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“The Ins & Outs of Preparing a Condominium Association Budget,”

“The Ins & Outs of Preparing a Condominium Association Budget,”

  • Posted: Aug 27, 2021
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“The Ins & Outs of Preparing a Condominium Association Budget,”

Karyan San Martano

In many ways, the managing and operating of a condominium association is akin to operating a business. A primary similarity is the importance of careful and accurate financial planning and budget preparation. The board of directors of an association has fiduciary duties to its members. By paying close attention to the legal and technical requirements of condominium association budget preparation, the association can better assure its members of a smooth-running fiscal year ahead.

The legal and technical requirements of condominium association budgets can be found in Chapter 718, Florida Statutes (the “Condominium Act”) and Section 61B-22 of the Florida Administrative Code. An association’s bylaws may also contain certain financial requirements to which a board and/or budget committee should pay attention. Although the statutory and code requirements apply to all condominium associations, there is no one-size-fits-all for budget preparation. The intricacies of the budget will differ based on a number of factors, such as the size of the condominium, ongoing and upcoming projects, various maintenance obligations, etc.

The budget will cover one fiscal year, which typically tracks the calendar year. However, the association’s bylaws may indicate a different twelve-month period as its fiscal year. The important part is knowing when the fiscal year begins so that the board can ensure plenty of time for planning. For example, many associations which have a fiscal year that follows the calendar year begin planning their budget in the summer months in order to have a proposed budget by November. An additional time requirement to be aware of is that any meeting at which the proposed budget will be considered requires 14 days statutory notice.

However, your association bylaws may require a longer notice, such as a 30 days’ notice of a budget meeting. If your bylaws require a longer notice (such as 30 days) rather than the statutory 14 days’ notice, you must follow the bylaw notice requirement. The notice must include the date, time, and location of the budget meeting as well as a copy of the proposed budget. The completed notice must also be posted in a conspicuous location on the property at least 48-hours before the meeting. Although the budget meetings must be opened to all members, the board is generally authorized to adopt the budget without a vote of the owners.

As for what goes in the budget, it is divided into two main sections: an operating budget and a reserves budget. Again, similar to a business, an association’s operating budget displays the costs of the day-to-day operations of the association. This means that this section reflects reoccurring monthly and annual expenses. The operating budget may include, for example, expenses for management fees, recreational facilities rent, insurance, and taxes. There are certain items that must be contained in the budget pursuant to Section 61B-22 of the Florida Administrative Code, such as the beginning and ending dates of the period covered by the budget, all estimated common expenses or expenditures of the association including the categories set forth in Section 718.504(21)(c), Florida Statutes, and other items.

The total assessment for each unit type according to the proportion of ownership should also be included in the operating budget, either on a monthly basis or for the period for which assessments will be due (e.g., if the association collects quarterly assessments). A key point to remember about the operating budget is that the money budgeted is not restricted to the particular purpose specified on the adopted budget. If necessary, the association board may use its business judgment to spend money designated for one purpose for other purposes.

The second section of the association’s budget is the reserves budget. The Condominium Act requires the association to maintain reserve accounts for capital expenditures and deferred maintenance. A capital expenditure is the purchase or replacement of an asset whose useful life is greater than one year. Deferred maintenance is any maintenance that is performed less frequently than a year or results in maintaining the useful life of an asset. This is distinguishable from routine maintenance, which needs to be included in the operating section of the budget.

The Condominium Act also specifies that the reserves must include roof replacement, building painting, and pavement resurfacing, regardless of the amount of the maintenance or replacement cost. The association is also obligated to include any other item that has a deferred maintenance expense or replacement cost that exceeds $10,000. Unlike the operating funds which are not restricted to a particular purpose, reserve funds must be used for their intended purpose, unless a majority vote of the members is obtained to use the funds for other purposes. This means that the board cannot use reserve funds designated for one purpose to cover an unexpected expense without an approval vote.

Although as stated above, a board generally has the authority to adopt the budget without a vote of the membership, the Condominium Act does provide the members with two exceptions. First, the members can vote to waive reserves or partially fund reserves. The board can put the reserves question up to a vote if it so chooses. If no vote to waive or partially fund reserves is taken or not enough members vote to do so, the board must adopt the budget with fully funded reserves.

The second time at which a membership’s vote may be taken is if the board adopts an annual budget which requires assessments exceeding 115 percent of the assessment. At least 10 percent of the members must submit a written request for a special meeting of the owners to consider a substitute budget within 60 days after the adoption of the annual budget. A proper meeting notice must be sent out, and a membership meeting will be held. If there is not a quorum present at the meeting, or if the substitute budget is not adopted, the previously adopted annual budget remains in effect.

The ins and outs of preparing a condominium association budget can be complex, and association counsel should be consulted when needed. The board should begin early to assess the current financial picture of the community as well as its long-term financial needs and goals.

To read the original article, please click here.

Karyan San Martano is a member of Becker’s Community Association practice and regularly provides legal counseling to the officers and directors, as well as the property manager, on the operation of condominiums, cooperatives, and homeowners associations. To learn more about Karyan, please click here.

 

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Budget. Reserves. Insurance. Collections. How your community association addresses these will determine its financial health and well-being for years to come.

Budget. Reserves. Insurance. Collections. How your community association addresses these will determine its financial health and well-being for years to come.

  • Posted: Aug 27, 2021
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Budget. Reserves. Insurance. Collections. How your community association addresses these will determine its financial health and well-being for years to come.

by Becker / Lilliana M. Farinas-Sabogal

To ensure the financial well-being of the association, boards and managers should focus on at least four factors in the association: budget, reserves, insurance, and collection practices. This article will take a brief look at each of these, but this is not a finite list. It is recommended that you consult with your association attorney and accounting professionals to ensure you are doing all that you can to address these and any other financial facets of the association in the best way possible for your community.

 

Budgets
Without sufficient funds, the association cannot carry out all the duties it is required to undertake pursuant to the Florida Statutes or its governing documents. The association obtains these funds from its members. Unfortunately, many associations tend to try to keep the budgets as lean as possible to keep the assessments as low as possible. While no one likes to pay high maintenance fees if that can be helped, no one is served well by an association maintaining an artificially low budget to keep the monthly assessments low either.

The budget process should be an honest evaluation of the known and expected expenses the association will have in the coming year, and the ultimately adopted budget should reflect as much. A budget committee can be formed to help the board with the budgeting process. The Florida Condominium Act requires the proposed annual budget of estimated revenues and expenses to be detailed and to show the amounts budgeted by accounts and expense classifications.

Rather than minimizing anticipated expenses in the hopes they won’t be needed after all or creating a budget on an expectation that certain expenses may be negotiated for a lower price in the future, the association should budget on what things are actually expected to cost. Thereafter, if the lower price is negotiated, the budget can be amended downward. Most owners will agree that an amendment to lower the budget is much more palatable than a surprise special assessment because the anticipated expense did not go down as previously hoped.

Properly budgeting the association is the first step in securing the financial well-being of the association.

 

Reserves
The next step in ensuring the financial well-being of the association is to ensure the monies necessary will be available when expensive, but expected, repairs and maintenance are needed. This is the concept of reserve funding. Florida community association law requires associations to establish and collect “reserves” as part of their annual budgets. This means that an association must create a separate budget that will ensure it collects enough money every year so that when the estimated useful life of the component is expired, the association will have saved the amounts necessary to replace the component without the need for a special assessment.

For example, condominium associations are required by law to collect reserve amounts for the roof, building painting, and pavement resurfacing, regardless of the amount of the replacement costs of these and for any item for which replacement or deferred maintenance will exceed $10,000. The monies in these reserve accounts must be used for the purposes they were collected unless the owners vote to approve their use for alternative purposes.

While associations must include full funding of statutory reserve accounts in each year’s budget, the statutes allow the owners to vote to waive full funding of reserves. In such a vote, or in a vote to use reserve monies for other purposes, the statutes require warning language to be printed on the voting documents to advise owners that voting to use reserve money for another purpose or waiving reserves altogether may lead to special assessments in the future.

Reserve funding should be part of the budgeting process. Maintaining proper reserves ensures the association’s ability to handle its expected needs effortlessly by saving for this over time.

 

Insurance
In the case of the association’s financial well-being, two kinds of insurance are important. The most obvious may be the property and/or liability coverage that every association should have to cover damage to property or persons due to casualty or other unanticipated events. This kind of insurance is extremely important because, besides the fact that insurance is required by law or the association’s governing documents, an association can suffer untold damage that could create substantial financial strain on its members if they must pay for the repairs or damages out of pocket because the association did not carry the proper insurance.

In addition, however, it is also very important to remember that among the numerous provisions in the Florida Condominium Act and the Florida Homeowners Association Act, there is a requirement that the association carry fidelity bonding/insurance. For example, Florida Statute §718.111(11)(h) states:

  • The association shall maintain insurance or fidelity bonding of all persons who control or disburse funds of the association. The insurance policy or fidelity bond must cover the maximum funds that will be in the custody of the association or its management agent at any one time. As used in this paragraph, the term “persons who control or disburse funds of the association” includes, but is not limited to, those individuals authorized to sign checks on behalf of the association, and the president, secretary, and treasurer of the association. The association shall bear the cost of any such bonding.

These fidelity policies help protect the association against the financial loss in cases of defalcation of association funds.

 

Collection Practices
The association should have fair, but effective, collection practices and policies in place. While associations often feel the need to give some owners time to catch up with payments, or delay “sending the file to the attorney” to “help out” the owner, this can create a number of unanticipated problems for the association’s finances. First, an uneven application of “giving an owner time” can lead to potential defenses to legal action by those who were not “given time.” Second, many boards woefully underestimate exactly how long collections and foreclosure processes can take from start to finish.

Prior to the 2021 legislative session, the statutes already required the association give notice to owners far in advance of the association filing a claim of lien and then again waiting a long time before proceeding to filing a complaint for foreclosure of the claim of lien. The 2021 statutory changes have further expanded the timelines. Now, associations must give an owner a 30-day notice before even sending the file to the association attorney for collections. Once the attorney receives the file, it must give the owner 45 days’ notice of the association’s intent to file a claim of lien for delinquent assessments.

Thereafter, if the owner still has not paid the delinquent amounts, another 45-day notice must be sent to the owner advising of the association’s intent to foreclose the lien, prior to filing the complaint to foreclose. All told, a condominium association, for example, would have to wait at least 120 days after it decided to send the file to the attorney for collections before it would be able to even just file a complaint to foreclose a claim of lien for delinquent assessments.

Associations should consult with their legal and accounting professionals to ensure they have and consistently implement a collections policy to rein in delinquencies and send out the appropriate notices to owners as soon as possible to avoid even longer and more drawn-out collections of needed funds.

Again, this is not a finite list of considerations an association should take into account related to the association’s financial well-being. However, these issues do form the base for the association’s economy and should be top of mind for boards and managers.

 

Lilliana Farinas-Sabogal is a Board Certified Specialist in Condominium and Planned Development Law and a shareholder in Becker’s Community Association and Business Litigation practice groups. In addition to her experience assisting community associations with day-to-day management and operation of governing their communities, she advises Boards of Directors, unit owners, and community association managers on how best to resolve their contractual and transactional disputes and issues. To learn more about Lilliana, please click here.

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Issues to Consider Prior to Installing Security Cameras on the Common Areas – Part I

Issues to Consider Prior to Installing Security Cameras on the Common Areas – Part I

  • Posted: Aug 12, 2021
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Issues to Consider Prior to Installing Security Cameras on the Common Areas – Part I

BY 

 

Many associations now install security cameras on the common areas to guarantee video evidence of any intentional vandalism or negligent actions which result in damage to the common areas, such as a vehicle running into the gate of a gated community. Some association want to install  security cameras as a way of deterring criminal acts or violations of the governing documents.

Florida law does not prohibit video surveillance of the common areas. However, both State and Federal laws prohibit audio cameras in certain circumstances.

Florida law makes it illegal to intentionally intercept oral communications through the use of a device if one does not have the prior consent of all parties. This is commonly referred to as wiretapping.  Florida’s wiretapping law is a “two-party consent” law which makes it a crime to intercept or record a “wire, oral, or electronic communication” unless all parties to the communication consent.

However, there is an exception for in-person communications when the parties do not have a reasonable expectation of privacy in the conversation, such as when they are engaged in conversation in a public place where they might reasonably be overheard.  Arguably, this exception applies to the security cameras installed on the common areas. However, the best and safest approach would be to only install security cameras with video and without audio.

Further, while video security cameras are not prohibited, such video security cameras should be pointed in the direction of the common areas and should avoid individual units or lots. Section 810.14, Florida Statutes, prohibits anyone from looking into a person’s house, structure, or conveyance or from looking at a person’s intimate areas that are protected by clothing from the public view. This is referred to a video voyeurism and is a criminal offense. Florida’s Video Voyeurism law is not violated if the video camera is

  1. recording the non-private common areas,
  2. not recording inside any dwelling/unit or even a motor vehicle, and
  3. not recording in portions of the common areas where a person has a reasonable expectation of privacy or might be expected to be in a state of undress (bathrooms, locker rooms, etc.).

 

Elizabeth “Beth” A. Lanham-Patrie

Elizabeth
Elizabeth “Beth” A. Lanham-Patrie’shas been practicing law since 1993, and she has focused on representing community associations since June of 2001. Beth provides a variety of legal services to condominium, homeowner, and cooperative associations and is a transactional attorney with extensive experience drafting and amending governing document, and preparing and reviewing contracts. Beth is also involved in resolving disputes between associations and owners. Ms. Lanham-Patrie is also one of only 190 attorneys statewide who is a Board Certified Specialist in Condominium and Planned Development Law.
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Legislative Changes on the Horizon by Becker

Legislative Changes on the Horizon by Becker

  • Posted: Jul 14, 2021
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The tragic Champlain Towers South collapse has resulted in an outpouring of support worldwide, while also raising safety concerns among those who reside in community associations in Florida.

Becker’s Community Association Law team hears from clients daily seeking advice on how to assess the structural integrity of their building. The firm has always advised that individual building evaluations can only be addressed with the involvement of a qualified engineer. Separately, clients request guidance on legal steps to help their association more easily navigate these complicated issues. It is apparent that additional resources are needed to help safeguard the significant percentage of Floridians living in communities.

For this reason, the Florida Bar has appointed the Condominium Law and Policy Life Safety Task Force. This group will serve as a resource to the Governor and Legislature as they review all aspects of Florida condominium law, development, association operations, and maintenance to determine and recommend if legislative and or regulatory changes should be enacted. The task force consists of eight members, including Becker Shareholder Joseph E. Adams. Joe currently serves as the Co-Chair of the Florida Bar’s Condominium and Planned Development Committee, and is a former Chair of the Florida Condominium Council appointed by the Florida Legislature.

The Condominium Law and Policy Life Safety Task Force will discuss possible initiatives such as more frequent and statewide mandatory structural certifications, reserve funding mandates, removing hurdles to a board’s ability to assess and borrow for necessary repairs, as well as exploring the feasibility of a government-backed low interest loan program.

Becker’s Community Association Law Team will continue to monitor these developments as they evolve and will share with you as soon as information becomes available.

 

Donna DiMaggio Berger, Joseph E. Adams, Kenneth S. Direktor | 07.09.2021
Perspective Type – Client Advisory

 

 

Is It Time To Amend Your Condominium Declaration? by Becker

Is It Time To Amend Your Condominium Declaration? by Becker

  • Posted: Jul 07, 2021
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Is It Time To Amend Your Condominium Declaration?

BY   / Becker

 

Does your Declaration of Condominium still refer to Chapter 711 as the Florida Condominium Act? Well, maybe it is not that old, but perhaps it has been a decade since it has been revised. If that is the case, then it may be time to amend the governing documents to ensure that they include the most recent amendments to the Condominium Act and address changes in your community’s needs which have developed over time.

Section 718.110(1)(a), Florida Statute, provides that if a declaration fails to provide a method of amending the document, it may be amended, as to most matters, if the amendment is approved by owners of not less than two-thirds (2/3rd) of the units. There are two major exceptions, however. First, changing any appurtenances to the unit or changing an owner’s percentage share in the common expenses requires the approval of all owners and all lienholders, unless the original declaration provides otherwise. Second, an association cannot amend a declaration to create timeshares without the approval of the all owners and all lienholders, unless the original declaration provides otherwise.

Now that you know the basics of an amendment, lets discuss “why” in terms of a growing issue in Florida (i.e., short term rentals). If the goal is to amend the declaration to address the onslaught of short term rentals popping up with more and more frequency in condominiums, Section 718.110(13) must be considered. This statute provides that any amendment prohibiting owners from renting their units, altering the duration of the rental term, or limiting the number of times owners are entitled to rent will only apply to owners who agree to the amendment and to owners who purchase their unit after the effective date of the amendment. The amendment however limited it seems now, may be prudent today nonetheless. Why? Because it may take a bit for the new restrictions to apply to all owners and those short term rental investors while gaining momentum are still in the minority.

Amendments should not be taken lightly. If an amendment is done incorrectly, it will be deemed void or invalid. Once you have ideas as to what your Association needs in light of what the governing documents provide, it is important to meet with the Association’s attorney to discuss these. The attorney can then advise of those changes which would be permitted and craft language aimed at meeting the Association’s needs harmonizing those with the Condominium Act.

 

Robyn M. Severs

Shareholder / Orlando
904.423.5372
RSEVERS@beckerlawyers.com

 

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Can They Do That? Video Series by Becker

Can They Do That? Video Series by Becker

  • Posted: Jul 07, 2021
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Can They Do That? Video Series

Becker’s video series, tackles some of the unique problems that homeowners and renters face today. We answer questions, no matter how far-fetched they may seem. From service animals to nudists in your community, we get to the bottom of it and let you know – “Can They Do That?”

by Becker

 

Episode 24: New Budget That Includes a Contingency Fund

Our board wants to adopt a budget that includes a contingency fund. – “Can they do that?”
Aired 11/23/2020

Episode 23: Can Board Change the Way We Fund Reserves

Our board has proposed a budget in which they’re changing the way we’re funding reserves. – “Can They Do That?”
Aired 11/17/2020

Episode 22: Condominium Funding Reserves

Our condominium has never funded reserves, and yet, the board has proposed and adopted a budget that provides for full funding of reserves. – “Can They Do That?”
Aired 11/05/2020

Episode 21: Forbidding Political Signage

I put up a political sign for my favorite candidate. My HOA and the Board sent me a letter telling me to take it down. I have a right to free speech don’t I? – “Can they do that?”
Aired 10/09/2020

Episode 20: Association Hurricane Shutdowns

A hurricane is a few days away from landfall near my condominium. The association sent a notice that elevators and the building air conditioning will be shutdown for 36 hours before landfall. “Can they do that?”
Aired 9/22/2020

Episode 19: Unofficial Community Websites Causing Harm

I came across an unofficial community website that was using our official logo and name. The website included some damaging information about the association. “Can they do that?”
Aired 8/26/2020

Episode 18: City Notice That Property Is in Violation of Local Code

I received a notice that my property is in violation of local code and ordinances. The city wants to start imposing fines on my property. “Can they do that?”
Aired 7/28/2020

Episode 17: Insurance Company Litigating Local Claims Out of State

The insurance company wants to take my Florida claim and litigate in New York. “Can they do that?”
Aired 6/29/2020

Episode 16: Employer Mandated Quarantine After Traveling

I’m going to go on a trip right now. Prices are really low to travel, and I want to visit my family. My employer’s telling me that if I go on the trip I’m not able to come back to work. My employer is going to mandate that I quarantine myself for 14 days when I come back. “Can They Do That?”
Aired 5/27/2020
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Becker is proud to announce that the firm has signed The Diversity in Government Relations Coalition Industry Pledge.

Becker is proud to announce that the firm has signed The Diversity in Government Relations Coalition Industry Pledge.

  • Posted: Jul 03, 2021
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Becker is proud to announce that the firm has signed The Diversity in Government Relations Coalition Industry Pledge.

 

The DGR Coalition aspires to foster and strengthen diversity, equity, and inclusion among entities that influence local, state, and federal policy through data collection, strategic communications, and stakeholder engagement. This pledge is part of its greater non-partisan efforts to “put forth evidence-based best practices that govern our actions…throughout the field.”

The Diversity in Government Relations Coalition Industry Pledge, a first-of-its-kind in the government relations industry, reads:

“We commit to increasing understanding of diversity, equity, and inclusion (DEI) and its impact on the government relations field; intentionally addressing the gaps in diverse representation of our staff and our leadership teams that influence local, state, federal and international policy; and exploring the unintended consequences that result from policy and advocacy that lack diverse representation, voice, and perspective.”

“Becker is delighted to align ourselves with the Coalition’s goal of creating an equitable, inclusive future,” said Omar Franco, leader of the firm’s Federal Lobbying practice and the firm’s designee to sign the pledge. “The firm and, in particular, its Government Law & Lobbying team have long understood the importance of having all voices represented in our ranks; signing this pledge is yet another way we can be a proactive part of the conversation.”

Becker is also a member of the Law Firm Antiracism Alliance (LFAA), a partnership of over 285 law firms committed to racial equality. The LFAA’s mission is to collaborate with racial justice legal service organizations and law firms’ pro bono teams to confront the root cause of racism.

For further samples of Becker’s commitment to diversity and inclusion, please view the perspectives below:

Becker’s Government Law & Lobbying practice counts its racial, ethnic, gender and political diversity as an integral part of its formula for success. The team believes its diversity provides clients with the distinct advantage of collaborating with an array of state and federal legislators and local government officials from both sides of the aisle, as well as the various caucuses. To learn more about the Government Law & Lobbying practice, please click here.

For more information about the DGR Coalition and how to participate in its Industry Pledge, please click here.

 

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Becker’s Donna DiMaggio Berger and CastleGroup’s James Donnelly offer specific instructions on how your community can safely weather the impending storms.

Becker’s Donna DiMaggio Berger and CastleGroup’s James Donnelly offer specific instructions on how your community can safely weather the impending storms.

  • Posted: Jun 05, 2021
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NEXT WEEK! It’s #hurricane season and all Floridians – new transplant, veteran resident, or snowbird alike – need to brace for the inevitable impact.

Let #Becker’s Donna DiMaggio Berger and #CastleGroup’s James Donnelly offer specific instructions on how your community can safely weather the impending storms.

Register for the June 9th Association Leadership webinar today!

http://ow.ly/kxm450F2jtU

 

Association Leadership Webinar – Season 2, E17

Written on . Posted in Upcoming Events.

Castle Group invites you to join us for a very important episode of Association Leadership: Hurricane Season. Experts are predicting the potential for more than 20 named storms this hurricane season with a good chance that three to five of them will directly impact the U.S. Please join us for this important episode which will help prepare your community for a potential hurricane. Our Founder and CEO, James Donnelly will be hosting this live webinar with legal expert Donna D. Berger, Esq.

Wednesday, June 9, 2021

12:00PM – 1:00 PM

Register to join by clicking the registration button below.

Register now

CALL Alert: Limiting Liability for COVID-19; Criminalizing Inspections & Elections; Permitting Single Petition Property Tax Appeals

CALL Alert: Limiting Liability for COVID-19; Criminalizing Inspections & Elections; Permitting Single Petition Property Tax Appeals

  • Posted: Mar 30, 2021
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This week, we’re going to discuss a few bills that will impact all types of Florida community associations.

CS/HB 7 /SB 72 (Brandes) are bills which would protect “business entities” against COVID-19 related claims for damages, injury or death. These bills do include condominiums, cooperatives, and HOAs within the definition of a business entity. Given that most association policies have coverage exclusions for communicable diseases, these bills could help insulate associations from frivolous COVID-19 claims in the coming months or years.

In order to be eligible for this protection from civil liability, a defendant would have to show that it made a good faith effort to substantially comply with authoritative or government-issued health standards or guidance at the time the cause of action accrued. Most community association boards have wisely followed the advice of medical professionals such as the CDC, DOH, and local government health officials when crafting and enforcing COVID-19 safety protocols.

SB 1998 (Pizzo) would create a new Section 718.1285, F.S. outlining fraudulent voting activities which would subject violators to a potential felony charge in the third degree.

  • This bill would require boards to provide an itemized list to the individual requesting a document inspection, and require a sworn affidavit from the person handling the document inspection request regarding the veracity of the itemized list. Any director or manager who knowingly, willfully, and repeatedly violates these requirements would commit a misdemeanor of the second degree.
  • This bill would also require associations operating twenty-five (25) or more units to maintain a website on which their official records must be posted. Currently, associations operating 150 or more units must maintain an association website for this purpose so, if passed, this bill will require thousands more Florida communities to set up websites.
  • SB 1998 would permit a condominium association to file a single joint petition for a tax appeal and makes the use of a debit card a theft even if done so by mistake.

Conducting elections and overseeing document inspection requests are two areas where deadlines can easily be missed and mistakes made. Even without the penalties imposed by a bill like SB 1998, it is important that boards and managers have comprehensive election and inspection protocols and policies in place. Reaching out for guidance from your legal team is also advisable.

Lastly, HB 649 (Fernandez & Barquin)/SB 996 (Garcia) would also allow condominium and cooperative associations to file a single joint petition on behalf of their unit owners with the value adjustment board to appeal property taxes. Unit owners could opt out but they would have to do so within fourteen (14) days from receipt of the association’s notice or they will be included in the association’s petition.

RESOURCES

Please continue to utilize our Bill Tracker which is updated weekly thanks to Becker attorney Maritrini Soto Garcia. This tool allows you to review all of the bills CALL is tracking and see where they’re headed.

Please also use our Legislator Connect tool to contact your representatives as well as the Committee Members hearing these bills. Please do not underestimate your ability to make a difference in terms of which bills pass and which are defeated.

ICYMI: Make Your Documents Work For You

Curious about amending your documents to get ahead of the annual legislative changes? Check out Make Your Documents Work For You. My partners – Ken Direktor, Joe Adams – and I discussed what changes you should consider, how to increase your likelihood of getting your amendments passed, and what to expect in terms of costs and timelines. Click here to watch the replay!

DONNA DIMAGGIO BERGER

Contact: dberger@beckerlawyers.com

Donna DiMaggio Berger is a member of the College of Community Association Lawyers (CCAL), a prestigious national organization that acknowledges community association attorneys who have distinguished themselves through contributions to the evolution or practice of community association law and who have committed themselves to high standards of professional and ethical conduct in the practice of community association law. Ms. Berger is also one of only 129 attorneys statewide who is a Board Certified Specialist in Condominium and Planned Development Law.

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Slow Your Roll: How to Address Speeding Issues in Your Association

Slow Your Roll: How to Address Speeding Issues in Your Association

  • Posted: Mar 22, 2021
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Speeding is a big problem for many community associations — a problem that is not always easily addressed or corrected. How can your board slow the speed of traffic in your community?

by Jennifer Horan

If your association does not currently have traffic rules, you may be able to rely on a nuisance provision in your Declaration. Alternatively, if your board has the authority to adopt rules and regulations regarding the common areas, the board can adopt traffic rules at a duly noticed board meeting. To enforce the rules, the association has a variety of enforcement tools available, including sending warning letters, notices of violation, fining, suspension of use rights, or further legal action.

Fining is the most common “enforcement tool” that is utilized to curb speeding, for associations who monitor speeding. Fining is most effective when pursued against owners/residents in the community. It is more difficult for an association to pursue fines against visitors, guests, invitees, or contractors who speed. So, for the most part, most associations that pursue fines for speeding opt to only pursue fines against owners/residents who speed. Anytime an association intends to fine an owner or resident, the process and procedures for fining must comply with the statute. Therefore, it would require the board to establish a fining committee (if your community does not already have a committee in place). Notice must be provided to the owner or resident of the violation and the owner or resident must be provided with an opportunity to be heard in front of a fining committee.

For those communities who do not want to impose fines, there are a variety of other enforcement tools available, including sending warning letters, notices of violation, suspension of use rights, or further legal action (such as seeking injunctive relief). When it comes to either fining or the suspension of use rights the association must follow the statutory procedure described above. An additional method of enforcement would be through an agreement with the county which would authorize a local law enforcement agency to enforce state traffic laws on the association’s private roads. Section 316.006, Florida Statutes, authorizes local law enforcement agencies to enforce state traffic laws on the private roads of associations pursuant to an agreement between the association and law enforcement. It requires a majority vote of the board of directors of a homeowners’ association to elect to have state traffic laws enforced by local law enforcement agencies on private roads that are controlled by the association.

There are other practical concerns with regard to enforcement against speeders, most notably, evidence of speeding. How can your board of directors “prove” that a vehicle is speeding? Depending on the speed of the vehicle, it could be established simply by the testimony of the person who saw the car speeding. Some communities have purchased equipment that monitors speed and that can also take photos or videos of the speeding vehicle. If your community is considering purchasing a speed gun, it should be noted that there is an administrative rule that deals with “speed measuring devices”. This rule provides that evidence of the speed of a vehicle measured by a radar speed measuring device is inadmissible in “any proceeding with respect to an alleged violation of provisions of law regulating lawful speed of vehicles” unless such evidence of speed is obtained by a law enforcement officer who meets certain requirements, including the satisfactory completion of certain training courses. The rule also requires a visual determination that the vehicle was speeding and a written citation based on evidence obtained from an approved speed measure device. Also, the particular speed measuring device must meet specifications and must be tested in accordance with other procedural rules related to the testing of speed measuring devices.
Slowing traffic helps promote a more relaxed residential environment and as you can see there are various options available. An association need not choose one however to the exclusion of all others. The key is be consistent and properly apply the various options chosen.

 

Jennifer Horan

Jennifer Horan
Jennifer Horan focuses her practice on all aspects of condominium and homeowners’ association law. She has over 12 years of community association law and general litigation experience. In addition to practicing law with a number of Florida-based firms, Jennifer also spent time as a Senior Attorney with the State of Florida Department of Health. Here, day-to-day legal services were provided to seven county health departments and children’s medical services. State contracts were drafted, reviewed and approved while she oversaw and directed EEOC investigations. Prior to her legal career, she acted as the Head of Special Education at Richardson Independent Schools in Dallas, Texas.

 

 

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“Tree Root Damage, Who is Responsible?,” by Becker

“Tree Root Damage, Who is Responsible?,” by Becker

  • Posted: Mar 16, 2021
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“Tree Root Damage, Who is Responsible?,”

by Becker / Joseph E. Adams

 

Q: I live in a gated homeowners’ association.  Roots from a tree planted on the common area has damaged my driveway.  Who is responsible for the repair? (J.K., via e-mail)

A:Probably you.

There are two theories which have been brought before Florida courts in an attempt to hold adjacent property owners liable for damage caused by tree roots or limbs encroaching past the property line, nuisance and negligence.

In a 1984 decision, a Florida appeals court noted that while there was substantial authority to the contrary in other jurisdictions, “the undoubted right of the land owner himself to cut off intruding roots or branches at the property line,” precludes a negligence claim.

As for nuisance, the majority rule in this country, which is followed in Florida, is that the owner of land is not liable to persons outside the land for a nuisance resulting from trees and natural vegetation growing on the land because the neighboring owner has the right to trim back roots and branches to the property line.

However, your association does have a duty to maintain common areas, and it could be argued that if this duty is not met, you could make a claim. However, this argument has not been tested in the courts and is contrary to fairly well-established precedent outside of the association setting.

 

Q: My homeowners’ association requires that children must be at least 16 years old to use any of the community’s amenities without an adult. I questioned this restriction and our community manager stated that the age requirement is not in the bylaws or covenants, but in the “new homeowner packet.” I never received a new homeowner packet. Can the association make this kind of a rule? My son is 15 and uses the pool and the gym regularly to exercise and I don’t think I need to be there with him when he does this. (P.S., via e-mail)

A: Restrictions aimed at families with children present difficult issues for associations. The federal fair housing law prohibits discrimination regarding the use of privileges, services or facilities associated with a dwelling because “familial status.” On the other hand, the courts have recognized that rules based on legitimate safety concerns are valid. No one would argue that an association should let a two-year-old toddler wander around a swimming pool area, unattended by an adult.

In a 2003 decision coming from a federal trial court in California, the court held that blanket rules requiring adult supervision for children under 18 years old using recreational facilities in a community were discriminatory. The court also found that the prohibitions based on children of less than a designated age was not the least restrictive means by which the community could protect the health and safety of children and residents, safety would be better served with a proficiency requirement.

There are other cases that have upheld restrictions and the law remains unsettled with no bright line as to what a reasonable age cut-off is or whether there are other means of ensuring safety in the community. You should ask your association to review your concerns with the association’s legal counsel and review whether the association should reconsider its policy.

I would also point out that as of July 1, 2018, Section 720.306(1)(e) of the Florida Homeowners’ Association Act requires that amendments made to HOA rules be “recorded in the public records of the county in which the community is located.” If the rule was adopted after that date, it should be recorded.

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