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Articles Posted in Homeowners association law

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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Community associations in Florida contending with fraudulent emotional support animal (ESA) requests may get some relief. Governor DeSantis signed SB 1084 into law on June 23, 2020.  The new law prohibits discrimination from housing providers to someone requiring an ESA, but also prohibits health care practitioners from providing information regarding a person’s need for an emotional support animal without having personal knowledge of the person’s need for the animal.

The law, which becomes effective on July 1, 2020, requires a patient to establish the need for an ESA by delivering to the housing provider supporting information from a licensed healthcare practitioner, a telehealth provider, or other similarly licensed practitioner, including an out-of-state practitioner who has provided in-person care or services to the patient on at least one occasion.  esupdog-300x234It is important to keep in mind that the in-person requirement is only for establishing the disability, not for establishing the need for an animal.  Housing providers may establish a routine method for receiving and processing ESA requests. However, they cannot require the use of any specific forms, deny a request solely because the resident did not follow their methods, or request information that discloses the diagnosis or severity of the resident’s disability.

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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.

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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.

npark-227x300In 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.

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Community associations in Florida are required to provide owners with access to the association’s official records within 10 working days after receiving a written request from a unit owner or the owner’s authorized representative.  Given such a statutory mandate, it is not so uncommon for associations to receive requests to inspect financial and accounting records, contracts, certified copies of plans, permits and warranties provided by the developer or any other contractor, as well as copies of the declaration, articles of incorporation, bylaws, rules and regulations, and insurance policies.

Associations should be prepared to respond to requests to inspect official records by utilizing strong document management and retention policies.  For large associations, records should be cataloged and preserved using third-party cloud services for offsite storage and backup.  These systems can be set to automatically backup and store association records at regular intervals.

One of the simplest ways for associations to keep a thorough and searchable archive of important email communications with property management, attorneys, insurance brokers and others is to utilize a single association board email address as the sender and/or copied recipient of all such messages.

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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.”

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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.

tgersten-225x300The 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.

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A recent article by the Marco Eagle newspaper reported that the Marco Island Code Enforcement Magistrate recently issued $1,000 fines to three condominium associations for violating sea turtle lighting restrictions.  For one of the properties, it was the second such violation in consecutive months.

The violations involved lighting in the pool areas that reflect on the oceanfront buildings.  These lights could potentially disorient turtle hatchlings, causing them to move away from the shore.

sturtle-300x200The newspaper report also noted that the city’s code enforcement office had recently issued $1,300 in fines against six condominium associations for violating sea turtle lighting restrictions.  To date, the municipality has issued 45 notices of violation during the 2019 sea turtle season, 25 more than in 2018.

The article also states that a local condominium resident recently posted in a Facebook group that she found a dead sea turtle hatchling inside of a Ziploc-type plastic bag in her building’s lobby accompanied by a note reading:  “This is what you get when you don’t close the blinds.  They crawl towards the light.”

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Requests by unit owners to review official records of their community association should not present any difficulties for Florida condo associations and HOAs, yet records requests often become needlessly contentious.

Associations in the state are required to allow access to their official records within 10 working days after receiving a written request from a unit owner or their authorized representative.  They may establish reasonable rules specifying the frequency, time, location and manner of record inspection and copying, but they cannot deny access.  Those that fail to comply may be subject to compensate the requesting owner with a minimum of $50 per calendar day beginning on the 11th day after receiving the written request.

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Changes and shakeups on community association boards of directors are common in Florida, and since the legislature has imposed term limits for association directors, communities are likely to see an even greater level of transitions to new board members in the years to come.

While it is still common to see the same directors serve year after year on association boards – mainly due to lack of participation – this practice does not present an ideal scenario for change. In a perfect world, board transitions should take place incrementally over time, enabling new board members to get up to speed on all the matters that are currently pending before the association with the help and guidance of experienced incumbent directors.

meet-300x166Wholesale changes to replace entire boards with new directors are never the best approach, yet unfortunately such total transitions do occur from time to time. Whether it is a board recall after a questionable election or a total overhaul election following some tempestuous controversy implicating the prior board, the new norm is entirely new boards comprised of completely novice board members taking over control from one day to the next.

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