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Articles Posted in Rules and Restrictions

The horrific murder of an 11-year-old Las Vegas girl stemming from a shooting into her home, which had been mistakenly targeted by local gang members, has led to a wrongful death lawsuit against the homeowners association and property management firm. The tragic case delivers a very clear and important message for community associations contending with problem residents who may pose a threat.

The shooting last November was caught on surveillance video, which shows multiple assailants firing indiscriminately into the home where Angelina Erives lived with her mother, step-father and two sisters. The shooters were confused as to the location of their intended target, which was a home two doors down the street, when they killed Angelina (pictured below in family photo provided to media).

ErivesAccording to statements of the attorney for Angelina’s mother and siblings in several news reports, the neighboring property had been occupied by as many as 20 different tenants and the police had been called to that property on numerous occasions. The homeowners association and property management company were aware of the problems and had been in communications with the owner of the home. However, the association’s apparent enforcement of the community’s covenants, conditions and restrictions fell short of evicting the problem residents.

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Home automation is a fast-growing segment of the tech industry, and the use of Internet-connected doorbell cameras has become particularly popular for those seeking an extra level of security at a reasonable price. These motion-activated cameras enable users to monitor everyone who passes by their front door, whether on a live or recorded video feed. While use of these devices may present less privacy issues for those residing in single-family homes, what about for those who reside within condominium buildings with shared hallways?

Proponents of doorbell cameras in condominium buildings may argue that the convenience and safety benefits they provide outweigh the privacy concerns and any issues of improper alterations to the common-element portions of the condominium building. dbelcam For example, a doorbell camera, which may also be capable of recording audio, may view and record within another dwelling that may be located across the hallway when its door is open.  The use of a doorbell camera in such a scenario may be considered an invasion of privacy.

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Drones have become extremely popular for those who yearn for the latest gadgets and gizmos.  Many associations have already adopted rules to address the use of drones in their communities, and those that have not done so should give it serious thought and consideration.

When equipped with cameras, drones can be used to violate the privacy of association residents, not to mention their ability to cause major property damage, so associations should take a proactive approach toward developing and implementing rules and restrictions to protect the interests of those residing within their community.  Specifically, some examples of the rules and policies that associations are implementing include:

d2-300x176Restricting the space within which drones may be flown, such as over their operator’s personal lot, or those lots of adjoining neighbors (with their prior permission).

Limiting drone use to association common areas that are away from roads, buildings, playgrounds and other amenities.

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Residents of the Phillips Bay Condominium in Orlando, Fla. are finally breathing a sigh of relief after a years-long saga of a nightmare neighbor appears to be coming to an end with a conviction for aggravated stalking. Residents are now awaiting a final ruling from the court on the penalty for the third-degree felony, which under Florida law can be as high as five years in prison, five years of probation and $5,000 in fines.

According to an arbitration order from the state’s Division of Condominiums under the Department of Business and Professional Regulation, the complaints against unit owner Marianna Seachrist (pictured below) at the condominium association began in early 2014, shortly after she moved in to the community. Neighboring unit owners complained of constant pounding and rumbling noises at all hours of the day and night, and police were eventually called when Seachrist threatened to hire someone to kill one of the board members.

mariannaseachrist--240x300The loud and disruptive noises continued, and the threatening behavior escalated to the point that some residents lived in fear of walking around the community. After multiple incidents and calls to police, her downstairs neighbor was granted a temporary injunction for stalking protection in 2015.

After Seachrist was served with the injunction, deputies had to return to her condo three successive days because of noise disturbances. In subsequent visits they heard low-bass rumbling and knocking noises, and after obtaining a search warrant they rammed the front door and discovered an elaborate sound system, including three low-frequency speakers mounted to a board and placed face-down on the floor in the living room, hallway and closet. The speakers were also weighed down by dumbbells and cinder blocks, and they were wired to an amplifier using a tablet to play a recording on a loop of bass-clicking noises that would vibrate the room. The setup allowed for the remote operation of the system using a smartphone.

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Laura-Manning-Hudson-Gort-photo-thumb-120x180-18921An article authored by partner Laura Manning-Hudson is featured as the “Board of Contributors” 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 “Permitted Breach of Rules by Association Does Not Create Liability for Resulting Accident,” discusses the takeaways from a recent case involving a community association’s liability for an automobile accident involving parked vehicles on its streets.  Her article reads:

Lack of parking can be an extremely troublesome issue for many South Florida community associations. For HOAs with rules that prohibit on-street parking, the dearth of available spaces for residents and their guests can leave many homeowners feeling stymied and annoyed.

To remedy the angst of its residents, the HOA for the Seminole Lakes community in Palm Beach County decided to forgo its rule against on-street overnight parking. However, that decision nearly ended up causing the association major legal and financial liabilities, which it was only able to avoid after it appealed a jury’s verdict to Florida’s Fourth District Court of Appeal.

dbr-logo-300x57The case of Seminole Lakes Homeowner’s Association v. Esnard arose from a 2013 car accident in the community between the Esnards and another motorist, who rear-ended their vehicle while they were stopped waiting for two trucks to pass between two parked cars on the street. The Esnards, who were injured in the accident and had their car completely totaled, filed suit against the other driver as well as Seminole Lakes on the basis that the community was negligent and had proximately caused their damages by permitting homeowners and their guests to park on both sides of its streets — contrary to its governing documents.

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MTobacksrhl-law2-200x300The firm’s Michael Toback authored an article that appeared as the featured “Board of Contributors” 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 “Court Strikes Down HOA’s Rule Banning Personal Trainer From Fitness Center,” focuses on the takeaways from a recent appellate ruling involving association bans of guests from amenities and common areas.  The article reads:

Is a personal trainer in a fitness center like a call girl sitting at a clubhouse bar? This comparison was drawn by the trial court in its decision to grant summary judgment in favor of a homeowner’s association as to whether a personal trainer is an invitee or a licensee. However, the Fourth District Court of Appeal reversed the decision, concluding that neither the analogy nor the analysis was properly applied to the facts of the case.

The Fourth DCA’s recent ruling in Charterhouse Associates v. Valencia Reserve Homeowners Association brings an added measure of clarity to the proper test for courts to apply when determining who may be classified as a licensee by associations.

dbr-logo-300x57The residents of a property owned by Charterhouse within the Boynton Beach, Florida community paid and authorized a personal trainer to lead their workouts in the community fitness center. The gym is one of the amenities available for use by owners, family members, guests, invitees and tenants according to Valencia Reserve’s declaration. When the association later entered into a contract with a different vendor to be the exclusive provider of personal training services in the fitness center, it banned the residents’ trainer from the facility.

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In the aftermath of one of the worst school shootings in U.S. history, the residents of Parkland in Broward County have taken pride in the resilience and unity that they have demonstrated as a community. Memorials and messages of support were placed throughout the neighborhoods and enclaves surrounding Marjory Stoneman Douglas High School, and signs reading “Parkland Strong” and “#MSDStrong” became ubiquitous.

However, at the home of Donna Ali, whose daughter is a student at the high school, the Parkland Golf & Country Club HOA had requested that her “Parkland Strong” yard sign as well as those of some of her neighbors should be removed.

According to a report by WPLG-ABC Channel 10, the HOA sent an email to residents reading: “In keeping with the memorial plans, the community relations committee is asking residents that have shown solidarity with the MSD family by placing memorials in their yard to take them down by Nov. 15.” plandstrong-300x225The community is apparently working on installing a permanent memorial, which is expected to be completed by February.

After hearing about the station’s report, the board of directors of the HOA distributed a news release stating that the signs will now be allowed to stay up until the permanent memorial has been completed. It reads: “The board immediately decided to suspend the removal request until the permanent memorial is complete as our community does not want to bring any additional pain to anyone, especially an MSD student.”

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The recent news about an accident inside G.L. Homes’ Seven Bridges community in Delray Beach involving four children on a golf cart highlights the potential legal liabilities for Florida associations concerning kids driving golf carts.

According to a report by BocaNewsNow.com, four children were riding a 2014 EZ Go “Freedom” Golf Cart on the community’s main street when the unlicensed 15-year-old girl driving the cart darted in front of an oncoming car.  The car, which was driven by Sunny Isles resident Eduard Hiutin, crashed into the golf cart, causing its driver and passengers, ages 11, 13, 14 and 15, to be ejected onto the street.  The children were transported by ambulance to the trauma unit at Delray Medical Center, where one was treated for a catastrophic injury.

The golf cart driver, who lives in the community along with two of the other children, was charged with operating a motor vehicle in a careless or negligent manner as well as failure to yield to the right of way.

gcart-300x158While the parent of the golf cart driver can be sued for negligence in such a case, the association can also be named as a defendant.  In fact, according to the Seven Bridges community’s governing documents filed with the clerk of courts, Seven Bridges requires a golf cart driver to be at least 16 years old and carry a valid driver’s license.  If enforcement of this rule was lax, potential liability could be alleged.

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The Florida Marketable Record Title Act (MRTA) requires HOAs to reaffirm and renew their covenants and restrictions 30 years after they were originally recorded in the local county records.  MRTA was created to extinguish claims to property which are at least 30 years old in an effort to stabilize property law by clearing old defects from the chains of title to real property, limiting the period of record searches, and clearly defining marketability by extinguishing old interests of record.

One of the unintended consequences of the Act is that the declarations of covenants, conditions and restrictions recorded by HOAs may be set to expire after 30 years of the date in which they were recorded.  Keep in mind that for most HOAs, if the residents are no longer compelled to act in accordance with the community’s declaration, the results could be catastrophic for the associations’ administration and finances.

Flalegislature-300x169The Florida legislature passed a law earlier this year to update the process for HOAs to renew and preserve their covenants and restrictions under MRTA in order to keep them in place after the 30-year term.  Under the new law, which is now in effect, at any time during the 30-year period following the effective date of the title for the covenants and restrictions of a community association, the association may preserve and protect those covenants or restrictions from extinguishment by following more simplified filing procedures which include the following:

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Many associations’ governing documents include clauses that prohibit commercial business activities from being conducted in a resident’s unit.  Some include a blanket stipulation banning commercial activity altogether, while others make a distinction between permissible and impermissible activities.  While it makes sense for associations to want to regulate and restrict businesses from operating within their communities, HOAs and condominium associations should take a prudent approach that is guided by reason.

When considering how to regulate and enforce restrictions against commercial activities, associations should focus on the impact that particular activities have on the community and the quality of life of those who make it their home.  Today’s technology allows for a great deal of work to be done from home with no disruptions whatsoever to the community at large.  homework-300x200Rather 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.

Some of the activities that communities wish to ban are those that entail significant vehicular traffic, including from clients as well as vendors and delivery vehicles.  Continue reading