Articles Posted in Homeowners association law

One of the key takeaways from Hurricane Irma was a reminder about the importance of keeping trees properly trimmed in order to avoid damage to power lines from downed foliage.  However, a recent report by Channel 7 News (Fox) in South Florida about a Hallandale Beach HOA’s troubles with the city over its allegedly exorbitant tree trimming serves as a cautionary tale for all Florida community associations.

According to the report, the insurance company for the Hallandale Village Homeowners Association asked association president Richard Masone to trim the trees around the property at the start of this year’s hurricane season.  Masone complied and asked the association’s regular landscape maintenance company to trim the trees.

hrack-tree-300x225The job pleased the community’s insurer, but Hallandale Beach Code Enforcement officers were not happy with the tree trimming.  City Manager Roger Carlton called the trimming unacceptable, noting that it “enormously exceeded any reasonable amount.”

The association was told by the city that the trees were “hatracked,” or over-trimmed, and they ordered the community to dig up and replace the trees, which entails hiring an arborist and pulling permits for each of the 10-15 trees that would need to be replaced.

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Some good news for community associations struggling with questionable requests for the approval of emotional support animals:  The Department of Housing and Urban Development is expected to issue revised guidelines later this year focusing on ESA requests and approvals.  According to The National Association of Realtors, the new guidelines should give landlords, property managers and community associations greater authority to verify that the need for such an animal is legitimate.

The NAR reports it has had separate conversations with HUD and disability rights groups. esupdog-300x234 Senior Policy Representative Megan Booth recently told attendees at a conference that the disability rights groups have expressed concerns over the widespread abuse of requests for companion animals, as they believe it is already making it more difficult for residents with legitimate needs to receive the approvals they require.

It appears that the new HUD guidance will be specifically aimed at curtailing the use of online ESA certification mills.

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While most garden-variety disputes between unit owners and their condominium associations are mandated by law to go to nonbinding arbitration before going to court, certain types of more complex disagreements are specifically excluded from this requirement and can proceed straight to trial.

The latest ruling over whether a dispute between an owner and a condominium association involving an addition to a common element was required to first go to arbitration before trial came in the case of Palisades Owners’ Association v. Thomas F. Browning before Florida’s First District Court of Appeal.

Dan Phillips and Jamey Phillips, who each own a unit in the Palisades condominium in Panama City, Fla. and serve on the association’s board of directors, added a boat lift to the community’s dock in 2016 for their exclusive use without prior approval from the other unit owners.  As a result, unit owner Thomas F. Browning sued the association, which moved to dismiss the suit based on the contention that it must first be submitted to nonbinding arbitration in accordance with The Condominium Act.

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This year’s legislative session has come to an end, establishing new laws and amendments to a number of statutes regulating community associations in Florida. On March 23, 2018, Governor Rick Scott signed the following laws into effect:Florida-legislature-photo-thumb-300x198-300x198

Official Records of Condominiums and Cooperatives – § 718.111, § 719.104

  • The deadline for condominium and cooperative associations to fulfill official record requests has been extended from 5 working days to 10 working days. §718.111(12)(b), § 719.104(2)(b), Fla. Stat.
  • Electronic records relating to voting have been included in the list of official records that must be kept by condominium and cooperative associations. §718.111(12)(a)12., § 719.104(2)(a)10., Fla. Stat.
  • Condominium associations must now permanently maintain specific documents from the inception of the association, unlike the previous 7-year limitation. The following is a list of those documents: §718.111(12), Fla. Stat., §719.104(2), Fla. Stat.
  • A copy of the articles of incorporation, declaration, bylaws and rules of the association;
  • The minutes of all meetings;
  • A copy of the plans, permits, warranties, and other items provided by the developer;
  • Accounting records for the association.

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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, are creating significant security and liability concerns for associations.

One response by a San Diego homeowners association recently drew the attention of its local ABC affiliate, which chronicled how the community had retained a private investigator to gather and document incontrovertible proof that specific owners were conducting the restricted rentals.  The licensed private detective and his associates were hired by the HOA and other local associations to investigate homeowners and tenants who are violating association bylaws and CC&Rs that prohibit turning units into short-term vacation rentals.

sout-300x200While the hiring of private detectives may initially seem as an extreme measure for an association, it makes sense when one considers the risks and concerns that are brought on by these rentals for HOAs and condominiums.  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.

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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.

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