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Articles Posted in Homeowners association law

Eduardo-Valdes-srhl-lawAn article authored by firm partner Eduardo J. Valdes is featured in the op-ed “Opinions” page of today’s South Florida Sun Sentinel.  The article, which is titled “Post-Surfside, condo associations must be proactive with change | Opinion,” focuses on the impact that the horrific tragedy of the Champlain Towers South collapse has had on the condominium associations for similar towers nationwide and their boards of directors.  Eduardo notes that in addition to the shared grief and remorse with the families and friends of all the victims, many condo owners across the country are now raising questions about their own buildings’ structural safety and financial health, and some have also begun to feel more concerned about the funding of reserve accounts for major repairs and replacement projects.  His article reads:

 . . . All buildings deteriorate over time, so associations should always set aside funding on an ongoing basis to mitigate and remediate any structural elements that require attention.

As they begin reassessing their associations’ commitments, condominium boards of directors will generally try to avoid special assessments demanding additional funds from all the unit owners. They will need to consult with legal, financial, engineering and insurance professionals to strike a balance between the funding of reserves and the use of special assessments when they become necessary from a life-safety standpoint.

Sun_Sentinel_Logo-300x97Condominium association directors and unit-owner members would also be well advised to come to terms with the new reality that future buyers will now have many more questions and concerns than in the past about the financial health of the association and current state of the actual property from the ground up. Some will surely request that sellers provide them with the minutes from prior board meetings, information on any past or planned special assessments, the status of renovation and remediation projects, past changes to the monthly assessments over the years, the findings of past reserve studies, and the status of current reserve funding. They are also now more likely to conduct a thorough visual inspection of the entire property prior to making a written offer.

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Florida community associations typically have the right under their governing documents to regulate and approve leases and tenants. However, some association boards of directors are under the misconception that they can easily develop and implement new leasing restrictions via a board vote, and that they have the authority to approve or reject prospective tenants as they please without facing any scrutiny of their decisions.

As my colleague Laura Manning-Hudson wrote in this blog in her June 9 post titled “Suit Against Boca Condo Association Spotlights Importance of Governing Document Amendments, Filings,” a lawsuit filed earlier this year against Boca Pointe Condominium Association highlights the importance of properly adopting leasing restrictions to an association’s governing documents and recording them in the local court registry where the association is located.

Residential-lease-agreement-300x199According to the suit, the association’s new leasing restriction, which it apparently adopted via a simple vote of the board the directors, was never approved by all the unit-owner association members via a formal vote. The only leasing restriction in the association’s recorded declaration states that owners are only restricted from renting units for terms of less than thirty days, contradicting the new restriction that the board tried to implement. If the allegations in the lawsuit hold up in court, the association could be forced to pay the plaintiff unit-owners’ lost rental income and legal bills.

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Security cameras in community associations, especially in sprawling HOA communities with gated entries and considerable common areas, help to provide residents and guests with an added measure of peace of mind. However, there are important privacy considerations for associations seeking to install surveillance systems, and there are also questions about whether these systems may constitute material alterations that must be approved by a vote of an association’s membership.

In general, community associations are allowed to install and utilize security cameras to monitor their common areas. The most important limitation in their use is that the cameras should not be positioned to view areas in which residents may reasonably expect a level privacy, such as restrooms, locker rooms, and private dwellings or backyards.

Another important consideration is whether the deployment of security camera systems constitute a material alteration which may require a vote of the association’s voting interest. Decisions over this issue in arbitrations before the State of Florida’s Division of Condominiums, Timeshares and Mobile Homes have held that security camera installations may be considered material alterations. Therefore, unless an association’s specific governing documents provide otherwise, they may first have to be approved by a vote of the owners, which in some cases may be at least 75 percent of the membership. Some association governing documents require less than the statutory 75 percent threshold to approve a material alteration, and some only require membership approval when the cost of the alteration exceeds a specific amount.

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The Florida Legislature made Covid-19 civil liability protections for businesses, healthcare providers, non-profits, and other organizations a major priority for the 2021 session, and on Monday, March 29, it became the year’s first bill signed into law by Gov. Ron DeSantis. SB 72, the bill that provides several Covid-related liability protections for businesses, healthcare providers, educational institutions, government entities, religious institutions, and not-for-profit corporations such as community associations, is now the law in Florida.

Under the new law, covered entities will be shielded from civil liability for Covid-related lawsuits for monetary damages, injuries or deaths so long as the allegations do not involve gross negligence or intentional misconduct.

Flalegislature-300x169As of March 29, Florida community associations that have implemented measures to safeguard their residents and staff from the potential spread of Covid-19 in their communities and comply with local, state and federal guidelines are protected from liability for Covid-related lawsuits.

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There are several bills being debated by state lawmakers in the current legislative session that will impact Florida community associations. The most significant proposed legislation for associations is also one of the most important for many of the state’s businesses.

HB 7, which creates COVID-19 liability protections for Florida businesses and nonprofit organizations, including community associations, has cleared its first committee stop with an 11 to 6 vote. Its advocates contend the measure is a necessary component to Florida’s economic recovery. Flalegislature-300x169The Florida House Speaker has vowed to make the bill a priority. Its next stop is the House Health and Human Services Committee.

One of the other measures that community association industry watchers are tracking is HB 21. House Bill 21 revises the requirements for construction defect causes of action relating to certain violations, and revises provisions relating to the requirements for notices of claim, property inspections, and service of copies of notices.

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Recent TV news reports of wild hogs invading several Florida communities in Manatee County reveal a serious problem that requires a considered and measured response.

The reports, which aired in recent newscasts in the Tampa Bay area by WFLA and WTSP, chronicle daily sightings and incidents of packs of wild pigs at the River Club community and surrounding neighborhoods (see photo from homeowner below).

Community resident Phil Pape says that in October and November the problem became seriously out of control. He and several of his neighbors tell the stations’ reporters that the wild pigs are wreaking tens of thousands of dollars in damage to their properties. The hogs tear up lawns and landscaping in search of food underneath the turf, replacing pristine lawns with a muddy mess.

“My neighbor next door, three-quarters of her property is all torn up,” states Pape, who notes that the hogs had been eating acorns in another neighbor’s property and he’s seen packs of as many as 30.

hogs1-300x200Homeowner Bob Lapp notes that he and other homeowners have been racking up damages around their homes, but they don’t want to fix everything until they know it won’t happen again. “The hard part is the fact that you could spend $1,000 today and wake up tomorrow morning and it would be all over again,” agrees Pape.

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Jeffrey-Berlowitz-Siegfried-law-firm-200x300An article by firm shareholder Jeffrey S. Berlowitz was featured as the expert guest commentary column in the Business Monday section of today’s Miami Herald.  The article, which is titled “Community Associations Must Cope with a Coming Wave of Unit-Owner Bankruptcies,” focuses on how associations must be prepared to contend with an expected spike in bankruptcy filings by those who lost their jobs and businesses due to the pandemic.  His article reads:

. . . Even with the massive COVID-19 economic fallout, bankruptcy filings in 2020 so far trail those from last year, thanks in large part to the federal stimulus package and state moratoriums on foreclosures and evictions. The additional $600 per week in supplemental unemployment assistance, on top of the national average state unemployment benefit of $340/week ($275 per week maximum for up to 12 weeks in Florida), meant that many individuals who lost their jobs were suddenly receiving more money than when they were working.

MHerald2015-300x72This supplemental federal benefit expired in July and was replaced by an allocation from the Federal Emergency Management Agency for $300 or $400 per week, depending on states’ participation and contributions, which was paid retroactively from August 1 for up to six weeks. With no more federal aid apparently forthcoming, economists predict consumer bankruptcy filings are bound to rise.

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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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Laura-Manning-Hudson-Gort-photo-200x300An article by firm partner Laura Manning-Hudson 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 “Signs, Signs Everywhere: It’s Time for Community Associations to Address Sign Policies,” discusses recent news reports from around the country that are indicative of an uptick in disputes within HOA communities involving homeowners’ yard signs.  Laura writes that today’s polarized political environment and social movements combined with widespread societal cabin fever caused by the pandemic have seemingly created a perfect storm for tempers to ignite over political and solidarity signs, and she offers helpful suggestions for how HOAs should respond.  Her article reads:

. . . In Macomb Township, Michigan, a couple has been quoted in a local TV report alleging they were singled out by their HOA to remove their Black Lives Matter signs while the association seemingly permitted their neighbors to post other similar signs supporting politicians and local schools.

psignsReports involving HOA disputes over BLM signs also made local TV and newspaper headlines in late July in the San Francisco bay area and New Albany, Ohio, where an HOA issued an apology to its residents after it posted a deadline for the specific removal of BLM yard signs on its social media pages.

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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-diamondRosenthal 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.

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