Articles Posted in Enforcement Actions

Our firm’s other community association attorneys and I have all seen our fair share of disputes arising from unapproved property improvements in South Florida HOA communities over the years. However, the saga involving a diamond design in a homeowner’s driveway at the Equus community just west of Boynton Beach appears to be exceptionally combative, so much so that it drew the attention of the Palm Beach Post.

According to a recent article from the newspaper, the HOA has been trying to have homeowner Barry Rosenthal remove the decorative red diamond design (see photo below) for more than three years. Both parties appear to be very deeply entrenched in their positions.

In its lawsuit, the HOA claims the driveway design “was not in conformity with other approved driveway designs throughout the community.” driveway-diamond Rosenthal had it installed as part of his new driveway project in 2017 without obtaining the HOA’s prior approval, and he was subsequently fined $1,000 and lost his usage rights to the community’s amenities, which include tennis courts and a fitness center.

February 6, 2020

Compulsive Vulture, Alligator Feeder Settles for $53K with HOA

Readers of this blog may recall my recent article about a resident of the Ibis Golf and Country Club community in Palm Beach County who was creating an incredibly dangerous and destructive situation by feeding extraordinary amounts of food to vultures, alligators and other wildlife behind her home. On Wednesday, Jan. 15, the homeowner agreed to pay $53,000 to settle a lawsuit brought by her community’s association.

In addition to the payment for the association’s fees and fines that is due by Feb. 14, Irma Acosta Arya was also permanently enjoined from any further feedings, meaning the court has issued an injunction against her prohibiting any future feedings under severe criminal and civil penalties.

According to a follow-up report on the case in the Palm Beach Post, the payment and injunction represent a great relief to the residents of the gated golf community, which borders a nature preserve in western Palm Beach County.

The suit alleged that Acosta Arya’s constant feedings of large quantities of food since 2016 attracted highly destructive flocks of vultures, which would vomit and defecate all over the community and neighboring properties (see video below from WPBF Channel 25 News), along with raccoons, alligators and a bobcat. The judge initially issued a temporary injunction to prevent any further feedings, and he found Acosta Arya in contempt of court in December for violating the injunction after the association presented photos allegedly showing her feeding animals behind her house in recent months.

December 18, 2019

Considerations for Practical Parking Solutions in Congested Communities

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.

In 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.

November 13, 2019

Homeowner Feeding Wildlife Leads to Black Vultures Overwhelming Parts of West Palm Beach Community

Recent reports in the Palm Beach Post and on WPBF 25 News (see video below) chronicled the devastating damage that is being caused to homes in the Ibis Golf and Country Club community in West Palm Beach by hundreds of black vultures. The large birds are being attracted by a homeowner who is feeding the wildlife with massive amounts of food.

The vultures fly in for their regular feedings and then stay to roost on and around the surrounding houses. Hundreds of the birds have torn apart screened enclosures and made themselves at home in neighboring pools and patios, and they have even dented residents’ vehicles with their beaks.

“The vultures just vomit everywhere,” says a homeowner in the newspaper’s article. “Defecating and vomiting. It’s just gross.”

Another homeowner who lives next door to the lady who feeds the birds says that after the vultures tore into her pool enclosure, they became trapped and began attacking each other. “Imagine 20 large vultures trapped, biting each other — and they can bite through bones,” she said. “They would bang against my windows running away from a bird that was attacking them. Blood was everywhere. It was a vile, vicious, traumatic event.”

November 4, 2019

Association Rule Blamed for Tragic Death of Resident Sends Message to Communities Nationwide

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.

The 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.

August 9, 2019

Condo Association Strategies, Services to Address Short-Term Rentals

Condominium associations and HOAs throughout South Florida as well as across the country are seeking effective responses to the problem of short-term rentals that are in violation of their rules and restrictions. These unauthorized rentals, which have become prevalent with the growth of Airbnb and other online home-sharing platforms, 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.

As many associations have already realized, enforcing rules and restrictions against short-term rentals can be very challenging. Savvy unit owners have been known to sneak their transient guests into properties by advising security that their visit is authorized.

As such, enhanced vigilance and guest-screening measures have become necessary, and many associations have developed and implemented new registration forms for use with guests and tenants along with written assurances and noncompensation statements indicating they are not paying for their stays.

That may not go far enough for some associations with owners who are highly determined to rent their units. For some, it has become necessary to retain a private investigator to gather and document incontrovertible proof that restricted rentals are taking place. Licensed private detectives can effectively investigate homeowners and tenants in violation of association bylaws and CC&Rs that prohibit turning units into short-term vacation rentals. Also, court actions may become necessary against some unit owners who flout the rules, and the evidence obtained by these investigators as well as their testimony can be very helpful in these proceedings.

June 17, 2019

Talk About a Condo Commando! Director Fires Gun to Shoo Away Teens from Pool

“I’m putting my own life at risk!” That’s what an Ormond Beach, Fla. homeowners association director is reported to have said after he fired his gun into the ground in an effort to shoo away two teenagers from the community pool.

Thankfully, nobody was hurt in the incident, which resulted in the arrest of Richard S. Marcelle, 66 (pictured below), for three counts of aggravated assault with a deadly weapon without intent to kill and discharging a gun in public.

According to reports in the Daytona Beach News-Journal and local television stations, the encounter took place at approximately 9:15 on the evening of April 22 when Julian Johnson, an 18-year-old resident of The Village subdivision, and a younger friend visited the community pool. Marcelle, who is a member of the HOA’s board of directors, approached and informed them that the pool was closed.

When Johnson noticed a sign indicating the pool is open until 10 p.m. as he and his friend were exiting, they pointed it out to Marcelle. Apparently, residents had not yet been notified, and new signs had not been posted, announcing a recent change to the pool hours.

As they attempted to re-enter the pool area, the association director intercepted them and brandished a handgun, which he then fired into the ground. One of the teens then asked: “Did you really just shoot a gun?” Marcelle’s response: “Yes, I am putting my own life at risk!”

May 28, 2019

Wrongful Death Lawsuit Illustrates Potential Repercussions of Inadequate Enforcement for Community Associations

The horrific murder of an 11-year-old Las Vegas girl stemming from a shooting into her home, which had been mistakenly targeted by local gang members, has led to a wrongful death lawsuit against the homeowners association and property management firm. The tragic case delivers a very clear and important message for community associations contending with problem residents who may pose a threat.

The shooting last November was caught on surveillance video, which shows multiple assailants firing indiscriminately into the home where Angelina Erives lived with her mother, step-father and two sisters. The shooters were confused as to the location of their intended target, which was a home two doors down the street, when they killed Angelina (pictured below in family photo provided to media).

Erives According to statements of the attorney for Angelina’s mother and siblings in several news reports, the neighboring property had been occupied by as many as 20 different tenants and the police had been called to that property on numerous occasions. The homeowners association and property management company were aware of the problems and had been in communications with the owner of the home. However, the association’s apparent enforcement of the community’s covenants, conditions and restrictions fell short of evicting the problem residents.

April 10, 2019

Stricter Disciplinary Penalties for Florida Community Associations Now in Effect