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Articles Posted in Homeowners association law

Community association board meetings are where the rubber meets the road for practically all association administrative matters. The agendas for these meetings and the minutes that ensue form a vital record of all the matters that have come before the directors of an association over the course of the entire lifespan of a community. Given the significance of the meetings, it is imperative for effective notes or “meeting minutes” to be kept to document all of the pertinent information from each and every official assembly.

As a general rule, meeting minutes should be thorough, but concise. They are not intended to be a transcript of everything said at a meeting.

Instead, the best approach is to start by listing the date, time and place of the meeting; listing the board members present/absent and additional participants such as the association property manager or attorney; and including the name of the individual taking the minutes. meet-300x166A copy of the agenda and notice should be attached to the minutes.

Once all of that is out of the way, the minutes should include a list of all the issues and reports that were presented and discussed at the meeting. For each issue which resulted in a motion, the minutes should include the exact wording of the motion, the names of the directors who made the motion and seconded it, and whether the motion passed or failed.

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LTLehr-2018-Siegfried-Rivera-200x300The latest edition of the firm’s Miami Herald “Real Estate Counselor” column appears in today’s edition of the newspaper and is authored by Lindsey Thurswell Lehr.  The article, which is headlined “Community Associations Should Consider Amending Their Amendments Process,” focuses on the inability for many community associations to amend their governing documents, and it suggests a possible solution.  Lindsey’s article reads:

. . . Declarations, covenants and bylaws are recorded in the local court registry and provided to all buyers prior to their purchase, as they essentially set the terms of the contract and serve as mini constitutions setting forth the rights and duties between unit owners and their association.

These governing documents are originally codified by a community’s developer, and they often include dated and problematic provisions that are in dire need of updating as communities grow and owners’ goals change.

However, amendments to an association’s recorded governing documents often require a vote of the unit-owner membership, and sometimes the documents demand a minimum approval of two-thirds or even three-quarters of all the owners for an amendment to be ratified.

LLehr-Herald-clip-for-blog-7-3-22-103x300Such voting thresholds are extremely difficult for most communities to achieve. In fact, many Florida communities have difficulty achieving the legally mandated minimum voter-participation requirements to conduct valid board member elections or hold membership meetings.

Indeed, changing the recorded governing documents is often significantly more difficult than matters requiring only a simple vote of the board of directors, but communities with troublesome and outdated provisions should still take the challenge head on and make it a priority.

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Given Florida’s nickname as the Sunshine State, it is only fitting that solar energy would be the state’s most popular and effective source of renewable energy. In fact, according to the U.S. Energy Information Administration, renewable energy fueled approximately five percent of Florida’s in-state electricity generation in 2020, and almost two-thirds of that came from solar.

It appears to be a sure bet that rooftop solar installations will be growing in popularity in the years to come for homeowners across the state. For those who own properties in communities with homeowners associations, internet searches will quickly reveal that Florida associations are prohibited by law from blanket denials of such installations. However, that does not mean that they do not have a significant say in the manner and form of solar panel installations in order to maintain the community’s aesthetic standards.

solar-panels-300x200The Florida Solar Rights Act protects homeowners who wish to install solar panels and other renewable energy devices on their property from outright bans. It provides that property owners may not be denied permission to install solar collectors and other renewable energy devices by HOAs or even local municipalities. The law expressly forbids binding agreements that limit access to renewable energy for dwellings.

However, the Act does allow for HOA architectural review boards and committees to determine the specific rooftop location where panels can be installed. Associations are therefore able to require homeowners to follow their set procedures for the prior review and approval of planned alterations and improvements. Review committees may request diagrams and information on the dimensions, location(s), and layout of proposed solar panels, including illustrations. They can also review and approve all the related wiring and electrical components, as well as the proposed height of the panels from the roof.

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For homeowners’ associations governing communities of single-family homes, one of the most difficult balancing acts to uphold is that of enforcement actions required against noncompliant homeowners over the physical state of their property. In the minds of many Americans, community associations have a negative perception and stigma for overzealous rules enforcement, but yet they cannot allow individual owners to flout important policies that help to maintain their communities’ property values.

After unsuccessful attempts to persuade an intractable owner to comply with the language provided in an association’s governing documents, the time may come to file a lawsuit against the violating member. While such action should not be taken lightly due to the potential costs and uncertainties of litigation, such lawsuits may be the only recourse left to associations facing obstinate owners who refuse to comply.

bbathandt-300x200Such appears to be the case with a recent lawsuit filed by the Boca Raton Bath & Tennis Club HOA against homeowner Lynn Min for alleged violations of several provisions found within the community’s governing documents. The suit, which was covered recently by www.BocaNewsNow.com, states:

“Owner is in violation of the provisions cited [in the governing documents] by virtue of their Property being in a state of disrepair, including a lack of maintenance to the home’s structure and roof, the exterior of the Property needs to be painted, the sod needs to be replaced, and the irrigation system is defective and needs to be repaired.”

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When it comes to coverage of community association disputes, nothing seems to draw the media’s attention more than quarrels involving the forced removal of unapproved family pets and service animals. One of the most recent examples is a report by CBS-12 News on a Boca Raton family that is fighting to keep its chickens and backyard coop, which they have maintained for the last 10 years.

The station’s report chronicles how the Ashley Park Homeowners Association has given Damir Kadribasic and his family a 14-day notice to get rid of the birds or start facing a fine of $100 per day. Kadribasic has retained an attorney and apparently intends to put up a fight. He says he has had the birds for the last 10 years with no complaints, and he showed the station a petition signed by his neighbors demanding that the HOA allow the chickens to stay.

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The family’s attorney says they were given a notice that consisted of a single sentence, and the association did not specify which bylaws were being violated. However, the station obtained a copy of the community’s bylaws, which do indeed state that only common domestic pets are permitted. To that, the owners’ attorney notes that the chickens are domestic because they are not being used commercially and are considered pets by the family. He also says that the HOA cannot selectively enforce its rules.

The station’s report concludes by noting that it asked the association for a response, but none was forthcoming. That was unfortunate for the HOA, because predictably the result was a one-sided report.  Click here to watch it on the station’s website.

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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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