How Long Does an Association Have to Address Rules Violations?

Q: I put a paver walk partially on common grounds five years ago for my handicapped wife to walk on. Some people in my community are now saying I need to move it. Is it too late for them to make this claim legally? There are many violations in our community that are never enforced.

A: Your issue raises a couple questions. First, how long does a community association have to enforce a rules violation, and what is the association’s ability to take legal action against you when it neglects to take action against other violations? Second, does your wife have the right to continue using the walkway under fair housing laws due to a handicap? As to the first question, we generally advise community associations to take relatively prompt and consistent action when it comes to rules enforcement. If the violation is open and known to all Board members and the association fails to take action for a year or more, it will be increasingly difficult for the association to prevail in any litigation to enforce the stale violation. Certainly if an open violation continues for five years or more without action by the association, you have a relatively strong chance of prevailing in court if the association tried to take action now.   Regarding the handicap issue, we are seeing more and more claims against community associations from those claiming exemptions to rules due to a disability or handicap. The most common claim involves service or emotional support animals, but we have handled other claims similar to yours. The general rule is that your wife is entitled to a reasonable accommodation from the association that would allow her an equal opportunity to use and enjoy her property. Assuming the lengthy delay by the association was not an issue, the association may require you to consider alternatives such as building the walkway in an area that is less intrusive or more aesthetically pleasing, but generally an association cannot strictly deny a reasonable request from a disabled or handicapped resident, particularly if the request will have a minimal impact on other residents.

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Tenant Fighting Bank Over Robo-Signing – How Can We Get Our Association Fees?

Q. We have an owner who has not paid association fees for almost 3 years. The bank that financed the unit was apparently involved in “robo signing” and the delinquent owner has successfully fought them every step of the way. Does the association have any recourse against the bank, and if so, do you think it would be worth pursuing?

A. This “strategy” is used more often than you think. In just about every community we represent that has a collections issue, there is at least one owner who aggressively fights the bank with a lawyer in an effort to stall and keep the home. It is cheaper to pay a lawyer $500.00 per month than to pay the mortgage.   In almost every one of these cases, the unit owner also stops paying the association on the assumption that the association is powerless and at the mercy of the bank. This is not necessarily true. It is important to remember that there is no strong legal defense for an owner’s failure to pay the condo or homeowner’s association. The association does not have “robo signing” or other issues faced by the lending industry. If the owner cannot show a judge that he paid the association for his share of the common expenses, the association will prevail in any legal action against the owner and will be entitled to recover its legal expenses incurred in the process.   Thus, we believe your focus should not be on the bank’s failures, but rather the owner’s failure to pay and the options available to correct the problem. Once your association puts the appropriate pressure on this owner who is going through great strides to fight the bank, I think you will be pleasantly surprised with the results.

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Association Ignores its Own Rules Regarding Pets. Can We Change That?

Q. Our condominium association has rules and restrictions regarding pets, but prior boards have ignored the restrictions, so some owners are keeping pets that violate the rules. I have just been elected to the board, and the new board would like to enforce the pet rules. Can we do that?

A. Enforcement could now be an issue for your community due to passage of time and lack of enforcement by prior boards.   The fact that there is a new board that wants to enforce the documents does not, in itself, fix the problem of prior boards being lax. Under Florida law, if an association fails to enforce valid restrictions, its generally loses the power to enforce because a unit owner or tenant can defend himself by asserting “waiver” and/or “selective enforcement”. However, it is not too late to fix the problem going forward. A properly drafted resolution mailed to all owners can revive a restriction that has been inconsistently or haphazardly enforced in the past, but only prospectively or going forward. Existing violations may need to be “grandfathered” because of fairness, and I would certainly recommend that your board consult with its legal counsel to discuss the need for such a resolution.

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What Happens to Surplus Cash after “Special Assessment”?

Q. When a special assessment is collected for a specific purpose and then that purpose is no longer needed, what happens to the money? Our condo association passed a special assessment because our reserves were inadequate, and I believe there will be money left over after the projects are done.

A. The term “special assessment” is not the most popular term if you live in a community with an association.  A special assessment may be necessary to pay for unbudgeted expenses, and a special assessment may also be approved by the membership for major capital improvements. The funds collected from a special assessment must be used for the purpose(s) set forth in the notice to the owners. Any excess funds are considered common surplus and may, at the discretion of the board of directors, either be returned to the unit owners or applied as a credit toward future assessments. We recommend in most cases that the common surplus be credited toward future assessments, which may allow the association to reduce quarterly maintenance fees.

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Am I Restricted To Talking About ONLY Agenda Items in Meetings?

Q: I was recently told at a Board meeting in my homeowners association that I was not allowed to address the Board unless my comments were aimed at an agenda item. I was under the belief that I could address the Board for up to 3 minutes on any subject related to our community. Can you clarify my rights here?

A: I am happy you asked this question because this is another area of confusion, and we see many abuses on both sides of the fence. Under Robert’s Rules of Order members of an assembly have the right to speak without being recognized by the Chair and ask any question by stating Point of Order or Point of Information. However, this is not the case at community association Board meetings. Pursuant to Sections 718.112(2)(c), and 720.303 Florida Statutes, members have the right to attend meetings of the Board and to speak about all items on the agenda. The Board may, however, adopt reasonable rules governing the frequency, duration, and manner of unit owner statements. For instance, the Board can require owners to “sign up” in advance of the meeting if they wish to speak. As you point out, the Board can also limit the speaker’s time to 3 minutes which is considered reasonable. So, if the item is not on the agenda, the member does not have the automatic right to speak on the topic unless the meeting Chair allows it.

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Faulty Condo Sprinkler Damaged My Belongings. Who Should Pay?

Q. A fire sprinkler went off in my condo building causing $25,000 in damage to my kitchen and other personal items. Although the Condo Association admits the sprinkler is its responsibility, the Board is claiming that the association was not negligent or at fault and is denying any liability for my damages. Since the sprinkler did not perform normally, I think the association, the management company or perhaps the manufacturer should take the blame. Who is right here?

A. We have recently addressed many questions regarding insurance and repair obligations in condominium associations. This is an interesting twist on that issue, but our advice remains the same as prior columns. The association is responsible for insuring and repairing the condominium buildings as originally built, which includes the common areas and the drywall inside your condominium unit. If there is a leak or other casualty that causes damage to your kitchen fixtures and other personal property, Florida law is clear that the damage is your responsibility and you have the obligation to obtain insurance for that type of damage. This does not mean that you or your insurance company cannot pursue any negligent party that may be responsible for the faulty fire sprinkler, but this does not sound like a situation where the association is obligated to pay for the damage inside your unit.

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Any Legal Issues with Part-Time “On Site” Manager or Even “Self Management”?

Q: Our Board is starting to review next year’s budget and issue of management is being debated. The Board would like to cut the costs and fees associated with the professional management and is considering a part-time “on site” manager or even “self management”. Do you see any legal issues involved with this decision?

A: This is more of a business decision, and not legal, but there a few things to consider. We are in favor of hiring a professional management company because most associations significantly benefit from the services, technology and infrastructure these companies can provide. The right management company will provide the Board members with the resources, vendors and information they need to make the best decisions for its members. However, the hiring of a professional management firm is not legally “required” and may not be the best fit for some associations. Many associations are “self managed”, which can mean several things. Many associations, including HOA’s and condominiums, hire a full-time licensed manager and other staff members who are association employees. Your association is the sole focus of these employees, which can be great thing if this overhead is in the budget. Other “self managed” associations are literally managed by the Board members themselves. This is the least preferred alternative and often results in greater personal exposure for the Board members. Managing a community association is a full-time job and should be done by a licensed professional if at all possible. You will need certain expertise that a licensed manager can provide. Before the Board considers taking on this responsibility without a professional manager, the Board should consider making sacrifices in other portions of the budget and make a good faith effort to raise funds to hire a qualified manager.

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What Are The Association’s Options for Hurricane Protection?

Q. Our condominium association is faced with a dilemma regarding hurricane shutters. In your experience, is it better to have the association take responsibility for installing and maintaining shutters, or should this responsibility be put on the individual units owners? 

A. This is a case-by-case decision for each association. The residents in your community should have clarity with respect to hurricane preparation and protection. First, the board should have its legal counsel review the condominium documents to determine if the responsibility for hurricane shutters lies with the association or the individual unit owners. If the shutters are the responsibility of association pursuant to the documents, the association should develop a plan for the installation of the shutters in severe weather and is also responsible for the maintenance, repair and replacement of the shutters. Further, in this scenario the association can go ahead and install hurricane shutters, impact glass or other code-compliant windows without a vote of the owners, and the cost of the installation will be a common expense. On the other hand, if the individual unit owners are responsible for hurricane protection under the documents, the association would need approval from a majority of the owners in order to install shutters or other protection. In a community with a large number of multi-story buildings, it is probably better for the association to accept responsibility and seek a vote for installation of uniform shutters for protection of the buildings and its residents. With respect to installation by unit owners, the Board must adopt hurricane shutter specifications for each building within each condominium operated by the association which shall include color, style, and other factors deemed relevant by the Board. The association cannot refuse installation by a unit owner that conforms to these specifications adopted by the Board. In short, the better alternative depends on a number of factors, some of which are legal and some of which are logistical. The Board should consult with its property manager and attorney if there is confusion in this area.

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Who is Responsible for Drywall Repairs… Association or Owner?

Q: I have been told that Florida law makes the condo association responsible for drywall repairs, but how can our Board possibly pay for repairs when the damage was caused by the unit owner’s carelessness. My understanding in this case is that it is the damaged unit owner’s problem. Can you provide some clarity for us?

A: One of the most common questions about the law on water leaks and drywall repairs is: Who insures what? The association’s policy of hazard insurance covers “all portions of the condominium property as originally installed or replacement of like kind and quality, in accordance with the original plans and specifications”. In a nutshell, this means that the association’s insurance covers all drywall in the unit for losses caused by a covered hazard or casualty. What do we mean by “covered hazard or casualty”? The condo association’s insurance only covers losses such as fire, water intrusion, windstorm and other perils identified in the policy. Not all events that might cause damage are covered by hazard insurance. For example, the breakdown of an air conditioning unit caused by age or normal wear and tear is not a covered hazard under the association’s insurance.   Thus, one of the first questions a Board member should answer when presented with a damage claim, regardless of fault, is whether the damage was caused by an insurable event. If not, the Board needs to have its legal counsel review the condominium documents and determine which party is responsible for repairing the damage. Assuming that the cause of the damage is covered by the association’s insurance, the association pays for the repairs and the insurance deductible is a common expense.  However, if the cause of the damage can be attributed to the owner’s or another person’s negligence, the association may seek to recover the cost of the repair from the guilty party. Further, the association is not obligated to pay for reconstruction or repairs of casualty losses are not timely reported by the owner.  Your Board should explore these complex issues further with its legal counsel.

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Am I Forbidden from Hanging a Clothesline on My Balcony?

Q. Recently a dispute arose in our community regarding clotheslines and drying clothes outside the unit, such as on the balcony. We have rules about this in our documents, but someone on the Board told me that there is a law granting certain rights regarding clotheslines because of energy savings. Can you provide some clarity on this?

A. There is such a law that the association needs to consider before enforcing these rules. Florida is one of the few states that has enacted legislation dealing with clotheslines and other renewable energy resources. Section 163.04(2), Florida Statutes provides that “[a] deed restriction, covenant, declaration, or similar binding agreement may not prohibit or have the effect of prohibiting solar collectors, clotheslines, or other energy devices based on renewable resources from being installed on buildings erected on the lots or parcels covered by the deed restriction, covenant, declaration, or binding agreement.” Before attempting to enforce any rules in your documents with respect to clotheslines, you should review this matter with your legal counsel and design a strategy that protects both the association and the property owner’s legal rights.

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What Contracts Can the Association Approve Without a Vote?

Q. I am upset because my homeowners association fired the management company and hired a new company with only a vote of the Board of Directors. This is an expensive contract with a large management company. I believe the members have a right to approve these contracts, or at least have the right to cancel them at the next annual meeting. Am I correct here?

A. There is a provision in the Florida homeowners association statute regarding the members’ right to cancel a contract, but that provision applies only to bulk communications or bulk cable television contracts.  The Board of Directors generally has the authority on its own to approve contracts for operation of the HOA, including management contracts.  In fact, a contract for a management company does not even need to go out for bid. One exception is when the association is considering a substantial addition or change to the common areas, such as the clubhouse. Unless the HOA documents specifically authorize the Board to spend association funds on a large capital project, the Board will likely need a vote of the membership to proceed.

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Can We Fine Homeowners or Cancel Leases for Unruly Kids?

Q. There are many unruly children in our neighborhood, and many of the parents do not seem to care. We have spent thousands on vandalism, and many of the children continue to trespass into the neighboring private community. Most of the children live in rented homes. Our HOA Board realizes we cannot refuse a lease because of children but has finally arrived at the conclusion that any time a child breaks the HOA’s rules, if they are a renter we would like to cancel their lease with appropriate notice or not renew it. If the children live with homeowners, our Board imposes fines against the owner. We get reports from certain residents regarding the violations and do our best to document, but we cannot always get pictures. What specifically can we do to control this situation?   Can we cancel a lease because of rules violations? Are there other options available to us?

A. The legal options in this scenario depend largely on the strength of your governing documents. If your community documents have “teeth” with respect to rules violations, chances are you have the ability to impose fines against owners and tenants in addition to the right to evict unruly tenants. Adults residing in your community are responsible for the actions of their children, so your association does have the right to take action if the children are violating the community rules. An effective enforcement process starts with documenting the violation and sending proper written notice to the owner or tenant. If the violation is not cured after reasonable written notice from the association or its manager, it may be possible for the association’s legal counsel to start the eviction process for a tenant if there is supporting language in the community documents. Well-drafted documents include language allowing the association to stand in the shoes of the unit owner and evict an unruly tenant and recover legal fees in the process. Another effective strategy for managing unruly tenants is to require an additional security deposit payable to the association. This deposit can be used to pay for any damage caused to common areas or pay fines imposed for violations. Rule-abiding tenants will likely pay the deposit, but careless tenants will likely balk at the deposit and rent somewhere else. Finally, your HOA always has the right to demand that owners and/or tenants participate in mandatory mediation in connection with any rules violations. This process is required by statute for many disputes in your community and forces the unruly owner or tenant to spend money on a mediator and lawyer in the mediation process. If the owner or tenant refuses mediation, the association can file a lawsuit to compel compliance and recover legal fees incurred in the process. You should have your legal counsel review the enforcement portions of your documents and determine whether there is sufficient strength and whether an amendment may be necessary to provide the options discussed above.

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We Don’t Believe This Overweight Dog is a Service Animal. What Can We Do?

Q: Our condo documents have a weight limit for pets. Recently, a tenant moved in with a large dog that clearly exceeds the weight limit. The tenant claims that the dog is a service animal and not a pet. The tenant has no obvious handicap and many residents are concerned that the tenant is taking advantage of discrimination laws. Should the association do something here? 

A: This is a popular topic in community associations, and because of the sensitive nature of the issue there can be much confusion. In a perfect world, the tenant would have asked the association for a waiver of the weight limit before moving into the community. The association could have asked for the proper information to evaluate the tenant’s medical need for this animal and made a decision in accordance with fair housing laws. However, when the animal is already in the community raising eyebrows, it puts the association in a tough situation. We do not recommend demanding the immediate removal of the animal. Rather, the association should send the tenant and the unit owner a notice regarding the weight limit and request documentation showing that the animal is medically necessary. The association’s legal counsel can provide guidance on what medical information can be requested.

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Can Association President Have Pool & Spa Camera Feed in His Home?

Q. Our association has security cameras at the community pool and spa, but we recently learned that the association president has the ability to view the feeds from these cameras from his home. This makes many members uncomfortable. Is this legal?

A. There a few issues to consider here, and we really cannot give you a clear answer without reviewing your association documents and seeing the cameras themselves. First, security cameras should not be installed in areas where homeowners and their tenants and guests have a reasonable expectation of privacy, such as locker rooms, bathrooms, or areas where the camera may record the interior portions of a homeowner’s unit. The most popular locations to install surveillance cameras are at entry gates, recreational facilities and other common areas as a means to deter trespassing, vandalism, property damage, and rules violations. Second, did your association even have the legal right to install the cameras to begin with? If you are living in a condominium, the association may have been required to obtain approval from 75 percent of the unit owners before installing the cameras. In a homeowners association, the board should proper authority in the community documents before spending association funds to install security cameras. Third, who should have access to the video feed? If the association employed a security company and those working for that company have the ability to monitor the video feed for security purposes, one could argue that the president of the association should also have access to the video feed. After all, the president and the other board members are charged with the duty of operating and maintaining the common areas. Thus, if the cameras are installed in a conspicuous place at the pool and spa area such that there is no expectation of privacy for those using the facilities, I do not believe that the association is violating Florida law simply by allowing the president to monitor the video feed for proper purposes. You should still check with legal counsel to ensure that the association took the appropriate legal steps to purchase and install the cameras.

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Separated From Husband, Can I Still Use Community Amenities?

Q. I am separated from my husband and I am no longer living in my home, but my name is still on the title and the mortgage. I would like to still use the community amenities, but I am no longer paying the association dues. Do I still have the right to enter the community and use the facilities such as the clubhouse, fitness center and pool?

A. You probably still have the right to use the community amenities, provided your husband is continuing to pay the association dues. First, you need to review your community documents with respect to membership in the association. You are probably a member of the association if your name remains on the title to the property. Members have the right to use association facilities if they are current with payment of association fees. If the member becomes delinquent for more than 90 days, the association has the right to suspend your use of the amenities until you pay all amounts owed to the association. If payment of association fees is not a factor, the association cannot suspend a member’s right to enter the community and use the facilities simply because you have moved out. Absent a divorce agreement to the contrary, your husband cannot block your right of access either. You should confirm this issue with your attorney, but based on your question I believe you will have right to continue using the community amenities until your name is removed from the property either by refinance or sale of the home.

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Best Way To Access “Abandoned” Units To Check For Post Storm Water Damage?

Q: We recently conducted the annual fire sprinkler inspection for our condo association. During this process we were not able to gain entry to several units due to keys not working or no keys on file. In light of the recent storm and reports of water intrusion, our board president wanted our CAM to check all the units that appear vacant for possible water intrusion or signs of any damage to the units. What is the best and safest way to access these “abandoned” units to make sure there is not significant mold or water damage? 

A: Even it may not be stated in your condo documents, the association does have the right under Chapter 718, Florida Statutes, to inspect possible damage to common elements and to make emergency repairs.  The entry and inspection must be during “reasonable hours”.   For any units that are known to be vacant and abandoned, I would not be concerned with “posting” a notice.  For any units that are occupied and which you do not have a key or the owner is refusing access, the owner will be responsible for any damage that occurs for refusing to provide access.  If you have to change any of the locks to gain access, I would send a short notice to the owners’ last known address informing them that the association is keeping the new key to the unit at the association’s office, which was made necessary by their failure to provide emergency access.

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Good Idea for a Condo or HOA to Accept Payment Plans?

Q. Recently, our association started more aggressive collections efforts and we received several requests from owners for payment plans. Our board is hesitant to agree to payment plans because of the uncertainty of payment and is also unsure what leverage the association has to ensure payment. In your experience, is it a good idea for a condo or homeowners association to accept payment plans for delinquencies?

A. The answer to your question changes with the economy and also depends on other circumstances that are special to your community. When the economy was better, the association had little motivation to accept payment plans because the association’s lien truly gave the association some leverage. Further, if there is equity in the delinquent property, the association should almost never accept a payment plan because a lien foreclosure against that property will probably get the association paid in full. In the vast majority of other cases, however, the association’s lien is often behind a first mortgage lien that substantially exceeds the property value. On these “under water” properties, a payment plan should be considered in select cases with the assistance of legal counsel. We generally do not advise our clients to accept a payment plan unless the delinquent owner agrees to: a) pay a significant portion of the balance as a down payment; b) pay the balance of the arrearage owed in six to twelve months; and c) pay future maintenance fees in a timely fashion. Also, to gain additional leverage, the association should consider accelerating the maintenance fees for the rest of the year before any payment plan for the arrearage is considered.

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Can A Board Member Continually Sit On The Fence?

Q. Our board meetings have recently become contentious when it comes time to vote on approving leases and sales. One of the board members routinely disagrees with the other board members and has now formed the habit of “abstaining” from the vote, claiming she does not want any liability. Can this board member refuse to vote?

A. It is a common misconception that directors can “abstain” from voting, but it is only proper in limited instances. Robert’s Rules of Order provides that a member who does not have an opinion on an issue may abstain from voting on the issue. However, in community associations, a Board Member may only abstain from voting if he or she has a legitimate conflict of interest directly related to the issue or subject being considered. An example of a conflict of interest, which would allow a Director to abstain, would be if the Board was considering hiring the Director’s spouse to be the manager of the association. Barring a direct conflict of interest, it is improper for a Director to abstain. If this Board member continues this habit of refusing to vote, the members should consider pursuing a recall (removal) of that Board member.

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Lien is Filed for Nonpayment of Maintenance – When Can We Foreclose?

Q: Once a lien is filed for nonpayment of maintenance, how long until the association can foreclose? Does foreclosing take a vote of the board? Can the unit be sold or must it be rented? One of our board members is a realtor and expects to be the listing agent on rental or sale and collect a commission. Isn’t this a conflict?

A: Unless this is your first delinquency, which is doubtful, your association should have been previously counseled on these questions. Whether your board has been lax or has not been advised by experienced counsel, it appears that your association needs a change in direction. If you are a condominium association, your association can foreclose on its lien in as little as 60 days. The period is extended to 90 days for homeowners associations. The decision to foreclose does require approval from the board. Single board members should not be making these decisions unless they have the proper advance approval from the board to direct legal counsel. If the association does foreclose and obtains title to the unit, the association has several options. The unit can be rented, which makes sense in a lot of cases if the unit is in reasonable condition. The unit typically cannot be sold if it remains subject to a first mortgage, but experienced legal counsel can advise you on how to apply pressure on the bank and obtain a great result for the association.

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How Should Our Association Fund Hurricane Damage?

Q: Our Board is concerned about the cost of clean-up and repairs after a hurricane. We do not have a tremendous buffer in our operating accounts for those expenses. Passing a special assessment after the damage does not seem like a great option because of the time involved and the uncertainty of collection. Do you have any suggestions for us? 

A: We have seen several communities take out a line of credit with a lending institution to address this financial need. You are correct on the special assessment. Not only will that be an unpopular decision in the community, but it will take some time to raise the funds with an assessment and there will certainly be some owners who will not pay it. The association has the right and duty to manage, maintain and operate the common areas, and a loan is a proper way to meet this obligation under Florida law. Many banks will consider making a loan or extending a line of credit to your association. The loan is primarily secured and collateralized by the assessments paid by your owners, and thus it is a relatively safe loan for the lender. Obviously it is better for your association to stay “debt free”, but it may not be a bad idea to have a line of credit available in the event cash is needed to perform emergency repairs or maintenance.

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When is There Good Cause to Deny a Sale?

Q. Our Board has disapproved sales transactions in the past, and the community documents allow for this with “good cause”, if the Board first receives a written opinion from legal counsel that good cause exists. We are not extremely confident in the opinions from our legal counsel in this area, and we would appreciate your general opinion on when there is good cause to deny a sale…

A. We can provide some guidance on this, but our first suggestion is to amend your documents to provide more clarity on what exactly constitutes “good cause”. We see many documents, particularly in older associations, that are too vague on this subject and it can get the association in trouble if the board makes inconsistent decisions. Experienced legal counsel can provide some language for a document amendment that specifically states the grounds on which a sale or lease can be denied. Typical grounds for “good cause” that we have seen and tested include: 1) the applicant has been convicted of a felony involving violence or theft; 2) the applicant has been evicted from other communities for violations of the community rules; 3) the applicant cannot comply with the community rules based on the application itself (i.e. the applicant has 3 dogs and the community rules allow only 1 dog); 4) the owner of the property is delinquent in the payment of maintenance fees or other charges at the time of application. A current “hot topic” is whether a board can deny an applicant based on credit score or financial history. This can be done but there needs to be specific language in the documents and the board needs to be reasonable and consistent in its review. “Good cause” will certainly not exist if the board wishes to deny an applicant based on race, religion or national origin, which is a violation of federal and state law.

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Sharply Refused Exercise Equipment in New Clubhouse. Is this Fair?

Q: My wife and I recently purchased a home from a resident in a new development. The clubhouse construction was delayed due to the economic downturn of the past few years, but is now under construction and will be finished by the end of the year. I recently suggested some equipment be included in the exercise facility but was told we will not have it. Apparently there was a meeting several months before we purchased that spelled out the changes. I was quite upset and sent a complaint to our management company. I was contacted by an employee of the builder who informed me that he was the President of our homeowners association. Does he have any obligation to the homeowners? Are meetings required? Do we have recourse for decisions that he makes?

A: The board members appointed by the developer do have a fiduciary obligation to act in the best interests of the homeowners. This creates a potential conflict of interest since the president in this case is also an employee of the developer, but it is absolutely the norm for developer employees to serve on the board until turnover. In most cases, the turnover process is smooth because these developer-appointed directors have been through many turnovers and are familiar with the developer’s duties under Florida law. In your case, the decision not to install certain exercise equipment is not typically a decision that is made by the homeowners. The board members make those decisions based on budget restrictions and what they believe is in your best financial interests as a homeowner. That being said, board decisions should be made at a properly noticed meeting. You do have recourse against board members who violate their duties, but you do not likely have “extra” recourse against this president merely because he is also a developer employee. My advice on this issue is to be patient until turnover and then the homeowners will have the ability to manage the association’s money and property.

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Does Condo Board Have To Pay For Owner’s Carelessness?

Q: I have been told that Florida law makes the condo association responsible for drywall repairs, but how can our Board possibly pay for repairs when the damage was caused by the unit owner’s carelessness. My understanding in this case is that it is the damaged unit owner’s problem. Can you provide some clarity for us?

 A: One of the most common questions about the law on water leaks and drywall repairs is: Who insures what?  The association’s policy of hazard insurance covers “all portions of the condominium property as originally installed or replacement of like kind and quality, in accordance with the original plans and specifications”.  In a nutshell, this means that the association’s insurance covers all drywall in the unit for losses caused by a covered hazard or casualty.  What do we mean by “covered hazard or casualty”? The condo association’s insurance only covers losses such as fire, water intrusion, windstorm and other perils identified in the policy. Not all events that might cause damage are covered by hazard insurance. For example, the breakdown of an air conditioning unit caused by age or normal wear and tear is not a covered hazard under the association’s insurance. Thus, one of the first questions a Board member should answer when presented with a damage claim, regardless of fault, is whether the damage was caused by an insurable event.  If not, the Board needs to have its legal counsel review the condominium documents and determine which party is responsible for repairing the damage.  Assuming that the cause of the damage is covered by the association’s insurance, the association pays for the repairs and the insurance deductible is a common expense.  However, if the cause of the damage can be attributed to the owner’s or another person’s negligence, the association may seek to recover the cost of the repair from the guilty party. Further, the association is not obligated to pay for reconstruction or repairs of casualty losses are not timely reported by the owner.  Your Board should explore these complex issues further with its legal counsel.

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Condo Board Say I May Not Install an Alarm System. Can the Association Stop Me?

Q. Our condo building is supposed to be secured and locked form dusk to dawn. My neighbors bypass the system by leaving entry doors open, sticking cardboard in fire doors, and other measures that allow others to sneak in. Complaints to the condo association are ignored. I contacted an alarm company so I could feel safe inside my home. I have been informed by the condo board that I may not install an alarm system. Can the association stop me? After their reaction, I would also like to install a camera so that I can view the hallway prior to exiting my unit. Is that allowable?

A. There are a couple of issues to address in your question. First, does the association have a role in securing the building to protect its residents? Second, can the association regulate what you do in your unit and outside your unit with respect to your own personal safety? On the first question, the primary role of the association is to manage and maintain the condominium building. This includes keeping the building in a state of good condition, and to repair portions of the building when necessary. The association is not, however, a security company.   The association might employ a company that controls access to the community, but the association is not responsible for ensuring the absolute safety of its residents. On the other hand, if an entry door is supposed to lock but does not do so because of lack of maintenance, the association could be responsible due to negligence. On the second question, the condominium association probably does not have the authority in your condo documents to stop you from having an alarm system in your unit. The association can, however, refuse to allow the installation of private cameras in the hallway which is probably a common area. One alternative is for the association to install cameras at the entry doors in such a manner so that unauthorized entries are recorded. You send your concerns to the association’s board by certified mail, and the board members are then obligated to respond to you by law.

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Can Relatives Stay For a Couple of Weeks in My Condo?

Q. My condo association has restrictions on rentals and requires leases to be at least for 30 days. My relatives want to come down this summer and use my condo for a couple weeks while I am away. Will this be allowed given the 30-day rule for occupancy? 

A. I would need to see the language in your condo documents to give you a better response, but typically restrictions on rentals will not prohibit you from allowing guests to temporarily stay in your unit. Unfortunately, many associations we represent deal with abuses in the rental process. Many owners will attempt to circumvent the rental application process by telling the association that the occupant is merely a “guest”. However, a true “guest” is someone who stays on a short-term basis and does not pay rent. If that is the case for your guests, then the rental restriction should not be a problem. To be sure, I recommend that you contact the management office to confirm what is needed, if anything, to register your short-term guests for occupancy. They may need parking passes or other temporary identification.

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Do I Need To Own a Home or Even Live in Florida to Sit On The Board?

Q. I understand that to be a member of the Board of Directors of a Homeowner Association in Florida, you need to own a home in the community. Is this the case? I heard some opinions that you do not need to be an owner in the Association, and that you do not need to a resident of Florida. What can you tell me about this?

A. The question of who is eligible is not the easiest to answer… Florida Statutes Chapter 720 provides that all members of the association are eligible to serve on the board of directors. The definition of an association “member” will be found in the community Declaration or Bylaws, but generally the members of an association include only those who are homeowners as shown in the public land records. It is possible that the community documents might grant membership rights to those who do not own a home, so you need to check your community documents to fully answer this question. There is no law requiring members of the association to reside in Florida in order to serve on the Board. Many homeowners live outside Florida for all or a portion of the year and still participate as Board members. Florida law allows absentee board members to attend meetings by speakerphone.

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They Won’t Replace Their Old Roofs, What Can We Do?

Q. I live in a small community in Naples with a Homeowners Association with 38 attached villas.  The roofs on the units are original and we do not have roof reserves.   Many of the owners understand the need and necessity for a new roof and have replaced their roof; however, others are refusing to do so.   The problem that confronts us now is that homeowners are having their hurricane insurance cancelled because of the aged roofs and can’t convince the attached unit owner of the importance of a new roof.  Is there any action that can be taken by the individual homeowner or the HOA to make it mandatory for the adjoining unit to also replace their roof when the adjoining unit has had their insurance policy or part of the policy cancelled?

A. This problem in HOA’s can occur when the HOA documents are not drafted or amended properly. Your villas are physically organized like condominiums, where the owners are sharing common walls and a roof. If your community was organized as a condominium, the association would have responsibility for the roofs and there would be reserves in place to repair the roofs when they fail. However, I am assuming that each owner in your HOA is responsible for his or her own roof under the HOA documents and that the documents are inadequate with respect to maintenance and repairs.   If the documents were drafted property, there would be language allowing the HOA to step in and make the necessary repairs if an owner failed to maintain the roof, particularly if there was damage to other villas. You should have an attorney review the HOA documents to determine what remedies you may have. Perhaps there is language allowing the HOA or an individual villa owner to pursue another owner who does not maintain his villa or otherwise causes damage or harm to other owners. I would also recommend that your HOA Board meet with its legal counsel to discuss necessary document amendments so that this problem does not continue.

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What Rights Do I Have When Nearby Construction Affects My Property?

Q. My neighbor is putting in a swimming pool and I am being asked to allow access over my yard for the construction. Our homes are close together, so I don’t believe that the pool company can access the rear of my neighbor’s house without going over my property. What will happen if I refuse to allow the access, and should the homeowners association be involved as well? 

A. In Florida, it is very common for homes to be close together and or even practically attached. These types of development are often referred to as “cluster living” or “detached villas”. Further, these homes are in almost every instance part of a homeowners association, so it can be falsely assumed that the association controls all property and that your permission is not necessary for construction that affects your home.   Whether or not there is an association, chances are that you own the lot that your home sits on. This can be confirmed by reviewing the subdivision plat or a survey of your property. If you own the lot and access over a portion of your property is necessary for construction traffic, you absolutely have the right to approve or reject the access. The pool company did the right thing by asking your permission. However, it should not be necessary to refuse the access provided you have some protection. First, ask the pool company if they are willing to repair any damage to your property caused by the access. It is likely that there will be extra wear and tear on your landscaping from the construction traffic. Second, you should ask for evidence of insurance and also an agreement to hold you harmless in the event of any injuries that may occur on your property. If you are protected from property damage and liability, the neighborly thing to do would be to allow the temporary access. Regarding the homeowners association, it is almost a certainty that the association will need to approve the swimming pool improvements. This can be confirmed by reviewing the community documents, which probably contain a procedure for securing approval for exterior alterations. In some cases, the community documents even require the homeowner making improvements to obtain permission from next-door neighbors. Contact the association’s property manager to make sure that they are aware of your neighbor’s plans. If you run into any problems, you should consult with an attorney.

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Delinquent Wealthy Doctor… Why Can’t We Be More Aggressive?

Q: I am on the Board of a high-end HOA community in Naples. We do not have any delinquencies except for one property owned by a doctor who is rumored to be wealthy. There does not appear to be a reason why we cannot be aggressive with this owner, but our current lawyer is not able to solve the problem. Do you have a suggested approach here?

A: Your association almost certainly needs to enforce its lien rights, in addition to pursuing a money judgment against this owner for the delinquent assessments, interest, late fees and legal fees incurred. If the association obtains the appropriate judgment, not only can it take the property by lien foreclosure, but the association can force the owner to fill out a sworn statement listing all of his or her property, income and other assets. Once that information is discovered, the association can apply serious pressure by garnishing wages, bank accounts and perhaps seizing other assets such as vehicles or vessels by a process called levy. If your association is not considering these remedies against a wealthy owner, it needs to seek more aggressive representation.

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Delinquent Owner lives out of town and his Friends Are Abusing The Facilities!

Q: We have an owner who is seriously delinquent and lives up north year round. However, he allows friends to visit and use the unit from time to time in the winter months. His guests use the pool and the other amenities and it is really causing a stir with other residents. What can we do to deny access to the unit?

A: Unfortunately, the association must allow the owner and his invited occupants to have access to the units. The association cannot legally suspend the rights to use common elements needed to access the unit, parking spaces or elevators. However, the association can suspend the right to use all other amenities, common elements and association property by sending a single notice, approved by the Board, to the owner and any occupants. If the association has the technology to disable key cards that provide access to the pool area, clubhouse and other common areas that are not needed to allow access to the unit, this can be an effective enforcement tool and should be done for all owners who are delinquent more than 90 days

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Should Meeting Notices Stay Posted Until The Meeting Commences?

Q: Meeting notices must be posted 48 hours prior to board meetings. Is there a requirement that they stay posted until the meeting happens?  On more than one occasion, the meeting notice and agenda have been taken down several hours prior to the meeting.

A: Yes, the meeting notice should stay posted for at least 48 continuous hours prior to the meeting.  Chapter 718 of the Florida Statutes governing condominiums provides: “Adequate notice of all board meetings, which must specifically identify all agenda items, must be posted conspicuously on the condominium property at least 48 continuous hours before the meeting except in an emergency.”  The word “continuous” is the key to your question, in our opinion.  One could argue that the association could post the notice more than 48 hour in advance, leave it for 48 continuous hours only, and then remove the notice.  However, the better practice is to leave the notice posted until the meeting begins to avoid any legal challenges.  Chapter 720 governing HOA’s has slightly different language, but our opinion would be the same if your community is an HOA.

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New Laws Affecting Condos, Cooperatives & HOAs…

Governor Scott has signed a bill into law affecting Condominiums, Cooperatives and Home Owner Associations

SB 398 Effective July 1, 2017

The bill substantially revises requirements for estoppel certificates for condominium, cooperative, and homeowners’ associations.

The bill:

* Revises the period in which an association must respond to a request for an estoppel certificate from 15 days to 10 business days.

* Requires an association to designate on its website a person or entity with a street or e-mail address for receipt of a request for an estoppel certificate.

* Provides an estoppel certificate delivered by hand, mail, or e-mail has a 30-day effective period, and a certificate sent by regular mail has a 35-day effective period.

* Identifies the persons who may complete the estoppel certificate on behalf of the board or association.

* Specifies the information the association must provide in the estoppel certificate.

* Prohibits an association from charging a fee for an amended estoppel certificate, and provides a new effective period of 30 days or 35 days, depending on the method used to deliver the amended certificate.

* Provides an association waives the right to collect any moneys owed in excess of the amounts set forth in the estoppel certificate from any person, and his or her successors and assigns, who in good faith relies upon the certificate.

* Prohibits an association from charging a fee for preparing and delivering an estoppel certificate that is requested, if it is not delivered within 10 business days.

* Authorizes compliance with the estoppel certificate requirements for a cooperative association, as existing law provides for condominium and homeowners’ associations.

* Permits an association to charge a maximum fee of $250 for the preparation and delivery of an estoppel certificate, if there are no delinquent amounts owed to the association.

* Permits an association to charge an additional $100 fee for an expedited estoppel certificate delivered within 3 business days after a request for an expedited certificate.

* Permits an association to charge an additional maximum fee of $150, if there is a delinquent amount owed to the association.

* Specifies the maximum fee an association may charge when it receives simultaneous requests for estoppel certificates for multiple units or parcels owned by the same person and there are no past due monetary obligations owed to the association.

* Provides a lender or purchaser who pays for the preparation of an estoppel certificate may not waive the right to reimbursement if the closing does not occur and the prevailing party in a suit to enforce a right of reimbursement shall be awarded damages, attorney fees, and costs.

* Authorizes a cooperative to charge a fee for preparing and delivering an estoppel certificate but the authorization must be established be a written resolution adopted by either the board or a written management, booking, or maintenance contract.

* Requires the Department of Business and Professional Regulation to adjust the estoppel certificate fees for inflation every five years, rounded to the nearest dollar, and to publish the adjusted amounts on its website.

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As a Realtor, Can I Contact the Mortgage Holder and Sell a Foreclosed Property Since the Association Now Has Title?

Q: I am a realtor who has been contacted by an association to list and sell a property they have taken title to by foreclosure. The problem is that the property remains subject to a first mortgage and the former owner is nowhere to be found. I would like to simply contact the mortgage holder and sell the property since the association now has title. Can I do this?

A: You can contact the mortgage holder, but you will probably find that the mortgage holder will not discuss the loan with you and that you need the prior owner’s cooperation to complete this sale. When an association takes title by foreclosure of its lien, the first mortgage will survive that foreclosure. The reason that the association ended up with the title is because the property was not valuable enough for a third party to satisfy the first mortgage and the association at the foreclosure sale. Thus, the association gets the title by foreclosing its lien, “subject to “ the first mortgage lien. If you can get the prior owner to cooperate in a sale at this point, that would be ideal. It would be similar to a short sale, with the association conveying the property. However, it is been our experience that most banks are not helpful in this situation when the prior owner is not cooperating. The prior owner is the bank’s borrower, and the bank wants to deal with its borrower. I would suggest writing a letter to the prior owner offering a financial incentive to participate in the sale. If that does not work, I would recommend finding a tenant for the property if the association is willing to rent it.

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Are Long Standing Board Members Abusing Authority?

Q. Are Board members in my condominium association subject to any term limits? Some directors have been on the board for years and I’m concerned about abuse of authority.

A. Florida law does limit the length of time for a director’s time in office, but there is no legal limit on the number of times that a director can stand for reelection. On the length of a director’s term, Florida law provides for 1-year terms unless the members approve staggered terms of 2 years. We recommend staggered 2-year terms to our clients in many cases, which can provide some continuity on the board. A complete turnover of the board every 12 months can often cause disruption in the community and result in changes that may not be unnecessary.

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Slack Condo Board is Causing Community Neglect. What Can We Do?

Q. All but one of our condo board members go north for the summer and stop paying attention to the community. The remaining board member is oblivious. Our grass is half dead. The response from the board is “lack of water”. I wade through the rain flooded parking lot almost daily. The common areas are filthy. People drop trash and spill things and it stays until other owners clean it up. The property manager does not respond and only comes to our property for the annual meeting. None of the board members belong on the board, but they are reelected because they contact the non-resident owners and tell them how to vote. It has been the same board for years. Can the owners call the vendors since no one else will? What other options do we have to improve this situation?

A. As discussed in the feature question this week, the association is primarily responsible for managing and maintaining the common areas, which includes the landscape, walkways and pool areas. If you are not a board member, it is not recommended that you contact vendors, and the vendors will probably not deal with you if you lack authority to act for the association. Again, you should make demand upon the board by certified mail to address these maintenance issues. If the board does not provide a reasonable response within 30 days of your demand, then your next step would be a petition for arbitration with the Division of Florida Condominiums, Timeshares and Mobile Homes. If you would prefer to exhaust other avenues before pursuing arbitration, you could also gather your fellow unit owners and attempt a recall of the board members. A Florida attorney can help you with these remedies that you have as the owner of a condo unit.

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What Can I Do to Feel More Secure?

Q. Our condo building is supposed to be secured and locked form dusk to dawn. My neighbors bypass the system by leaving entry doors open, sticking cardboard in fire doors, and other measures that allow others to sneak in. Complaints to the condo association are ignored. I contacted an alarm company so I could feel safe inside my home. I have been informed by the condo board that I may not install an alarm system. Can the association stop me? After their reaction, I would also like to install a camera so that I can view the hallway prior to exiting my unit. Is that allowable? 

A. There are a couple of issues to address in your question. First, does the association have a role in securing the building to protect its residents? Second, can the association regulate what you do in your unit and outside your unit with respect to your own personal safety? On the first question, the primary role of the association is to manage and maintain the condominium building. This includes keeping the building in a state of good condition, and to repair portions of the building when necessary. The association is not, however, a security company.   The association might employ a company that controls access to the community, but the association is not responsible for ensuring the absolute safety of its residents. On the other hand, if an entry door is supposed to lock but does not do so because of lack of maintenance, the association could be responsible due to negligence. On the second question, the condominium association probably does not have the authority in your condo documents to stop you from having an alarm system in your unit. The association can, however, refuse to allow the installation of private cameras in the hallway which is probably a common area. One alternative is for the association to install cameras at the entry doors in such a manner so that unauthorized entries are recorded. You send your concerns to the association’s board by certified mail, and the board members are then obligated to respond to you by law.

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When Can Association Enter Property to Cure Maintenance Violations?

Q. I am on the Board of Directors for a homeowner’s association which has some homes in bank foreclosure and the owner is not maintaining the property.  The homeowner’s association wants to perform maintenance on the exterior of the home, including pressure washing the roof and driveway, and wants to maintain the lawn, including trimming the hedge and trees.  The governing documents dictate that these are the responsibilities of the owner.  Can the homeowner’s association undertake these tasks and more importantly can they charge the owner for the cost of the maintenance?

A. Abandoned, distressed, and unkempt properties within homeowner’s associations have been a source of growing concern throughout Southwest Florida. The answer to your question will be found in the association’s governing documents.  Many association’s governing documents provide the association authority to exercise “self-help” measures, including performing maintenance on any unsightly homes so that the standards of the community are adequately maintained.  If the governing documents allow the association to access the property and perform the maintenance, there is usually authority to also charge a special assessment to that property for the costs of the work. If the governing documents provide this authority, we advise that the association send the owner a letter stating the specific remedial actions the association intends to undertake, the date and time that they will be on the property to undertake those actions, and whether or not the cost of the same will be charged against the property. Prior to undertaking such action, we advise that the association seek legal counsel’s assistance to ensure that there is legal authority to proceed. Further, the association should also consider the occupancy status of the property as some residents could be confrontational if someone enters their property.

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Tenant in Our Condo Doesn’t Have Association Approval… How Can We Remove Them?

Q: If a tenant has taken occupancy in our condominium building without approval from the association, can this be considered a trespass on the condo property? If so, what can the association do to remove the tenant and penalize the owner for not complying with the leasing rules?

A: If your condominium documents are well written with respect to leasing, there should be sufficient authority for the association to take strong action. While the association could argue that an unapproved tenant is trespassing on condominium property, this is not likely going to be considered a criminal matter. The better alternative is for the association to employ all civil remedies available under the condo documents and Florida law, which can include daily fines of $100.00 and eviction of the illegal tenant. In any lawsuit to remove such a tenant, the association would also be able to recover its attorney’s fees and costs. Further, if a unit owner continues to violate the association’s rules with respect to leasing, the association can suspend or revoke the owner’s right to lease in the future if the condo documents so allow. Your association legal counsel can confirm whether your documents have sufficient authority for the association to pursue eviction and other strong action.

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Am I Allowed to See Complaints Made Against Me by Neighbors?

Q:  Are neighbor complaints about another homeowner open for member examination under an HOA?  One or two of my neighbors complain continually about my property. There is absolutely nothing wrong with my house, particularly in comparison to properties surrounding me. However, they single me out and pound on the Board about me. I file ARC modifications on everything, including items that do not require permission. My patience is running thin. I would like to pursue charges against my neighbors. However, I would like to see all the complaints they have filed over the years first. Am I allowed?  

A. You are allowed to see and copy written complaints that are submitted to your HOA. These records are considered “official records” of the association, and as a member of the association you have the right under Florida law these “public” records. The concept is similar to your right as a taxpayer to see records maintained by the County in which you reside. Pursuant to Chapter 720, Florida Statutes governing HOA’s, members of the association have the right to inspect and copy written records related to the “operation of the association”. This is a broad scope of records that are open for your review and generally will include any records maintained by the association with the exception of attorney-client privileged documents and other records containing sensitive personal information. Written complaints from other members about your home should certainly be made available to you, and the association could be exposed to daily fines and attorney’s fees if it fails to respond to your proper written request to see these complaints. When making your request to the HOA, you should also seek access to records involving complaints against other properties to make sure

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Am I Allowed To Build an Energy Saving Device on My Roof?

Q: I want to install an energy saving device on my roof that will provide day lighting in my home by natural sunlight. The HOA Board in my community has indicated that this will be voted down if I proceed if I seek formal permission. I believe there is a law in Florida prohibiting the HOA Board from outright refusing this device. If the HOA Board does in fact refuse my request, what are my legal options?

A: You are correct that Florida law does prohibit your HOA’s Board from outright denying permission to install this type of device. Even if the community covenants and restrictions give the HOA the right to deny exterior alterations and improvements, the HOA must allow this type of device under a special exception in the Florida law. The HOA can adopt a rule requiring the device to be installed in a particular location or at a particular angle that is aesthetically less offensive, but the device is allowed regardless of the HOA’s recorded covenants. The same concept applies to standard dishes that allow homeowners to receive a television signal by satellite. The best course of action for the HOA is to be aware of these special laws for such alternative devices and adopt clear criteria regarding acceptable locations so that there is little guesswork required when owners seek permission from the HOA.

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Can my Association Be Obligated to Find a New Buyer if a Sale is Denied for Good Cause?”

Q: Our condo documents obligate the association to purchase a unit if the Board denies a purchaser. We are also obligated to find a replacement tenant for a unit owner if we deny a lease. This is becoming a real issue because we effectively cannot deny a sale or a lease and we want the ability to do so if the new owner or tenant has a criminal background or terrible credit history. Do you have any suggestions? 

A: These provisions in condo and HOA documents exist to prevent the Board of Directors from arbitrarily and unreasonably refusing sales and leases, which can effectively keep a unit owner from freely enjoying and transferring his or her property. The law tends to favor the free use and transferability of real estate, unless the condo or HOA documents have reasonable restrictions on a transfer, lease or sale. It sounds like you need to have the association’s lawyer review the documents to determine if the association can deny a sale or lease for “good cause” without the obligation to find a replacement purchaser or renter. Many documents we see allow the association to deny a new purchaser or tenant because of criminal convictions, poor credit history or a history of evictions or disruptive behavior in other communities. These restrictions are enforceable if they are reasonable and if the association is consistent in doing so. If the association does not have the authority in its documents to regulate and approve new owners and tenants, it will have limited control on this issue and the problem is compounded by the fact that the association has to find a replacement buyer or tenant who is willing to pay the same price or rental rate. This can be very difficult for the association to do, and thus I recommend that you consider a comprehensive document amendment giving the association the right to deny problematic applicants and impose fines and penalties against owners and tenants who refuse to comply with the transfer process.


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Owner Has “Two Property Plan” – Are There Ways To Prevent Her Strategy?

Q: We have an owner in our condominium who now owns two units. Her original unit is “under water” on the mortgage and she has told neighbors that she is going to let it go back to the bank. She inherited the new unit, which has equity. She is going to move into the new unit and pay maintenance fees on it, and we believe she will stop paying maintenance fees on the original unit when it goes into foreclosure. Can we still lien the new unit? If not, are there any ways to prevent her “strategy”?

A: We cannot fully answer your question without reviewing your condominium documents, but our guess is that your documents probably do not allow the association to place a lien on a unit that is current on maintenance fees. Certainly, the association will be able to lien the delinquent unit, in addition to imposing suspensions on the unit owner’s rights if she becomes delinquent. A better strategy in this case might be to obtain a money judgment against the owner with respect to the delinquent unit.   That judgment could become a lien against the other assets of this owner, including the new unit with equity. Depending on whether the new unit qualifies as the owner’s “homestead”, this judgment lien could result in significant pressure and force the owner to consider other alternatives such as a payment plan or short sale for the original unit.

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Can Our Association President Have a Criminal Record?

Q. A member of the Board of Directors of our Homeowners Association, who has also been appointed by the Board as the Association President, was adjudicated guilty in 2006 of two counts of FS 893.13(6)(a), Possession Of A Controlled Substance, a third degree felony, and of three counts of FS 893.13(7)(a)9, Obtain Or Attempt To Obtain A Controlled Substance By Fraud.  This person has not disclosed his criminal record to the members and the Board either before or after he was elected to the Board and appointed President.  Is this person eligible to serve on the Board and as the Association President? 

A. Under the Florida laws governing homeowners associations, certain homeowners are not eligible to serve on the Board of Directors. Specifically, a homeowner who is delinquent in the payment of any fee, fine, or other monetary obligation to the association for more than 90 days is not eligible for board membership. In the case of your Board president, a person who has been convicted of any felony in Florida or in a United States District or Territorial Court, or has been convicted of any offense in another jurisdiction which would be considered a felony if committed in Florida, is also not eligible for board membership unless such felon’s civil rights have been restored for at least 5 years as of the date the homeowner seeks election to the board.  Now that you know the law on this issue, it is time to determine whether this homeowner’s rights have been restored for at least 5 years. The association’s legal counsel can assist with that issue. If it turns out that his rights have not been restored, the board president would immediately be ineligible to continue serving. Fortunately for the rest of the board members, the validity of any action by the board is not affected if it is later determined that a member of the board is ineligible for board membership.

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Should We Form a Splinter Neighborhood Association?

Q: Our community is small but part of a large master HOA. We only have 50 single family homes, and the master HOA charges us a small annual fee and we don’t receive any services that I know of. Would it be advantageous for us to form a neighborhood association to manage our community and provide better services? 

A: While it may not feel like you are getting any services from the master association, chances are you are paying for your community’s share of the common roadways and landscape and perhaps a guardhouse or other common amenity. Before undertaking the process of forming a new association for your neighborhood, the community leaders should really think about their goals. Do you want more control on aesthetics and architectural issues?   Do you want more restrictions on leasing, pets and basketball hoops? If your master association documents are fairly basic in terms of rules and restrictions in your community, you might find if you polled your neighborhood that the residents enjoy the freedoms that they have with their properties. Therefore, my first suggestion is that you schedule a “town hall” type meeting with your residents to discuss the pros and cons of forming a neighborhood association. An advantage of having an association is that the homeowners can bargain for bulk services such as landscaping and cable television. A disadvantage, as discussed above, is the additional restrictions and regulation some owners may not want. Further, any homeowners who do not wish to join in the recording of your new HOA documents will not be bound by them.   If you struggle to get the support you need, you might consider forming a volunteer homeowners association that can provide some services to the community.

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Are We Insured For Kids Summer Camp in HOA Country Club?

Q. The country club inside our gated community is holding a summer camp for children at the pool area.  They will enter the community via school bus twice a week.  The master HOA is not related to the club, but it is concerned about the liability.  Is there some sort of indemnity or waiver we should obtain from the club?  Please advise.

A. If the master association is not legally affiliated with the country club, the only liability I see for the HOA relates to use of the HOA’s roads and access facilities. In all likelihood, the HOA owns and insures the roads inside the gated community and the country club has an easement over those roads for access to the club. The HOA should check with its insurance company to make sure that there is sufficient coverage for the school buses. Further, the HOA could require the club to add the HOA as an additional insured with respect to the club’s insurance for these activities. The HOA could also require the club to provide an indemnity, but the HOA should expect resistance from the club’s attorney if the access for the school buses is otherwise lawful and not excessive.

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Double Standards For Double Pet Owners?

Q. Our association has a rule on the books about the number of pets and types that can be owned. According to the rules no more that one dog can be owned at the same time. This rule hasn’t been enforced in years. There are quite a few residents in our community that own two or more dogs and yet the board is planning on litigating against one resident who is allegedly violating the pet rule. Can they do this? Doesn’t selective enforcement come into play here? Thank you in advance for an answer to these issues.

A. The resident being pursued for a violation of the pet rule might very well have good defenses based on selective and arbitrary enforcement. The association could have several issues here. First, is the association rule consistent with the recorded covenants in the community Declaration and bylaws? If not, the rule might not be enforceable at all. Second, while pet and other reasonable restrictions are generally deemed to be valid, the restrictions could lose their validity if they are not enforced on a consistent basis over time. We generally do not chastise our association clients if they delay enforcement efforts for a year or less, but if the association ignores the violations for years and then attempts to enforce a rule against a single resident, the association will likely have problems in court. If the association goes to court on this isolated violation and loses, it will also be responsible for the pet owner’s attorney’s fees and court costs.

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Can Our Board Have a Meeting Behind Closed Doors?

Q: We are having some issues with a few employees of our condo association. The issues involve job performance and insubordination. Our Board needs to discuss a resolution but we do not want to do it publicly because many unit owners will be vocal and the meeting could get out of hand. Is there a legal way for our Board to discuss this behind closed doors?

A: Your Board can properly meet in a “closed” session to discuss personnel matters. Please refer to Florida Statutes section 718.112 (2) (c). Issues with job performance involving association employees certain falls within this exception to the rule that all Board meetings be open to the membership. The only other exception involves meetings with the association’s attorney to discuss pending or threatened litigation. Technically, the association should still post a notice of the closed meeting at least 48 hours before the meeting. The posting requirement may seem redundant, but the statute still requires that there be notice to the members of all meetings.

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Girl Showers and Swims Naked at Our Community Pool!

Q. Our board would like to know what to do about a female resident who showers and swims naked at the community pool. We are a condominium community of 48 units located within a large gated community. This resident has been seen by many people including contractors that work at our small community. The board would appreciate any recommendations you have so that we can stop this behavior.

A. This is the first question we have received of this nature. We have received questions about loud music, aggressive pets, unruly tenants and other nuisances, but we have never encountered this. The short answer is that this is primarily a criminal matter. The next time that the resident is witnessed nude in the community, it should be reported to the Sheriff’s office. Certainly, the condo association should also issue a written violation notice and impose a suspension of the amenities, but the suspension requires a hearing with your violations committee. The quickest way to resolve this is to also contact the criminal authorities the next time this happens.




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Large Dog Barking All Hours Of The Day… Help!

Q. There is a large dog in our condominium building, but there is no size restriction in our condominium documents.   The dog has been seen off leash, but the main problem is loud barking at all hours of the day. The property manager has warned the resident who owns the dog, but the problems continue. What is the most effective way to stop these problems?

A. Assuming that your property manager has made the unit owner aware of the problem, the next step is a letter from your association’s attorney advising that the owner and tenant will be fined and that the dog will be removed if the nuisance does continue. In the interim, your property manager should be logging the dates of the violations and gathering the necessary data and evidence in the event that a lawsuit is required to remove the dog. Whether the dog’s barking is a nuisance that will be recognized and penalized by a court of law can be a matter of opinion, so your association should be prepared with multiple witnesses and even an audio recording of the barking if possible. The association can impose fines and suspend common amenities due to violations of the condominium documents, but the most effective method of removing this type of nuisance from the building is a lawsuit for removal of the nuisance animal, which will result in recovery of the association’s legal expenses if it wins the lawsuit.

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Is Imposing a Lawsuit The Best Option for HOA Unpaid Fines?

Q. Our homeowners association has imposed $1,500 in fines against a homeowner for several different violations that have not been cured. The yard has not been landscaped for months, and the roof needs pressure washing. The owner did not pay the fines and our board is considering a lawsuit in small claims court to collect. Is this a good idea, and are there better alternatives?

A. Small claims court can result in a money judgment against the owner for the unpaid fines, but your lawsuit also should include a claim for an injunction against the owner. An injunction can result in a court order against the owner requiring that the necessary maintenance work be performed, and failing to obey the court order can result in contempt of court. The amount of the fines also provides a window to potentially put a lien on the home. While the condominium statute does not allow fines to become a lien on a unit, the homeowners association statute provides that fines of less than $1,000 cannot become a lien. If your association really wants to be aggressive in its collection efforts here, and also apply additional pressure to get the necessary work done, your board should consider filing a lien for the unpaid fines.

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