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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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Firm shareholder 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 “Appellate Ruling Bolstering Association Collections Conflicts With Prior Rulings,” discusses how Florida condominium associations, especially properties under the jurisdiction of the First District Court of Appeal in the panhandle and north Florida, have received a powerful new collections weapon with a recent ruling.  Michael writes that the new First DCA opinion, which includes a certified conflict with several prior rulings by the Third District Court of Appeal, should be taken up by the Florida Supreme Court.  His article reads:

. . . In Coastal Creek Condominium Association v. FLA Trust Services, the case hinged on whether the current owner’s shared liability with the previous owner for unpaid association dues was limited solely to the assessments that accrued during the ownership of the most recent previous owner. The unit involved in the case was acquired via auction after the mortgage lender’s foreclosure, and the company that acquired it transferred the property via quit claim deed to an LLC just six weeks later.

The question for the court was whether the condominium association’s collections from the new owner were limited only to those for the intervening owner’s six weeks or could it also still collect on the significant debts of the original owner who lost the unit to foreclosure?

dbr-logo-300x57The trial court ruled that the new owner was only responsible for the assessments that came due during its ownership and the immediate prior owner’s six-week ownership, but not any additional assessments from the original owner.

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A new rule by the Federal Housing Administration that went into effect Oct. 15th is making it easier for first-time condo buyers, even those with less than perfect credit scores, to get approved for FHA-backed mortgages.

The new rule allows individual condominium units to be eligible for FHA mortgage insurance even if the condominium development has not been FHA approved.  It introduces a single-unit approval process, which will make it much easier for many condominium residences throughout the country to become eligible for FHA-insured financing.

The rule changes also extend the recertification requirement for approved condominium communities from two to three years, and it allows more mixed-use projects to be eligible for FHA-insured mortgages. fha Condo developments will be eligible for FHA financing if their commercial/non-residential space does not exceed 35 percent of the total floor area (previously the maximum was 25 percent).

The FHA provides mortgage insurance on loans made by FHA-approved lenders, which benefit from the added protection against the risk of default.  According to the U.S. Department of Housing and Urban Development, the rule change is expected to make 20,000 to 60,000 condo units per year eligible for the FHA-insured financing.

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A recent article by the Marco Eagle newspaper reported that the Marco Island Code Enforcement Magistrate recently issued $1,000 fines to three condominium associations for violating sea turtle lighting restrictions.  For one of the properties, it was the second such violation in consecutive months.

The violations involved lighting in the pool areas that reflect on the oceanfront buildings.  These lights could potentially disorient turtle hatchlings, causing them to move away from the shore.

sturtle-300x200The newspaper report also noted that the city’s code enforcement office had recently issued $1,300 in fines against six condominium associations for violating sea turtle lighting restrictions.  To date, the municipality has issued 45 notices of violation during the 2019 sea turtle season, 25 more than in 2018.

The article also states that a local condominium resident recently posted in a Facebook group that she found a dead sea turtle hatchling inside of a Ziploc-type plastic bag in her building’s lobby accompanied by a note reading:  “This is what you get when you don’t close the blinds.  They crawl towards the light.”

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The Florida law mandating condominium association websites went into effect at the start of 2019.  By now, all condominium associations with 150 units or more (excluding timeshares) should have launched a website that complies with the new law.  Those that have not already created their website should do so immediately in order to avoid any potential repercussions.

Under the new law, password-protected condominium websites for the exclusive access by association members must include the recorded declaration of condominium and bylaws along with any amendments to each, the articles of incorporation filed with the state, and the association’s rules and regulations.  The website must also include a list of all executory contracts and transactions to which the association is a party or under which the association or unit owners have an obligation.

After bidding for related materials, equipment or services, the website must include a list of bids received by the association within the past year.  Summaries of bids in excess of $500 received from vendors during the past year for materials, equipment or services must be maintained on the website for one year.  In lieu of summaries, however, the association may post complete copies of those bids.

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Requests by unit owners to review official records of their community association should not present any difficulties for Florida condo associations and HOAs, yet records requests often become needlessly contentious.

Associations in the state are required to allow access to their official records within 10 working days after receiving a written request from a unit owner or their authorized representative.  They may establish reasonable rules specifying the frequency, time, location and manner of record inspection and copying, but they cannot deny access.  Those that fail to comply may be subject to compensate the requesting owner with a minimum of $50 per calendar day beginning on the 11th day after receiving the written request.

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