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George-Ketelhohn-Gort-photo-200x300Firm shareholder Georg Ketelhohn is quoted in an article in today’s Daily Business Review discussing the firm’s efforts on behalf of the condominium association for the 537-unit Midtown Doral in its construction defect lawsuit against the community’s developer, builders and design professionals.  The firm’s suit, which was filed in December, alleges defects including leaky plumbing with erratic water pressure, rooftop pools of rainwater on the roof, and exposed rebar in cracked concrete.

Located at Northwest 107th Avenue and 74th Street, Midtown Doral was completed in 2016 with four eight-story condo buildings and 70,000 square feet of retail space.

The firm’s lawsuit on behalf of the association is against general contractor Delant Construction Co. in Miami, architectural firm Pascual, Perez, Kiliddjian & Associates in Doral, and MD Residential II LLC, an affiliate used by the development partnership. dbr-logo-300x57 The suit alleges breach of implied warranties against the developer and general contractor as well as a professional negligence count against the architect.

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Plug-in electric vehicles are one of the fastest-growing segments of the automotive industry, and sources have claimed that sales of such vehicles are predicted to reach one out of every five vehicles sold during the next decade.  As a result of this growing trend, condominium communities nationwide are confronted with numerous concerns which must be addressed in order to accommodate the needs of an increasing percentage of unit owners hoping to find a solution to their electric vehicles’ charging needs.

Florida legislation adopted recently now requires condominium associations to accommodate owner requests to enable electric vehicle charging, with all the related costs being borne by the requesting owners.

carchrg2-300x155Condominium associations have generally adopted two distinctive approaches to address needs and requests related to their members’ electric vehicle charging needs.  Some associations with available space for a dedicated electric vehicle parking area have opted to install shared community charging stations.  Those communities opting for this approach may have pursued the installation of the charging stations on their own, while others may have availed themselves of third-party vendors interested in coordinating and funding the installation of such charging stations at the condominium.

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The issue of fraudulent emotional support animal requests is drawing significant attention at both the state and federal levels with the Florida Legislature and the U.S. Department of Housing and Urban Development.

As this year’s legislative session gets underway in Tallahassee, HB 209 seeks to protect individuals with legitimate disability-related needs for emotional support animals from discrimination or having to pay extra fees.  However, if passed, it would also authorize landlords to request certain written documentation and prohibit the falsification of written documentation or other misrepresentations.

esupdog-300x234The bill, which is currently undergoing committee review, would make it a second-degree misdemeanor for the falsification of written documentation for an emotional support animal or the willful misrepresentation of qualifications for an ESA.  It addresses the criteria for the written documentation that must be submitted from healthcare providers in support of ESA requests, and would also require the state’s Department of Health to adopt rules regarding the format of the required written documentation.  Significantly, the bill would also mandate that the treatment provided must go beyond merely writing a letter.

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Michael-Hyman-srhl-lawThe firm’s Michael L. Hyman authored an article that was 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 “Owner Who Sells During Foreclosure Litigation Still Entitled to Legal Fees,” focuses on a recent case illustrating how associations can become liable for the attorney fees and costs of unit owners who prevail in foreclosure actions for past-due assessments even if the owners sell their unit during the pendency of the litigation.  His article reads:

. . . In Victor Tison v. Clairmont Condominium F Association, the Fourth District Court of Appeal reversed the lower court’s final order denying Tison’s motion for attorney fees and costs. The appellate panel found that as the prevailing party in a lawsuit brought against him by his condominium association for unpaid assessments, Tison was indeed entitled to recover prevailing party attorney fees even though he sold his interest in the condominium unit during the pendency of the foreclosure action.

dbr-logo-300x57The case began in December 2015 when the association filed a lawsuit against Tison and another defendant seeking to foreclose on an assessment lien against their residence and recover damages for unpaid assessments. The defendants responded by filing an answer with affirmative defenses, which they later amended, and they alleged that they would be entitled to recover attorney fees and costs.

More than a year later in March 2017, the trial court denied the association’s motion for summary judgment, and the defendants sold the residence. Another entire year after that, the trial court entered a final order dismissing the action for lack of prosecution.

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The topic of parking within community associations is oftentimes a source of much consternation.  The limitation of parking spaces in HOA and condominium association communities – whether real or perceived – may result in volatile and contentious situations for community association stakeholders.  Homeowners, property managers and directors alike are confronted with concerns about the manner by which vehicles are parked; the number of vehicles residents choose to park within communities; the number of guests an owner may have at one time parking their vehicles within a community; the duration which vehicles may be parked; the types, appearance and size of vehicles parked within a community, and the locations in which residents or guests choose to park vehicles within a community.

npark-227x300In order to address these concerns, community association directors typically adopt rules and restrictions governing how, when, where, how many and what types of vehicles may be parked in the community.  However, unit owners can become very frustrated by such rules and restrictions, especially if they are perceived to be overzealous or ill-intended.

Board members and property managers should take every precaution to strike a balance between the rules and restrictions they impose upon parking within the community and the legitimate concerns they intend to address by the imposition of such rules.

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Community associations in Florida are required to provide owners with access to the association’s official records within 10 working days after receiving a written request from a unit owner or the owner’s authorized representative.  Given such a statutory mandate, it is not so uncommon for associations to receive requests to inspect financial and accounting records, contracts, certified copies of plans, permits and warranties provided by the developer or any other contractor, as well as copies of the declaration, articles of incorporation, bylaws, rules and regulations, and insurance policies.

Associations should be prepared to respond to requests to inspect official records by utilizing strong document management and retention policies.  For large associations, records should be cataloged and preserved using third-party cloud services for offsite storage and backup.  These systems can be set to automatically backup and store association records at regular intervals.

One of the simplest ways for associations to keep a thorough and searchable archive of important email communications with property management, attorneys, insurance brokers and others is to utilize a single association board email address as the sender and/or copied recipient of all such messages.

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The Community Associations Institute, the largest organization representing the interests of communities with associations, recently issued a new public policy titled “Assistance Animals and Pets in Community Associations.”  The new policy recommendations, which were adopted by the organization’s Board of Trustees, serve as excellent guiding principles for associations and lawmakers on pet restrictions and assistance animal policies.

The policy recognizes the rights of residential community associations to regulate and adopt rules pertaining to pets and assistance animals, but it notes that such rules must guarantee the rights of individuals with disabilities to receive the assistance they need as mandated by state and federal laws.  It will be used by the organization and its legislative action committees around the country to support legislation allowing associations to request documentation that verifies the need to accommodate for an assistance animal, and which imposes penalties for fraudulent requests for service or emotional support animals.

esupdog-300x234Assistance animals are recognized as deserving of reasonable accommodations for the qualified disabled under the federal Fair Housing Act.  Assistance animals are not considered pets, according to the U.S. Department of Housing and Urban Development, which oversees the Fair Housing Act and investigates claims of housing discrimination. Continue reading

Marc-Smiley-SRHL-law-200x300Firm shareholder Marc A. Smiley authored an article that was 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 “Association Protected by Business Judgment Rule Against Disgruntled, Litigious Homeowner,” discusses how the enforcement of restrictions against property improvements that are in violation of association covenants can become very contentious in single-family home communities.  It notes most of these disputes are between a homeowner seeking approval for alterations and their association’s architectural review committee, but some of the cases stem from third-party unit owners who become dissatisfied with their association’s decisions.  His article reads:

A recent ruling by Florida’s Fourth District Court of Appeal involved just such a dispute brought by a homeowner who was disappointed with his association’s approval of a neighbor’s new garage. In Miller v. Homeland Property Owners Association, the appellate panel affirmed the lower court’s partial final summary judgment in favor of a homeowner that had secured the association’s prior approval and built the garage on his property.

dbr-logo-300x57The Fourth DCA only addressed whether disputed issues of material fact precluded the entry of summary judgment and the proper application of the business judgment rule. Owners in the community of Homeland Property Owners Association are required to obtain approval of their plans by the association’s architectural review board prior to commencing any work. Restrictions that are in place in the community include a maximum building height of 32 feet and a prohibition against flat roofs.

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Recent reports in the Palm Beach Post and on WPBF 25 News (see video below) chronicled the devastating damage that is being caused to homes in the Ibis Golf and Country Club community in West Palm Beach by hundreds of black vultures.  The large birds are being attracted by a homeowner who is feeding the wildlife with massive amounts of food.

The vultures fly in for their regular feedings and then stay to roost on and around the surrounding houses.  Hundreds of the birds have torn apart screened enclosures and made themselves at home in neighboring pools and patios, and they have even dented residents’ vehicles with their beaks.

“The vultures just vomit everywhere,” says a homeowner in the newspaper’s article.  “Defecating and vomiting.  It’s just gross.”

Another homeowner who lives next door to the lady who feeds the birds says that after the vultures tore into her pool enclosure, they became trapped and began attacking each other.  “Imagine 20 large vultures trapped, biting each other — and they can bite through bones,” she said. “They would bang against my windows running away from a bird that was attacking them. Blood was everywhere. It was a vile, vicious, traumatic event.”

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A recent editorial by the South Jersey Times focused on the tragic and untimely death of a 25-year-old HOA community resident that is being blamed on an overly restrictive association rule.  Tori Gerstenacker (pictured below) was struck and killed by a motorist while crossing Route 70 in Evesham Township.  She parked her pick-up truck at a shopping center across the busy highway because the HOA for the Delancey Place community where she lived has a rule against parking commercial vehicles.

According to her roommate, Gerstenacker regularly parked at the strip mall because the homeowners association warned her that it would tow her truck if it was parked in the community.  The roommate says she drove a Ford F-150 pickup truck similar to those several other Delancey Place residents park in the community without drawing the ire of the association.  The difference is that Gerstenacker’s truck featured the logo of the company she worked for, identifying it as a “commercial” vehicle.

tgersten-225x300The editorial concedes that blaming the Delancey Place association for Gerstenacker’s death is not fair.  “Several other circumstances could have contributed, including how much care she took in crossing a busy, dark state highway, and the actions of the motorist who struck her. (The driver stayed at the scene and cooperated with investigators),” it reads.

However, it also states that associations should avoid putting their residents between a rock and a hard place.  It notes that there are no side streets along Route 70 where residents of the area’s multitude of developments can conveniently park non-conforming vehicles.

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