Articles Posted in Rules and Restrictions

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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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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Our firm’s other community association attorneys and I are often called upon by association boards of directors and property managers with issues involving obstinate and disruptive unit owners who become a serious nuisance to directors, management and other residents.  In such cases, after warnings, incident reports and fines have failed to have any effect, legal action can serve as an effective recourse.

Such appears to be the case in the recent lawsuit filed by the condominium association for The Mark Yacht Club on Brickell Bay (pictured here) in Miami-Dade Circuit Court. the-mark-yacht-club-on-brickell-bay The association is suing Nuri Munis, Pelin Munis Cakov and Seda Munis, who own two units in the 36-story condo building, for putting the board of directors, property manager, staff and fellow residents through a hellish ordeal.

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Hoarding is becoming an increasingly common problem throughout the nation, especially for community associations where people are forced to cohabitate at close proximities. Depending on its gravity, hoarding can pose health threats to fellow residents, causing foul odors and pest control issues that spill over into hallways and neighboring units. Despite being a nuisance, it is important to remember that compulsive hoarding is a disorder, one which usually implicates some sort of mental health issue. As a result, community association board members and property managers should be sensitive and discrete when handling hoarding concerns in their communities.Hoarding-300x157 Continue reading

https://www.floridahoalawyerblog.com/wp-content/uploads/sites/139/2017/12/back-the-blue-sign_1509060539503_4416124_ver1.0_640_360.jpgA 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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All too often, we are asked by boards of directors and property managers what steps can be taken to prevent residents from continuing to break rules in their communities. Seldom, however, do we hear community associations that are active and persistent in disciplining their rule breakers. Typically, violations range from disobeying noise ordinances to more problematic ones such as ignoring an association’s prohibition of short-term rentals. Regardless of how big or small—or even how chronic—an infraction may be, it is important that board members do their part in enforcing the rules and regulations of their associations. Follow-Rules-300x157

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Florida community associations are always seeking to implement the most cost-effective options at their disposal to collect unpaid dues and compel unit owners/residents to comply with their rules and restrictions.  CPool-300x227ondominium associations used to have very few practical remedies at their disposal to address delinquencies and violations.  They could file lawsuits or arbitration actions, but the costs of pursuing these cases can be a significant expense, and the imposition of fines requires the use of a fining committee and can be difficult to collect.

As a result of legislative changes to the state’s Condominium Act a number of years ago, associations are now able to suspend the rights of an owner, tenant or guest to use common elements and facilities if the owner of the unit is delinquent more than 90 days in paying a monetary obligation to the association.  Condominium associations may also suspend, for a reasonable period of time, the right of an owner and/or resident to use common elements and amenities for the failure to comply with any provisions of the association’s declaration, bylaws or rules. Continue reading

MichaelHymanFirm partner Michael L. Hyman 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 “Injunction Against Condo Owner Illustrates Just How Ugly Things Can Get,” focuses on a ruling in Broward Circuit Court last year that granted an injunction to a South Florida condominium association against the owners and residents of a unit in the 55-and-over community.  His article reads:

The association alleged that the defendants violated key provisions in the community’s declaration by threatening and disturbing other residents with their aggressive actions. In fact, one unit owner sought a restraining order against Juan Gonzalez, whose conduct ultimately resulted in his arrest for domestic violence and resisting an officer. The association alleged that this sort of conduct had been going on for several years, but it had escalated into more violent and aggressive levels. In addition to seeking injunctive relief against the defendants, it also sought to have the court require them to vacate the dwelling.

The court found that the defendants had threatened and disturbed other unit owners with repeated aggressive behavior and threatening words and actions. It ruled that the “credible evidence also established that the association tried to remedy the defendants’ behavior by speaking to the defendants, having the defendants appear before a committee of unit owners for the development of harmonious relations, calling the police on multiple occasions and having legal counsel send letters of violation demanding that the threatening and aggressive behavior stop, all to no avail.”

dbrlogo-300x57The ruling states that the association called a meeting of its grievance committee, during which Gonzalez acknowledged that he had been banging on the ceiling of his unit, and he suggested that he would not have to serve much time in prison if he killed somebody. It reads: “On numerous occasions continuing until the current time, he would use a stick or other object to bang on his ceiling, claiming that the occupant above his unit was making too much noise, but in reality these noises were common day-to-day noises such as walking through the apartment or taking a shower. On one occasion, he walked upstairs to use a baseball bat to bang on the occupant’s door, frightening her deeply that the defendant was attempting to break into her unit and resulting in the police being called to the premises. He later approached this same occupant when she was on the common areas, threatening her to her face. On another occasion, the defendant Juan Gonzalez threatened a staff member with a knife, and threatened the property manager that the defendant would run him over with his car.”

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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 VRBO.com, 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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RobertoBlanch2013

Firm partner Roberto C. Blanch authored a “My View” guest column that appeared in today’s edition of “Business Monday” in the Miami Herald.  The article, which was titled “Condos’ Task:  Addressing Airbnb Short-Term Rentals,” focuses on how local municipalities and community associations are responding to the issues that are being created by short-term rentals using Airbnb and its competitors.  Roberto’s article reads:

The issues created by short-term rentals facilitated by Airbnb and its competitors have been among the most pressing problem areas for condominium and homeowners associations during the past several years. While most community association governing documents prohibit short-term rentals, the enforcement of these restrictions has proved to be challenging and costly, and as a result, many association boards of directors and property managers are implementing strategic countermeasures and monitoring tactics.

South Florida has been particularly affected, given the area’s standing as a major international tourist destination, and the Miami market has ranked among the top five home-sharing markets in the U.S., according to Airbnb.

A number of South Florida municipalities have adopted new measures to enforce restrictions on these nontraditional rentals. In particular, the City of Miami Beach has been leading the charge with some of the most stringent regulations and fines in the country.

MHerald2015-300x72Miami Beach ordinances allow for vacation and short-term rentals (less than six months and one day) in certain zoning districts, but they are banned in all single-family homes and in a number of zoning districts. Fines for violators previously ranged from $500 to $7,500, but they were increased dramatically in March 2016 by the city commission to $20,000 for first-time violators.

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