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by Howard J. Pearl / Becker
Shareholder
Tags: Condo and HOA Law
In general, a community association is responsible for operating and maintaining the common areas of the community (in the case of homeowners’ associations), and the common elements (in the case of condominium associations). If there are trees located on these common areas/elements, the association’s maintenance duties will include trimming and even the removal of trees that may be dead or dying. Before performing any significant trimming or removal of trees, however, an association must determine whether any prior governmental approval is required.
It is common for counties and/or cities to have ordinances regulating the planting, removal, and replanting of trees in residential areas and requiring a permit prior to the removal of certain trees. Section 163.045, Florida Statutes, which went into effect on July 1, 2019, appears to change the extent to which local governments can enforce such tree regulations. Interpretation issues, however, leave the true scope of the statute unknown, particularly as it relates to community associations.
The statute, which was intended to strengthen property owners’ rights against local government overreach, prohibits local governments from requiring notice, application, approval, permit, fee, or mitigation for the pruning, trimming, or removal of a tree on residential property if the property owner obtains documentation from an arborist certified by the International Society of Arboriculture or a Florida licensed landscape architect that the tree presents a danger to persons or property. Additionally, under the statute a local government may not require a property owner to replant a tree that was pruned, trimmed, or removed in accordance with this section. [Note: Section 163.045, Florida Statutes, does not apply to the exercise of specifically delegated authority for mangrove protection pursuant to ss. 403.9321-403.9333, Florida Statutes.]
In applying this statute, it is important to note that it only applies to “residential property” and only to trees which are documented by a certified arborist or a Florida licensed landscape architect as “present a danger to persons or property.” Both exemption requirements present interpretation issues. The fact that “residential property” is not defined has caused some governmental authorities to question whether this exemption would even apply to common areas/elements in the community association setting. Additionally, the requirement that a certified arborist or licensed landscape architect must document that a tree “presents a danger to persons or property” is problematic in that dangerous is not a term that is normally used or defined in the tree care industry’s risk assessment standards. Rather, assessments of tree safety by such professionals focus on the qualified risk of trees, and how this relates to the statute’s use of the word “danger” remains to be seen.
Local governments have acknowledged that the statute sets up some interpretation issues, and it has been reported that different jurisdictions are reaching different results. The consequences of an association, without prior approval, trimming or removing trees in a jurisdiction that is interpreting this statute as not applying to common areas/elements could be code enforcement actions, costly fines, or other remedial measures. For this reason, before trimming or removing trees from the common areas/elements, it is recommended that associations consult with their association attorney to discuss how their local governments are interpreting this statute and whether or not local ordinances must still be followed before pruning, trimming, or removing trees.
Sara K. WilsonAttorney at Law
Tags: Common Area Issues, Condo and HOA Law
Patrick C. Howell of Becker
Last year, Florida politicians attempted to weaponize Chapter 558 of the Florida Statutes and eviscerate the cause of action for violations of the Florida Building Code. Thankfully, that legislation died in committee and never saw the light of day.
Unfortunately, through H.B. 583 filed by Rep. Clay Yarborough, R-Jacksonville, and S.B. 736 filed by Sen. Travis Hutson, R-St. Augustine, developer-backed politicians are once again seeking to weaponize Chapter 558, and, this time, completely eliminate the tolling provisions in Section 95.11(3)(c) of the Florida Statutes for latent construction defects.
In their current iterations, Chapter 558 and Section 95.11(3)(c) are consumer- friendly provisions drafted and signed into law to protect Florida homeowners, homeowner associations and condominiums from defective construction, provide for the resolution of construction defect claims, and promote the settlement of claims without litigation.
Chapter 558 was passed by the Legislature years ago to assist with the resolution of claims outside of litigation. It requires that a party damaged by construction defects submit the claim to the at-fault developer or contractor, allows for inspections, and gives the developer or contractor an opportunity to settle the claim.
This process has worked effectively for many years and has resulted in countless settlements without expensive litigation. The changes proposed during this legislative session would severely damage Chapter 558 and the ability of homeowners, HOAs and condominiums to timely submit claims and foster settlements outside of court.
First, the proposed amendments take a heavy-handed approach with regard to owners, condos and HOAs versus developers and contractors. Under the changes proposed, if an owner, condo or HOA rejects a settlement offer, they must then prove that the offer wasn’t enough to address the repairs.
However, what is the penalty for a developer or contractor ignoring a properly served and documented Section 558 claim? Nothing. Just this one provision shows how anti-consumer and pro-developer this bill is.
Second, poison pill language has been worked into the bill that would require that a party receiving settlement funds (1) execute a contract to start repairs within 90 days; and (2) complete the repairs in one year.
Beyond the big government incursion into our day-to-day decisions, which is by itself disturbing, here’s the nightmare scenario this provision sets up: A condominium association has a multiparty claim against the developer, contractor, subcontractors and design professionals for a structure built with numerous defects to the roof, framing, stucco, foundations and windows.
The stucco subcontractor makes an offer to settle related to its scope of work. The owner accepts the offer. Under this bill, a contract to complete the repair to the stucco must be finalized within 90 days and the work must be completed within a year.
This is despite the fact that the owner has not settled with the contractor, developer, roofer, the window supplier or any of the other trades. So the work to the stucco gets completed, as mandated by this bill, and the claims continues against everyone else.
Two years later, the owner gets a verdict against the other parties and has the money to address the remaining defects. Unfortunately, the newly replaced stucco now has to be torn off to address the defective framing underneath the stucco, the windows installed in the stucco walls, and the roofs with kickouts and other elements adjacent to the stucco. It’s doubtful that anyone would ever accept a settlement offer under these circumstances.
This provision sets up for failure a claim made under Chapter 558, as well as the resulting settlement offer, at least for claims involving defects to more than one building element. As such, this amendment just won’t work for condominium towers, multifamily buildings, or homes constructed by dozens of different trades.
Third, the new proposed Section 558.0045 requires that the judge in a pending construction defect case appoint a third-party expert engineer, contractor or building code inspector to inspect the structures involved in litigation and issue a report 15 days later. The bill doesn’t detail how this appointed expert is to be paid beyond the statement that “the parties shall compensate the expert.”
So under this bill, each of the parties have the expenses of their own expert witnesses, plus now they have to share in the expense of an additional expert witness or witnesses. Wealthy developers will be easily able to foot the bill for these extra costs, but such will be a difficulty for an HOA, condominium or individual owner.
Despite the added expense required by this bill, the third-party expert does not have the ability to make any sort of decisions that bind any of the parties. So what really is the point? Also, it is unclear who would be the party contracting with the expert, and it’s hard to see any court signing off on such a contract. As such, what expert would expose themselves to the liability for these inspections without some contractual protection? Why would they?
Fourth, the new proposed Section 558.0046 requires that a claimant receiving compensation repair the defect. But why? If a defect renders a building uninhabitable and the plaintiff receives compensation for that loss, why shouldn’t they be able to demolish the building and use the settlement or verdict proceeds however they want?
The government should not be in the business of telling its citizens what to do with such proceeds.
Furthermore, settlements often occur because a plaintiff decides to take less than what they are owed, repair some defects and live with the others that don’t affect habitability. This provision would discourage such settlements, which goes against the very purpose behind Chapter 558.
As with last year’s disastrous bill, the proposed amendments to Chapter 558 also go so far as to insert big government into the relationship between a homeowner and their mortgage company. The amendments add a new subsection requiring that a homeowner with defects advise their mortgage company that they’ve asserted a construction defect claim as to the property and provide other details about the resolution of the claim.
This requirement could jeopardize the homeowner’s loan and expose the homeowner to inordinate amounts of red tape. There is nothing in the description of the bill advising as to the goal of this proposed change or what wrong it proposes to right. Note that no banking institutions or mortgage lenders have even requested this change to Chapter 558.
As such, and considering the other proposed changes to Chapter 558, it is assumed this is just another barrier that is being erected to dissuade homeowners, HOAs and condominiums from pursuing otherwise legitimate claims for construction defects against developers and contractors.
The proposed bill also tinkers with Section 95.11(3)(c) of the Florida Statutes, which establishes a four- year statute of limitations for construction defect claims. To protect consumers, the same provision also includes a provision that the statute of limitations does not begin to run on latent defects until the defect is discovered or should have been discovered with the exercise of due diligence.
To then in turn protect developers and contractors, there is an absolute bar to such claims 10 years after the completion of construction. This time period was shortened from 15 years to 10 a few years back. This absolute bar is known as the statute of repose. When the statute of repose runs on a claim, the homeowner, HOA and condominium is then forever precluded from bringing a claim against the developer or contractor.
However, under the amendments proposed by this bill, the concept of latency is completely removed from Section 95.11(3)(c). As such, if this law passes, courts will be required to apply a hard four-year statute of limitations for construction defect actions, with the time running from the certificate of occupancy, completion of the contract, etc. What this would mean for consumers is that the 10-year period for bringing claims based on latent defects would be effectively shortened to four years.
Thus, a developer would be able to complete a community and then maintain control over the HOA for just four additional years to run out the statute of limitations.
This change also completely disregards the nature of construction. As a condominium tower, townhome building, or home is built, trades working on the structure naturally cover up the work of the trades that came before them. The framer covers up the completed concrete foundation, the stucco and roofing contractors cover up the framing, the painter covers up the stucco, and on and on.
Thus, it is easy to see how defects can be hidden and not noticed by the end user owner for several years to come. Careful inspections along the way can forestall mistakes, but careful inspections don’t always occur.
Allowing affected owners or associations to sue over defects that have been covered up by contractors and developers keeps contractors and developers accountable and results in better construction. Taking such a cause of action away will just result in shoddy construction, and owners and associations will have no way of rectifying dangerous conditions on their property.
The proposed changes included in S.B. 736 and H.B. 583 would weaken consumer protections, increase litigation costs and result in the settlement of fewer claims outside of litigation. The changes to Chapter 558 and Section 95.11(3)(c) should be vigorously opposed by anyone who supports consumer rights for homeowners, HOAs and condominiums.
To view the original Law360 article, please click here. (Subscription required.)
Reprinted with permission from Law360.
Patrick C. HowellOffice Managing Shareholder
Tags: Board of Directors, Business Articles, Law and Legal, Members Articles
| 01.18.2022
ArticlePublication | Naples Daily News
Q: My community has set up various speed monitoring devices along the most travelled road. The board is now fining residents for speeding violations. Is this legal? What is the process for imposing a fine and can these fines result in a lien? D.V.
A: Fines can be levied for violations of the governing documents, including speeding violations. Whether a fine can be recovered by the recording and pursuit of a lien depends on several factors, including the amount of the fine and what type of community association you live in.
Condominium and cooperative fines are capped at one hundred dollars per day and one thousand in the aggregate for continuing or ongoing violations. Homeowners’ association fines are likewise capped at one hundred dollars per violation and one thousand dollars in the aggregate, with one important difference. The declaration, articles, or bylaws for a homeowners’ association can authorize higher fines (this option is not available to condominiums and cooperatives).
Fining is retroactive and can begin accruing from the first day/time a violation is alleged to have occurred. There is no legal requirement to give a warning letter or opportunity to correct a violation before a fine is levied, although many associations do so as a matter of policy, especially for minor or first-time violations.
The board typically initiates the fining process by placing the matter on the agenda for a regular or specially scheduled board meeting to consider levying a fine. A majority vote of the board at a meeting where a quorum is present would be required to levy the fine, which should be levied as a specific amount.
After levy by the board, a hearing must be offered. The hearing is conducted by an independent committee appointed by the board. The committee, sometimes called “fining committee” or “compliance committee,” must be comprised of at least three (3) members of the association who are not officers, directors, or employees of the association, or the spouse, parent, child, brother, or sister of an officer, director, or employee.
At the fining hearing, the committee must afford basic due process and allow the accused to be heard, state his or her case, and challenge evidence against him or her. Ongoing or continuing violations only require a single notice and opportunity for hearing before the committee.
The committee’s sole decision is to either “confirm” or “reject” the fine levied by the board. If the committee rejects the fine, the matter is concluded. If the committee confirms the fine, the fine is deemed to be imposed. The association must provide written notice of the fine by mail or hand delivery to the owner and, if applicable, to any tenant or invitee of the owner. The fine becomes due 5 days after written notice is given.
Unpaid fines cannot by law be secured by a lien for condominium or cooperatives. In homeowners’ associations, the statute provides that a fine of one thousand dollars or more may be subject to a lien. Some argue that the governing documents need to also include the authority to impose the lien for unpaid fines, some argue the contrary, there are no appellate court decisions on the topic. You might also be interested in knowing that there are already two Bills filed for the 2022 Florida Legislative Session that address HOA fines. One Bill (SB 1362) would state that homeowners’ association fines cannot be secured by a lien. The other (HB 6103) would remove the statutory authority of homeowners’ associations to fine altogether. It will be interesting to see what happens to these Bills during the upcoming 2022 Legislative Session.
Collection of fines typically requires a suit in small claims court, and the loser of the case would normally be responsible for the winner’s attorneys’ fees.
The provisions of your individual association’s governing documents and the application of current laws is also an important issue, which should be addressed with the association’s attorney. Likewise, if the matter is contested in court, the judge will likely require proof from the association that its speed monitoring devices are reliable and properly calibrated and maintained.
To read the original Naples Daily News article, please click here.
David Muller is board-certified in Condominium and Planned Development Law and regularly provides practical advice that ensures the fiscal success and legal compliance of both commercial and residential community associations. He has significant experience in drafting governing documents and amendments, negotiating contracts, dispute resolution, and more. For David’s complete bio, please click here.
Tags: Condo and HOA, Legal and Lobbing, Management News
By: Sara K. Wilson, Esq. Becker
Increasing numbers of people and small businesses, including community associations, have switched to managing their bank accounts exclusively over the internet. Not surprisingly, these numbers surged even higher during the pandemic. While online banking has become common place, so have incidents of cybercrime and fraud. Banks of course use a variety of security measures to protect their customers’ accounts, but there are also steps that you as the customer should take to minimize risk.
These are just a few of the steps an association can take to decrease risks when managing its bank accounts online. Because a community association has a fiduciary responsibility to its members, it is imperative that it takes the necessary steps to minimize potential cyber threats to its bank accounts. While there is no guarantee that even a well-protected system won’t be hacked, by adopting and following online banking security policies, an association greatly lessens its chances of being an easy target for a potentially devastating cybercrime.
Practicing gratitude has far reaching effects, from improving our mental health to boosting our relationships with others. Join the Becker Team as we share what we’re truly grateful for – our clients, community, coworkers, family, friends, health, happiness, and growth. From our Becker family to yours, we wish you all the best and look forward to being of service in 2022! https://www.youtube.com/watch?v=w5MiiLJaCXM
Before heading into the New Year, we look back at the year’s most popular reads. This month’s featured articles highlight the topics you found most interesting in 2021 – from fining committees to questions about remote meetings.
From all of us at Becker, we wish you a happy holiday and a joyous, healthy, and prosperous New Year!
Of all enforcement options available to an association for violations of its governing documents, the imposition of fines is one that yields many questions due to the strict procedures required to impose a fine. Learn more in, “What is a “Fining Committee” and Who Can Be on It?”
Although Florida’s Sunshine Laws don’t apply to community associations, the Condominium Act has its own set of “sunshine” requirements to be aware of. Karyan San Martano breaks down what the statute says in, “‘Sunshine Laws’ for Condominium Associations.”
While Mother Nature may be hard to harness, community associations are often tasked with doing just that to protect both residents and property. In, “Responsibility for Tree Branches and Roots,” Elizabeth Lanham-Patrie explores how the law decides who needs to tackle this chore.
As of July 1, 2021, associations are required to send delinquent owners a Notice of Late Assessments prior to turning the account over to collections. Learn best practices for sending this letter in, “A Guide to Sending the New Notice of Late Assessment.”
“Can Remote Meetings Be Held Now That the State of Emergency Has Expired?” Yeline Goin discusses what meetings can be held remotely, in whole or in part.
As leaders in Community Association Law, we not only helped write the law – we also teach it.
Did you know Becker provides over 200 educational classes per year throughout the State of Florida on a variety of topics ranging from board member certification to compliance, and everything in between? Our most popular classes are now available online!
To view our entire class roster, visit:
beckerlawyers.com/classes
As a service to the community and industry, we are pleased to offer some of our most popular classes online for you to participate in from the comfort of your own home.
Q: What happens is I refuse to pay a fine for violating the association’s governing documents? (R.N., via e-mail)
A: A duly levied fine is due after a board appointed fining committee confirms, at a properly noticed fining hearing at which the accused can state his or her case, a fine proposed by the board. Pursuant to amendments to the statute enacted in 2021, the fine is due 5 days after notice is sent to the person who owes the fine.
Assuming the procedures outlined under statute and the association’s governing documents are followed, the association may take action to collect the fine. The condominium and cooperative statutes prohibit unpaid fines from becoming a lien against a unit. The statute for homeowners’ associations, by comparison, provides that no fine of less than $1,000.00 can be secured by a lien against a parcel, presumably meaning that fines of $1,000.00 or more may become a lien against parcel, if authorized by the governing documents.
In most cases, a lawsuit in small claims court is the proper venue to collect an unpaid fine. The statute for homeowners’ associations provides that in any legal action to collect a fine, the prevailing party is entitled to recovery of their attorneys’ fees from the non-prevailing party, as determined by the court. While the statutes for condominiums and cooperatives do not contain the same language, it is generally believed that the generic provisions of those statutes allow for the recovery of attorneys’ fees for legal actions brought under the statute.
Fines are “monetary obligations” and, if left unpaid, can also result in the suspension of voting and common area use rights, and disqualification from board service. Unpaid fines can also be disclosed on the “estoppel certificate” that the association provides in connection with the sale of the unit, a process which is primarily aimed at ensuring that assessments and other charges applicable to the unit are properly calculated, accrued, and prorated between a buyer and seller, so that a “clean” and insurable title can be issued.
Q: Can an association charge late fees on past due assessments? (B.K., via e-mail)
A: Yes, if late fees are authorized by the documents governing your community.
The respective laws governing Florida condominium, cooperative, and homeowners’ associations allow for an administrative late fee of up to the greater of $25 or five percent of each late assessment installment, if authorized by the declaration or the bylaws. Assessments and installments on assessments that are not timely paid also bear interest as provided in the declaration or bylaws. If the community documents do not provide an interest rate, interest accrues at the rate of 18 percent per annum.
Payments on delinquent accounts received by the association must first be applied to any interest accrued, then to any administrative late fees, then to any costs and reasonable attorneys’ fees incurred in collection, and then to the delinquent assessment.
Q: Our homeowners’ association board says that we cannot have an ice cream truck in the community because our governing documents prohibit solicitation in the community. Is that true? (K.S., via e-mail)
A: It sounds like your board could use some good humor.
“No solicitation” clauses are generally aimed at prohibiting door-to-door types of activities. The legally correct answer will depend on several factors, including whether your roads are private or public, whether the community is gated, and the easement language in your declaration of covenants.
In the board’s defense, there is certainly reasonable cause for concern with children running up to the truck, potential accidents, and the like. If the association owns the roads, it would be a party to get sued in the event of a mishap or tragedy.
Perhaps a reasonable compromise would be to permit the truck to park in a certain common area for a stated period of time, and allow the patrons to come and get their ice cream from the truck only while safely parked and the motor turned off.
Joseph Adams is a Board Certified Specialist in Condominium and Planned Development Law, and an Office Managing Shareholder with Becker & Poliakoff. Please send your community association legal questions to jadams@beckerlawyers.com. Past editions of the Q&A may be viewed at floridacondohoalawblog.com.
17 So.3d 839 (Fla. 4th DCA 2009)
The ability for condominium associations to terminate certain contracts using a statutory procedure is at the heart of THIS CASE. In 2002, Comcast of Florida, L.P. (“Comcast”) entered into an agreement with the condominium developer (on behalf of the Association) that granted Comcast an easement to install cables and offer cable television services to residents at a bulk-discount rate. Every unit owner received and paid for the cable service as part of a monthly maintenance fee. The termination provision in the agreement stated it would be subject to the conditions and regulations required under Chapter 718, Florida Statutes. Following turnover from the developer to the unit owners, the Association voted to terminate the agreement and sent written notice to Comcast in accordance with F.S. 718.302.
Section 718.302, Fla. Stat. (2002), provided in part:
(1) Any grant or reservation made by a declaration, lease, or other document, and any contract made by an association prior to assumption of control of the association by unit owners other than the developer, that provides for operation, maintenance, or management of a condominium association or property serving the unit owners of a condominium shall be fair and reasonable, and such grant, reservation, or contract may be canceled by unit owners other than the developer:
(a) … the cancellation shall be by concurrence of the owners of not less than 75 percent of the voting interests other than the voting interests owned by the developer….
After receiving notice of the termination, Comcast refused to open the distribution lock boxes. Ultimately, Comcast sued for declaratory and injunctive relief for breach of contract and trespass. Before a hearing was held, the Association hired another provider to rewire the building and provide services to all residential units. The trial court ruled in favor of the Association. On appeal, Comcast argued that F.S. 718.302 did not apply to Comcast’s services, because the contract was not one for operation, maintenance, or management of the condominium as required under the statutory language.
On appeal the Fourth District Court of Appeal found that the agreement explicitly required Comcast to operate and maintain the wires and lock boxes it had installed. The Court also noted that under F.S. 718.115(1)(d), the cost of cable television service obtained pursuant to a bulk rate contract is deemed a common expense. In light of the fact that the agreement provided for a cable television service, and that the cost was part of a monthly maintenance fee, and that Comcast was required to service and maintain the cable television, the Court concluded that the agreement was one for “operation, maintenance, or management” subject to F.S. 718.302 (NOTE: the 2021 version of this statute is substantially the same as the 2002 version).
So why does THIS CASE matter? The Florida Condominium Act provides various rights to condominium associations which become effective upon turnover of the association from developer-controlled to unit owner-controlled, including, but not limited to, the ability to terminate certain contracts. It is vital for associations which recently have undergone turnover to discuss the various rights which accrued on the date turnover with the association’s legal counsel.
Tags: Condo and HOA Laws, Developer Issues
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