites in violation of community association rules has quickly become one of the most pressing issues facing associations today.  Even though Airbnb, HomeAway and VRBO claim they prohibit their hosts from renting residences in communities with rules against short-term rentals, enforcement of this policy by the online home sharing providers is virtually nonexistent.

This makes it incumbent upon the associations and their property managers to proactively monitor and investigate for unauthorized rentals and their online listings, which can be extremely difficult.  In most cases, the unit owners conducting the rentals know full well that they are violating their association’s rules, so they do what they can to avoid detection.

abnbTheir ploys, which typically include walking their new guests into the property and advising security that their visit is authorized, are enabling many rentals to go undetected by management and staff.  The result can be very troubling for associations, as unfettered short-term rentals can create a revolving door for guests with none of the prior screening and background checks that are typically performed for new residents and tenants.

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A recent news report by WFTV Channel 9 (ABC) in Orlando focused on the accounts of some of the residents of the Cypress Head at the Enclave gated community in Oviedo indicating that the HOA has neglected to take action against a homeowner whose tenants are creating an extreme nuisance.

A resident is quoted in the report indicating that the HOA has neglected to adequately address the problems being caused by his neighbors, who are University of Central Florida students.  He claims that they urinate in his yard, where he has even found discarded condoms, and his photos and videos documenting the large piles of trash and vehicles parked on the sidewalks from their many “wild parties” are included in the report.

The resident indicates that he has attempted to resolve the matter via mediation with the homeowners association to no avail, and he has since received a letter from its attorney indicating that compliance has been met.

The resident’s attorney tells the reporter that they will be filing a lawsuit against the homeowner and the HOA, and judging from his clients’ photos and video showcased in the news report it appears that may have a strong case.

The takeaway from this episode for HOAs is that they would be wise to be very diligent in their efforts to effectively contend with residents who are creating a nuisance for their neighbors.  In addition to the prospect of litigation, the HOA in this case was also hit with an extremely negative news report by one of its local TV stations, and such a report can adversely affect the community’s reputation and property value.

Every four years, as presidential elections heat up, condominium and homeowners association communities throughout Florida are faced with the issue of political signs being posted in front yards, on balconies, in windows and on and around the common areas.  Association attorneys are often consulted, and most would advise associations to be extremely careful with how they create and enforce restrictions that prohibit political expression.

Most associations’ governing documents include restrictions that prohibit residents from posting signs anywhere on the unit or the property.  Political signs, however, give rise to issues of freedom of speech, which is protected by the First Amendment.

The key for associations to remember is that restrictions on freedom of speech under the First Amendment apply only in governmental or public settings, so community associations, as private non-governmental entities, are allowed to restrict signage, including political signs, in accordance with their corresponding state law.  Some states have enacted legislation specifically addressing the issue, but Florida has not and neither has the state’s Supreme Court addressed the issue specifically.

psigns

As a result, Florida’s associations are able to enact and/or enforce rules and restrictions governing the display of political signs by their members, but they are cautioned to do so very judiciously and under the watchful guidance of highly experienced association legal counsel.

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For most homeowners association communities, one of the primary functions for the associations in their enforcement of the community’s declaration is ensuring that all of the homeowners are maintaining the exterior appearance of their property.  Poorly maintained homes detract from a community’s appeal and diminish its property values, and HOAs are charged with conducting all of the necessary enforcement actions in order to consistently and fairly ensure that all of the homeowners in their community are doing their part.

A ruling earlier this month by the Fourth District Court of Appeal reinforced an HOA’s ability to have its homeowners remedy a violation of the community’s declaration involving the appearance of their home.

In the case of Hibbs Grove Plantation Homeowners Association v. Avraham Aviv and Helen Aviv, the HOA notified the Avivs that their home was not in compliance with the community’s declaration due to their failure to remove mold/mildew from the exterior of their residence.  The notice referenced the declaration’s caveat that “exterior surfaces and/or pavement, including, but not limited to, walks and drives, shall be pressure treated within thirty (30) days of notice by the ACC [Architectural Control Committee].”

The Avivs responded by hiring a company to pressure clean the exterior of their house and supplied the HOA with written proof that the job had been completed, but the association went on to file for injunctive relief.

mmonhomeThe trial court then granted the homeowners’ motion for final summary judgment, finding that they fully complied with the association’s demand to pressure clean the exterior of their home.  In its filing in opposition to the summary judgment, the association emphasized the deposition testimony of the Avivs in which they acknowledged that after the pressure cleaning some “stains” remained.  The association argued that “the relief sought by way of injunction in this case has not been obtained since the marks and/or the stains remained after the filing of the complaint and/or continue to exist.”

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Roberto C. Blanch

Roberto C. Blanch

Firm partner Roberto C. Blanch was quoted by reporter Carla Vianna of the Daily Business Review, South Florida’s only business daily and official court newspaper, in an article that appeared in today’s edition about the issues facing community associations involving short-term rentals via Airbnb.  The article reads:

Guests hoping to stay at a condo during the Miami Open tennis tournament found themselves stuck in a lobby with no access to the unit they rented on Airbnb, the online home-sharing service.

The family was denied keys to the property by the condominium’s management company.

. . . Miami-Dade County’s sunny beaches and high-rise condos make it a top destination for home-sharing networks like Airbnb and its users. The influx of visitors opting for alternatives to Miami’s pricey hotel rooms, like the family visiting for the Miami Open, is pushing demand for short-term rental options.

An estimated $2.4 billion was spent on lodging via Airbnb during the year ended in September 2015, commercial real estate firm CBRE Inc. reported. More than 55 percent was captured by five U.S. cities: New York, Los Angeles, San Francisco, Miami and Boston.

The rise of a sharing economy is creating a rift between condo owners looking to make extra cash and association boards whose members don’t want to share an elevator with strangers.

. . . “It has become a problem in a lot of condos,” said Roberto Blanch, a Miami attorney with Siegfried, Rivera, Hyman, Lerner, De La Torre, Mars & Sobel.

dbr logo-thumb-400x76-51605Associations at Mint and Ivy, two high-rise towers in downtown Miami’s Riverfront complex on the Miami River, are cracking down by restricting elevator and garage access to residents with a specific key fob or vehicle barcode, said Ari Tenzer, founder of the Tenzer law firm. Tenzer, who sits on his condo association board, said property managers are logging onto the Airbnb site themselves to catch violators.

Suspected violators receive written notice as a warning. They could also be called before a grievance committee.

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