Subscribe by Email

Articles Posted in Rules and Restrictions

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, can create a revolving door for guests with none of the prior screening and background checks that are typically performed for new residents and tenants.

As many associations have already realized, enforcing rules and restrictions against short-term rentals can be very challenging. Savvy unit owners have been known to sneak their transient guests into properties by advising security that their visit is authorized.

As such, enhanced vigilance and guest-screening measures have become necessary, and many associations have developed and implemented new registration forms for use with guests and tenants along with written assurances and noncompensation statements indicating they are not paying for their stays.

sout-300x200That may not go far enough for some associations with owners who are highly determined to rent their units. For some, it has become necessary to retain a private investigator to gather and document incontrovertible proof that restricted rentals are taking place. Licensed private detectives can effectively investigate homeowners and tenants in violation of association bylaws and CC&Rs that prohibit turning units into short-term vacation rentals. 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.

Continue reading

“I’m putting my own life at risk!” That’s what an Ormond Beach, Fla. homeowners association director is reported to have said after he fired his gun into the ground in an effort to shoo away two teenagers from the community pool.

Thankfully, nobody was hurt in the incident, which resulted in the arrest of Richard S. Marcelle, 66 (pictured below), for three counts of aggravated assault with a deadly weapon without intent to kill and discharging a gun in public.

According to reports in the Daytona Beach News-Journal and local television stations, the encounter took place at approximately 9:15 on the evening of April 22 when Julian Johnson, an 18-year-old resident of The Village subdivision, and a younger friend visited the community pool. rmarcelle-280x300Marcelle, who is a member of the HOA’s board of directors, approached and informed them that the pool was closed.

When Johnson noticed a sign indicating the pool is open until 10 p.m. as he and his friend were exiting, they pointed it out to Marcelle. Apparently, residents had not yet been notified, and new signs had not been posted, announcing a recent change to the pool hours.

As they attempted to re-enter the pool area, the association director intercepted them and brandished a handgun, which he then fired into the ground. One of the teens then asked: “Did you really just shoot a gun?” Marcelle’s response: “Yes, I am putting my own life at risk!”

Continue reading

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.

Continue reading

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.

Continue reading

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.

Continue reading

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.

Continue reading

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.

Continue reading

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.

Continue reading

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.”

Continue reading

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.

Continue reading