Articles Posted in Security

A recent article in The Boston Globe chronicled the case of a condo owner who earned rave reviews as a host on the vacation rental website Airbnb. He went to great lengths to accommodate the needs and whims of his guests, but apparently his willingness to oblige did not extend to his condominium association and fellow neighbors.

The unit owner was fined $9,700 for violating his condominium association’s rules against short-term rentals via the increasingly popular website, which allows users to list their residences for short-term rentals aimed at guests who desire more homey accommodations. The owner has retained an attorney to try to negotiate a lower fine, and he is quoted as saying that he “didn’t expect, as an owner, having somebody else in my own home would be a problem.”

Perhaps he should have known better, as most association’s covenants and rules prohibit short-term rentals, and some even include an application process with background checks for prospective tenants. Yet he and other unit owners are claiming ignorance of the rules after being hit with fines ranging anywhere from $100 to $1,000, depending on their associations’ bylaws, for each night that they have rented their units, according to the newspaper’s report.

With Florida’s countless luxury waterfront condominiums replete with investor-owned units that sit idle during large swaths of the year, the growing popularity of Airbnb and its rivals HomeAway and VRBO represents a potentially significant new problem area that should receive the attention of many association boards throughout the state. The prospect of a revolving door of short-term guests presents security and nuisance concerns, especially for condominiums, and the boards of the state’s condo associations would be well advised to review and possibly strengthen their covenants to specifically ban these types of rentals as well as ensure adequate enforcement provisions and procedures.

For those associations which are already contending with owners who are utilizing these websites for short-term rentals or suspect that it is taking place, their rules enforcement actions should begin with thorough investigations. In a non-confrontational and courteous manner, the property manager or board member should inquire with the new guests in the residences that are suspected of being rented as to the nature of their agreement with the unit owner and how they discovered the property. They should document their findings, and they should also research the websites to find and save the offending listings.

abnb.jpgArmed with this information, they can then move forward on two fronts: directly with the owner as well as with Airbnb or the website listing the unit. Airbnb includes in its terms and conditions for hosts that they must comply with the rules governing rentals in their communities, and the site reserves the right to purge any listings that it deems to be in violation of its terms. Presumably, the company and its rivals would be willing to consider the removal of listings by hosts that are in violation of community association rules, and one of my colleagues at our firm has learned of a case from a client in which Airbnb was contacted by the association and pulled a listing from its site after it learned of the rule violation.

In addition, associations should share the evidence that they have gathered of the rentals using these websites with their legal counsel, who can use the information to issue an immediate cease and desist letter to the unit owner and help the association to determine an appropriate enforcement mechanism. However, for unit owners who have already begun enjoying the rewards of their rentals, it is a safe bet that they will be reluctant to discontinue them.

For the ardent renters who will refuse to comply with these demands and continue to rent their residences, the association counsel should move quickly to file a Petition for Mandatory Non-Binding Arbitration on the rule violation with the state’s Division of Condominiums, Time Shares and Mobile Homes, administered under the Department of Business & Professional Regulation. The Division of Condominiums, through its Arbitration Division, is equipped to quickly and efficiently conduct arbitrations on disputes involving covenant and rule violations, and its final orders can involve both the issuance of injunctive relief (i.e., requiring someone to do or not do something), as well as requiring the non-prevailing party to pay the reasonable attorneys’ fees and costs of the prevailing party incurred in bringing the action to enforce the association’s covenants and rules.

In the new peer-to-peer sharing economy, Airbnb and the other websites enabling homeowners to rent their residences to short-term guests are here to stay and likely to enjoy continued growth in the years to come. The associations in Florida that wish to avoid these short-term rentals should act now in order to protect the interests of their members.

Holidays are time for out of town visitors, lots of parties with family and friends, and the inevitable traffic that all of the festivities bring with them. Unfortunately, not all neighbors and communities welcome the season and all that it brings with open arms. Typical complaints that many boards deal with during the holiday season revolve around high traffic, high noise levels and violations of parking rules. However, by taking certain precautions ahead of time, residents can hopefully avoid being scrooged by their neighbors and having their holiday spirit deflated.

If you are hosting a party, a good rule of thumb is to plan ahead in terms of parking. Find out about the guest parking in your community – where spaces are located and how many spaces are available is a good starting point. If you live in a gated community, find out if visitors will be required to go through a security gate or obtain guest parking passes beforehand. Some communities require that a guest list be provided to security prior to the party so that guests can more easily be identified when entering the community and then directed to the appropriate parking locations. You may also want to ask around to see if any of your neighbors will be out of town and whether your guests can use their parking spot while they are away. If guest parking is limited or just not accessible, you may have to park visitors outside of the community and shuttle them in.

From the board’s perspective, make sure that your community is prepared to accommodate the increased traffic and parking during the holidays. The parking rules may differ from association to association, but the most important thing to consider is to keep the roads safe for other drivers and emergency vehicles. Gatehouses or guard gates should be well-staffed to ensure that visitors aren’t forced to wait long periods of time in order to be granted entry. Also, make sure that security follows your community’s protocol when allowing visitors access – you don’t want them bypassing security procedures in an effort to avoid long lines. If your community has roving security guards, make sure that officers are continuously moving through the property — extra security presence helps deter unruly behavior.

h party post.jpegSince South Florida is notorious for its nightlife and parties, make sure to keep your noise levels in check when hosting your holiday gathering. Ask yourself at what point does sound become noise. Keep in mind that each county has noise ordinances that regulate the times of day that noise levels should be kept at a minimum. The most common times which counties allow loud music to play are Sunday through Thursday until 10 p.m., and Friday through Saturday until 11 p.m. If the designated noise restrictions are ignored, your neighbors may call the police with a nuisance complaint and your party may be over before you’ve been able to ring in the New Year. Officers will typically give a warning, but if the noise persists, you may receive a ticket or even be arrested for public nuisance.

Finally, parties and family gatherings often mean that our furry friends get booted to the garage, backyard, balcony, or confined to a crate indoors – and with that may come incessant barking, whining and howling. While neighbors and board members may not call animal control unless they have reason to believe the animal’s safety is in jeopardy, they do have a right to exercise what is legally referred to as “quiet enjoyment” of their residences. If you have already been warned about your animal’s disruptive behavior and the issue persists, you could face fines or other legal action.

While the holidays are a hectic time of year, communities that plan ahead are better served – as are their residents who know (and hopefully follow) the rules. We encourage association directors and members to review their community’s parking, party and security rules at board meetings leading up to the holiday season. Distribution of information to the membership is key with the ultimate goal to make the season merry and bright while not ruining the magic for those around you.

Last year I participated in a discussion with an Associated Press reporter and wrote about a central Florida community association’s apparent endorsement of George Zimmerman as its neighborhood watch captain and his involvement in a tragic incident that took the life of the 17-year-old Trayvon Martin. I addressed the possibility that the victim’s family may file a wrongful death civil suit against the association. Last month, news broke about the purported settlement reached between the parents of the victim and the association for an undisclosed amount reported by several news outlets to be in excess of $1 million.

During the course of the litigation and a mediation attempt prior to the settlement, it was reported that under the heading “Neighborhood Watch,” the HOA’s newsletter recommended that residents first call police and then “please contact our Captain, George Zimmerman . . . so he can be aware and help address the issue with other residents.” This apparent endorsement of Zimmerman, who claimed to have been acting in the above-described capacity when the teenage victim lost his life, may have been considered by the association’s board and counsel to expose the association to liability in the lawsuit.

watch program sign.jpgThe Community Associations Institute (CAI) offers an excellent article on neighborhood watch program considerations for HOAs that is available by clicking here. The article discusses how associations should work with their local police department to implement these programs, create a process for recruiting responsible volunteers who will follow all of the written procedures for the security measures, and continuously reinforce these procedures and the do-not-engage rules with the volunteers.

This article from the CAI is recommended for all community association board members and managers who are considering implementing or have already implemented a watch program in their community. As I wrote in my article last year, there are many reasons why associations should avoid formally creating these watch groups and leave it up to the individual owners to band together to develop their own efforts outside of the auspices of the association. However, for associations that cannot or will not distance themselves from the formation of the watch groups, they should follow the guidelines offered by CAI and consult with qualified legal counsel in order to limit their potential liability.

Community associations are constantly striving to implement new, more effective and more convenient security systems for their owners. One new trend that is starting to replace the magnetic cards, key fobs and code-key number pads controlling resident access is biometrics. These biometrics systems are predominantly fingerprint recognition scanners. While there is a significant legal concern that comes with the use of these systems that community associations should be aware of, there are also contractual measures that may be used in order to address and mitigate these concerns.

There is no doubt that biometrics will become more prevalent in the years to come, as it can be very effective and cost efficient. Biometrics offers owners the convenience of doing away with cards, fobs and codes to gain access to the property. Its deployment costs are becoming very reasonable, and it offers considerable savings by diminishing the need for security guards to monitor and control resident access at all of the entrances into a property.

biometrics.jpgHowever, the inherent problem with these biometric security systems is that they are gathering and storing personal identification information. The U.S. Constitution guarantees individuals the right to privacy and due process, so community associations must be extremely careful with the information collected through biometrics (i.e., fingerprints). If an individual’s private information is compromised or provided to any third party – including the government – without due process, it can be found to be a violation of the resident’s constitutional right to privacy, which could have significant legal and financial repercussions for the association.

Community associations that are considering using biometric security systems to provide a cost-effective and secure solution for resident access on their properties should understand this particular vulnerability. Associations should work with a qualified and experienced attorney in order to address these concerns with vendors of the biometric security systems. Attorneys can review and add language to the contract referencing that the association has been assured and guaranteed that the information will not be shared and is adequately protected. Realistically, there are no true guarantees that a breach in the vendor’s system could never take place and expose the information collected. However, by including indemnification clauses and other language in the contract, associations can work to ensure that they avoid taking on significant legal liability in their deployment of 21st century security systems for residents.

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In the wake of the tragic death of Trayvon Martin, associations throughout the country are now reassessing their involvement in neighborhood watch programs in their communities. My comments to a reporter with the Associated Press on the matter were published in a recent article that appeared in news outlets nationwide (click here to read the report), and it now appears likely that Martin’s parents will be filing a wrongful death lawsuit against the community association.

In reaction to this and other news reports about the legal implications of the actions of neighborhood watch volunteers within community associations, the Community Associations Institute (CAI) recently issued a press release with helpful guidelines and recommendations for community associations that wish to implement watch programs manned by volunteer residents in their communities. The press release, which can be accessed by clicking here, stipulates that associations should work with their local police department to implement these programs, create a process for recruiting responsible volunteers who will follow all of the written procedures for the security measures, and continuously reinforce these procedures and the do-not-engage rules with the volunteers. Our firm is very active with the South Florida CAI chapters, and we applaud the organization for issuing this press release to help associations gain a better understanding of the proper procedures for implementing neighborhood watch programs in their communities.

Security has traditionally been one of the most important considerations that associations feel compelled to address, but budget constraints limit their ability to hire professional security guards for on-site monitoring and protection for their residents. watch program sign.jpg In response, many associations resort to creating neighborhood watch programs, which are typically comprised of volunteer owners who agree to keep a watchful eye for suspicious activity.

The Trayvon Martin case illustrates the concerns for associations that organize their own watch programs. In light of this tragic case, many associations are likely to avoid partaking in the organization and implementation of these programs, because doing so could result in significant liability for the association. Notwithstanding these concerns, if associations feel compelled to participate in the organization of a watch program and endorsing it in their community, they should do so with the utmost precautions detailed in the CAI release. These include organizing workshops with their local police department to establish procedures and training for the individuals who volunteer to participate in order to help ensure that they limit their involvement to watching and listening for suspicious activity and contacting the police when necessary, rather than taking on active duties to follow and engage individuals who are suspected of being involved in criminal activity. It is also important for the associations to stress in their written procedures that these individuals are not allowed to conduct armed patrols in the community.

In addition, the associations should consult with their insurance carriers and agents to determine whether they are covered for liabilities that may be caused by the actions of the watch volunteers, who should be vetted by the association with a criminal records background check. If the association learns of any questionable conduct or history of criminal activity by the volunteer, they should take immediate steps to disallow any involvement in the watch program by the individual.

There are many reasons why associations should avoid formally creating these watch groups and leave it up to the individual owners to band together to develop their own efforts outside of the auspices of the association. However, for associations that cannot or will not distance themselves from the formation of the watch groups, they should follow these and other guidelines, including those suggested by CAI, and consult with their own attorneys in order to limit their potential liability to the greatest possible extent.