Articles Posted in Homeowners association law

RobertoBlanch2013As leaders in the field, our firm’s community association attorneys are often contacted by journalists for their insights into timely issues involving condominium associations and HOAs.  The latest example of one of our partners serving as an industry source on association topics comes in an article featuring quotes and analysis from Roberto C. Blanch that appears on the front page of today’s Daily Business Review, South Florida’s only business daily and official court newspaper.

The article focuses on a complaint to the U.S. Department of Housing and Urban Development against a Florida condo that is accused of religious discrimination for prohibiting prayers and religious meetings in its social rooms.  The association for the Cambridge House condominium in Port Charlotte is alleged to have violated the Fair Housing Act when its board voted to forbid religious meetings in the common rooms.

Dunbar_Piano_ImageThe complaint, which was filed earlier this week, is on behalf of resident Donna Dunbar against both the association as well as its management company.  It states that as a lay minister in the Seventh Day Adventist Church, Dunbar led a women’s Bible study group with about 10 women, including Cambridge House residents and guests, in a common room for two hours on Monday mornings, but the board of directors voted Feb. 6 to prohibit prayers, religious services and religious meetings in the common areas.  It then posted a sign on an organ in the lobby reading “ANY AND ALL CHRISTIAN MUSIC IS BANNED!”.

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A recent newspaper report about squatters in condominium units illustrates the level of vigilance that associations and their property management must employ to prevent any unauthorized uses of their residences.

The article in January by the Citrus County Chronicle documented the case that took place at The Islands condominiums in Crystal River, Fla. (pictured below).  Work on the residences in the community became necessary due to extensive damage caused by Hurricane Hermine in September 2016, and it had been progressing well until several unit owners discovered workers were staying in the units without permission.

ilndscndo-1024x668It began when one of the owners noticed wet floors near the shower and other indicators that the construction workers were not just replacing cabinets or working on the carpets.  He and a neighbor later found workers sleeping overnight in the condo unit of another owner who did not know they were there, so they called the police. Continue reading

Just as with the “sunshine” laws mandating public access to the decision-making processes within the state government of Florida, community associations have their own sunshine laws to ensure that unit owners are able to monitor and participate in their governance.  These laws, which include the owners’ right to attend and record board of directors’ meetings as well as to speak on agenda items at the meetings, are brought into play in the association context when a quorum of the board of directors meets to discuss association business.  As such, directors must always remain mindful of the fact that they should avoid discussing association business, or making decisions on behalf of an association, outside of properly noticed meetings. Continue reading

Community associations often have to wrestle with challenging issues and areas of concern that can be extremely difficult to remedy.  While directors are charged with developing appropriate rules and regulations to solve all of the difficulties that may arise, without the proper guidance from highly experienced and qualified management and legal professionals they can easily make the mistake of over-reaching with responses that wind up doing more harm than good.

Such appears to be the case with the California association that made national headlines recently for its reaction to its discovery that an owner was allowing tenants to reside in their converted garage.  To address the problem, the association for Auburn Greens in Placer County taped notices on all of the residents’ doors informing them that their garage doors must be kept open from 8 a.m. to 4 p.m. Monday through Friday, effective immediately, with violations resulting in $200 fines and an administrative hearing.

bad-garage-300x225As one would imagine, the outcry from residents was severe.  Residents had legitimate security concerns about the rule, which left them without any effective means for protecting their belongings in their garages during the day.

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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.

Continue reading fairly common problem area for homeowners association communities is the use of lawn signs by residents, especially during election season.  When HOAs attempt to crack down on the use of signs in accordance with their governing documents, they sometimes become the subject of unfavorable media attention.

Such was the case recently in St. Cloud, Fla. near Orlando when an HOA’s battle with some of its homeowners over a yard sign supporting law enforcement became one of the lead stories by the local Fox Network television affiliate for Central Florida.  According to the report, the Burgess family’s “Back the Blue” yard sign supporting the police in the wake of two Kissimmee officers being shot and killed in the line of duty became the subject of a major brouhaha with their association.  Dozens of other residents began supporting them and displaying the same sign, which their association said had to go.

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Hurricane Irma is now a category five storm that is predicted to impact the state of Florida by late this week.  As all community associations prepare their properties for the storm, they should also take specific measures to prepare for any insurance claims that may arise.  Below is an excerpt from an article by firm partner Laura M. Manning-Hudson on these pre-storm insurance recommendations that was posted in this blog earlier this year:

At the start of every hurricane season, association board members or property management should photograph and/or video all of the main public areas of the condominium property.  These images could become vitally important in the event that a storm strikes and claims are filed.   Associations should also take the time to store copies of their wind, flood and property insurance policies in waterproof cases in a secure location.  If possible, digital copies should also be stored in several computers and devices.

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Florida community associations, just as with all other property owners in the state, can be held liable for crimes committed on their properties.  Associations and other property owners owe a duty to their residents and guests to undergo reasonable steps to protect against foreseeable crimes.

There have been cases over the years of Florida associations being sued by the victims of crimes that took place in their community for allegedly failing to implement adequate security measures.  Some of these suits, especially those involving severe injuries, have been resolved in considerable rulings or settlements in favor of the victims.  These awards, combined with the litigation costs and the possibility of increased insurance premiums, can be financially disastrous for many associations.

ggate-300x225Exactly what is considered reasonable security is the key question before the courts in these negligence claims. Other considerations include whether the crime that took place was foreseeable.  For instance, in a gated high-end community, residents and guests may expect a greater level of security, so some might argue that such community is to take measures at a higher standard.

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The new Florida law that establishes criminal penalties for association fraudsters should help many associations to contend with suspicious and irregular activities by unscrupulous board members.

Association boards of directors control the purse strings for their condo communities, and as such they have always made for extremely appealing targets for fraudsters who conspire to assume control via their annual elections.  In a Las Vegas case, a U.S. Justice Department investigation revealed that 11 associations were defrauded of tens of millions of dollars in a board of directors takeover scheme from 2003 to 2009.  Forty-one defendants were convicted of rigging board elections through such tactics as traveling to Mexico to print phony ballots, using the master key at a condominium complex in order to remove ballots from mailboxes, and retrieving discarded ballots from condo dumpsters.

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Nicole-Kurtz-2014-thumb-120x180-87971The firm’s Nicole R. Kurtz 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 was titled “Short-Term Rentals Not a Violation of Rules Against Business, Non-Residential Uses,” focuses on the ramifications of a recent ruling by the First District Court of Appeal that found short-term rentals do not constitute a violation of association rules prohibiting business uses of residences.  Her article reads:

In the case of Santa Monica Beach Property Owners Association v. David Acord, the association appealed a lower court’s order dismissing its action against the homeowners who rented their homes on a short-term basis. The association’s argument in both the lower court and the appellate court was that such short-term rentals constituted a violation of the community’s occupancy restrictions, which required that the homes be used for residential, non-business uses. Specifically, the association’s argument hinged on the community’s occupancy restrictions, which provided that the plots “shall be used only for residential purposes … nor shall any building on said land be used as a hospital, tenement house, sanitarium, charitable institution, or for business or manufacturing purposes nor as a dance hall or other place of public assemblage.”

The association’s complaint for declaratory judgment alleged that the Acords’ two homes in the beachfront community were being used for a “business purpose” not permitted by the association’s occupancy restrictions, as the owners offered the homes for rent on the home-sharing site, received income for renting the properties on a short-term basis, were required to collect and remit state and local sales and bed taxes, and had obtained a license to operate their properties as transient public lodging establishments under the name “Acord Rental.”

The Acords responded by contending that the association’s complaint failed to state a cause of action, and that the short-term rental use of the homes did not violate the restrictive covenants. They argued that because the short-term tenants were using the homes for residential purposes, regardless of the fact that they were paying for their stays, the homes were being used in accordance with the community’s occupancy restrictions.

dbr-logo-300x57The trial court agreed with the Acords and dismissed the association’s complaint. It reasoned that the proper focus in making a determination as to whether the short-term rental of the homes was in violation of the association’s occupancy restrictions was to determine the actual use undertaken at the properties. The trial court found that the nature of the homes’ use was not transformed from residential to business simply because the owners were subject to regulations that required licensure and they earned rental income. The court also noted that because the restrictive covenants were silent on the issue of short-term rentals, and failed to provide for a minimum lease term, any ambiguity as to whether short-term use was permitted must be resolved in favor of the homeowners’ free and unencumbered use of their properties.

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