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This year I am hearing the following complaint more than ever before: I live out of the state, or out of the country and I never received a ballot to vote in the election.
A little over a year ago I was involved in a case where many owners who lived in Finland did not get their ballots timely. Instead of having their vote not count, someone who lived in the condominium e-mailed them the ballot. These owners then took that ballot, placed it in a ballot envelope, placed that ballot envelope in another envelope and signed the exterior, and mailed it back to the association usually by overnight mail. Some owners didn’t bother to use the interior ballot envelope.
The association didn’t want to count these votes. The association also didn’t want to count the votes of owners who had their ballot envelopes dropped off by a neighbor, claiming that this was voting by proxy.
Read the attached opinion to find out how the arbitrator ruled. It makes for interesting reading. The bottom line…….if you’re out of town…..have the ballot e-mailed to you.
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Eric Glazer graduated from the University of Miami School of Law in 1992 after receiving a B.A. from NYU. He has practiced community association law for more than 2 |
decades and is the owner of Glazer and Sachs, P.A. a seven attorney law firm with offices in Fort Lauderdale and Orlando and satellite offices in Naples, Fort Myers and Tampa.
Since 2009, Eric has been the host of Condo Craze and HOAs, a weekly one hour radio show that airs at noon each Sunday on 850 WFTL.
He is the first attorney in the State of Florida that designed a course that certifies condominium residents as eligible to serve on a condominium Board of Directors and has now certified more than 10,000 Floridians all across the state. He is certified as a Circuit Court Mediator by The Florida Supreme Court and has mediated dozens of disputes between associations and unit owners. Eric also devotes significant time to advancing legislation in the best interest of Florida community association members.
Tags: Condo and HOA Laws, Elections, Management News
by Eric Glazer / Glazer & Sachs / Condo Craze & HOA’s
In about 25 years a crisis is coming to the condo and co-op world that will be shocking to say the least. Here is the problem. Many of you think that by purchasing your condo or co-op, you can live there forever, as long as the mortgage, taxes and assessments are paid. You may be wrong. Very wrong.
Florida condo and co-op law basically say: Leaseholds.—
(1) A condominium or co-op may be created on lands held under lease or may include recreational facilities or other common elements or commonly used facilities on a leasehold if, on the date the first unit is conveyed by the developer to a bona fide purchaser, the lease has an unexpired term of at least 50 years.
That’s right your condo could be built on land that you don’t own. Land that you are leasing and someone else owns and who is simply leasing the underlying land to the condo association for 99 years. After the 99 years are over, the lease may require that all property built on the land (meaning all of the condo units) revert back to and becomes owned by the owner of the land. In other words, after 99 years, you lose your home.
Many of these 99 year leases began in the 1960s. So, in about 40 years, lots of buildings will be faced with this fiasco if they don’t do something about it before then. As the date gets closer to the expiration of the 99 year lease term, the value of the unit keeps going down. How can you sell a unit to someone if in 5 years it reverts back to the underlying land owner? That unit is valueless.
It’s amazing how many people have no idea that this is going to happen. How many people thought that once they paid off their mortgage, they were safe and secure. They were wrong. One day, the underlying land owner will be able to make you purchase the unit all over again if you want to stay. Or, simply kick everyone out and build something new or sell to a new developer.
The law should never have allowed condos or co-ops to be built on leased land. But, this is Florida – the land where developers call the shots.
If you live in a community with such a land lease, you want to see if you can buy it out and obtain a deed to the land. That will avoid the potential disaster that awaits. The Florida Legislature better start thinking about this coming crisis and not wait for it to creep up on everyone.
Tags: Condo and HOA, Condo and HOA Laws, Management News
Today we continue with a very interesting case that was just decided by Florida’s Second District Court of Appeal. RIVIERA-FORT MYERS MASTER ASSOCIATION, INC., v. GFH INVESTMENTS, LLC. 2020 WL 7767856. To simplify, in a mixed-use community, meaning a community made up of commercial property and residential housing, the Master Association adopted seven amendments to the community’s master declaration. The court referred to the sub associations as the “Liner Buildings.” In general terms, the amendments addressed the Master Association’s authority to approve proposed uses of the property located in the sub communities, (Liner Buildings) increased assessments on them, and imposed additional restrictions on the Liner’s tenants.
Again, I write about the case because it is a great learning case about the relationship between a Master and a Sub and about community living in general.
CAN THE MASTER ASSOCIATION MAKE RULES AND REGULATIONS GOVERNING PETS THAT ARE DIFFERENT THAN THE SUBS?
We agree with the Master association’s assertion that these restrictions on number, size, type,and breed of pets are reasonable, as are the requirements that owners leash and pick up after their animals. The Liner Buildings are in relatively close proximity to the condominium buildings, and it is inevitable that dogs kept in the Liner Buildings will need to go outside and use the common areas of the property, and they can therefore be regulated to a reasonable degree to protect the community members’ mutual enjoyment of the common areas. Cf. Majestic View Condo. Ass’n v. Bolotin, 429 So. 2d 438, 440 (Fla. 4th DCA 1983) (implying in dicta that such pet restrictions are reasonable in the condominium setting). As such, the circuit court erred in enjoining the enforcement of this amendment.
WHAT ABOUT PARKING RULES?
In this case, the Master Association made a rule that said the owners in the sub associations cannot park in common areas and can only park in designated parking spaces assigned to that community. In upholding the decision of the Master Association, the court relied on Juno By The Sea North Condominium Ass’n (The Towers), Inc. v. Manfredonia, 397 So. 2d 297 (Fla. 4th DCA 1980), a seventy-unit condominium building had three parking lots: a covered lot with twenty spaces that had been designated in the master declaration as limited common elements and sold to individual unit owners who had exclusive use of those spaces; a second lot that had been designated as a common element with fifty spaces that were unassigned; and a third lot across the street with additional auxiliary parking. Id. at 301. Due to congestion, the condominium association assigned the fifty spaces in the common area lot to the fifty units that did not own exclusive spaces in the covered lot. Id. The owners of the covered spaces sued, contending that the association could not prohibit their use of the common area lot. The Fourth District disagreed. To the contrary, the court held that the limitation on use of the common area lot passed the test of reasonableness because the association’s plan fairly ensured that each unit had access to parking. Id. at 302–05. Thus, even though the fifty-space lot remained a common area, its use reasonably could be restricted to certain unit owners.
CAN THE MASTER ASSOCIATION AMEND THE GOVERNING DOCS TO IN EFFECT CONTROL THE LEASING PROVISIONS IN THE SUB COMMUNITY?
Here is what the court said:
The Liner Buildings, although separate structures, are part of a community for which courts have granted “a greater degree of control over and limitation upon the rights of the individual owner than might be tolerated given more traditional forms of property ownership.” Seagate Condo. Ass’n v. Duffy, 330 So. 2d 484, 486 (Fla. 4th DCA 1976), approved sub nom. Woodside Vill. Condo. Ass’n v. Jahren, 806 So. 2d 452 (Fla. 2002). Indeed, the court in Seagate held that even an absolute prohibition against the leasing of units in a condominium complex can be a reasonable use limitation: Given the unique problems of condominium living in general and the special problems endemic to a tourist oriented community in South Florida in particular, appellant’s avowed objective—to inhibit transiency and to impart a certain degree of continuity of residence and a residential character to their community—is, we believe, a reasonable one, achieved in a not unreasonable manner by means of the restrictive provision in question. The attainment of this community goal outweighs the social value of retaining for the individual unit owner the absolutely unqualified right to dispose of his property in any way and for such duration or purpose as he alone so desires. Id. at 486–87. We reach the same conclusion here and conclude that the amendment adopting section 10.12 is reasonable and enforceable.
Tags: Condo and HOA Laws, Management News
Published January 18, 2021
A very interesting case was just decided by Florida’s Second District Court of Appeal. RIVIERA-FORT MYERS MASTER ASSOCIATION, INC., v. GFH INVESTMENTS, LLC. 2020 WL 7767856. To simplify, in a mixed-use community, meaning a community made up of commercial property and residential housing, the Master Association adopted seven amendments to the community’s master declaration. The court referred to the sub associations as the “Liner Buildings.” In general terms, the amendments addressed the Master Association’s authority to approve proposed uses of the property located in the sub communities, (Liner Buildings) increased assessments on them, and imposed additional restrictions on the Liner’s tenants.
I write about the case because it is a great learning case about the relationship between a Master and a Sub and about community living in general. The court said so much that we will break up this blog over a two week period. Let’s start:
Are all amendments voted on by owners to the governing documents legal?
“In determining the enforceability of an amendment to restrictive covenants, the test is one of reasonableness.”Holiday Pines Prop. Owners Ass’n v. Wetherington, 596 So. 2d 84, 87 (Fla. 4th DCA 1992). This court defined “reasonable” as “not arbitrary, capricious, or in bad faith.” Hollywood Towers Condo. Ass’n v. Hampton, 40 So. 3d 784, 787 (Fla. 4th DCA 2010). In other words, as we stated in Holiday Pines, the modification of restrictions cannot “destroy the general plan of development.” Holiday Pines, 596 So. 2d at 87 (citing Nelle v. Loch Haven Homeowners Ass’n, 413 So. 2d 28 (Fla. 1982)). Amendments which cause “the relationship of lot owners to each other and the right of individual control over one’s own property” to be altered are unenforceable. Id. at 88. Such an alteration is considered a “radical change of plans.” Id. Klinow v. Island Court at Boca W. Prop. Owners’ Ass’n, 64 So.3d 177, 180 (Fla. 4th DCA 2011) (footnote omitted). Klinow further defined “radical change” as “a change which would create an inconsistent scheme, or a deviation in benefit from that of the grantee to that of the grantor.” Id. (citing FlamingoRanch Estates, Inc. v. Sunshine Ranches Homeowners, Inc.,303 So. 2d 665, 666 (Fla. 4th DCA 1974)).
Can the HOA Be More Restrictive than the local zoning authority?
It is well established that restrictive covenants can be more restrictive than limitations imposed by municipalities. See, e.g., Luani Plaza, Inc. v. Burton, 149 So. 3d 712, 714–16 (Fla. 3d DCA 2014) (allowing a business owners’ association to prohibit residential use of a commercial property despite municipal permission for residential use); Stuart Sportfishing, Inc. v. Kehoe, 541 So. 2d 169, 170 (Fla. 4th DCA 1989) (holding that a less-restrictive zoning ordinance did not control over a more-stringent restrictive covenant); Tolar v. Meyer, 96 So. 2d 554, 556 (Fla. 3d DCA 1957) (holding that a zoning decision allowing property to be used as a church did not control over a restrictive covenant prohibiting such a use).
Do Owners Give Up Some Freedom When They Move Into a Condo or HOA?
owners of property in condominium complexes necessarily accept a greater degree of restriction on their property rights); Hidden Harbour Estates, Inc. v. Basso, 393 So. 2d 637, 640 (Fla. 4th DCA 1981)
Next week I’ll write about some other facets of the law discussed in the opinion.
Tags: Condo and HOA Laws, Law and Legal, Management News
It’s becoming impossible to keep up with technology. Just when you think you bought the latest, greatest computer or cell phone the world may ever see, a month later there’s new technology that makes you device already seem outdated. It’s a never ending cycle. Well, one new technological advance is the RING doorbell, which is a doorbell that let’s you see who is at your front door, by simply glancing at your cell phone. I have one for my home and another for my office. It even let’s you speak to and hear the person who is at your door, even when you are not home. In fact, you can be anywhere in the world. It really is fantastic technology that everyone is taking advantage of. BUT IF YOU LIVE IN A CONDOMINIUM…..YOU CAN’T.
Let’s again review Florida Statute 718.113(2)(a):
Except as otherwise provided in this section, there shall be no material alteration or substantial additions to the common elements or to real property which is association property, except in a manner provided in the declaration as originally recorded or as amended under the procedures provided therein. If the declaration as originally recorded or as amended under the procedures provided therein does not specify the procedure for approval of material alterations or substantial additions, 75 percent of the total voting interests of the association must approve the alterations or additions before the material alterations or substantial additions are commenced. This paragraph is intended to clarify existing law and applies to associations existing on July 1, 2018.
So the question is…..is the installation of a RING doorbell on your condominium front door, a material alteration to the common elements that requires a vote of the owners? In Persi v. Playa Del Mar Association, Case No. 19-02-7292, March 16, 2020, Arbitrator Keith Hope held that it was and upheld the association’s right to remove it. The arbitrator first again indicated the definition of a material alteration:
“[A]s applied to buildings, the term material alteration or addition ‘means to palpably or perceptively vary or change the form, shape, elements or specifications of a building from its original design or plan, or existing conditions, in such a manner as to appreciably affect or influence its function, use or appearance
Applying this test, the Arbitrator held that Petitioners’ installation of the ring video doorbell was a material change to the appearance of the common property door, and required installation of electrical wiring within the common property walls. Moreover, it is undisputed that Petitioners’ ring video doorbell contains a security camera that captures both audio and video of persons and activities within its field of view. Installation of a security camera on or in a condominium’s common property is deemed a material alteration. Dellagrotta v. West Coast Vista Association, Inc., Arb. Case No. 2013-02-7351, Summary Final Order (October 4, 2013).
While it’s hard to say the arbitrator’s reasoning was not correct, arbitration cases have long held that when the Board wants to use the benefits of new technology, it’s suddenly not a material alteration but a wise business judgment decision.
For example:
In the arbitration case of A. N. Inc. v. Seaplace Association, Inc., Arb. Case No. 98-4251, Summary Final Order (Oct. 29, 1998), replacement of all of the windows in the condominium with an upgraded version, with a tilt-out cleaning feature, tinting and heavier glass, was held not to require a unit owner vote. The arbitrator noted that the choice of the type of window used is a decision within the board’s business judgment and that “a board in the exercise of its well-reasoned and documented judgment could and should take advantage of changes in technology, building materials, and improved designs …” See also, Kreitman v. The Decoplage Condominium Association, Inc., Arb. Case No. 98-4711, Final Order (July 30, 1999) (board’s decision to replace worn hallway carpets with longer lasting solution-dyed, woven carpet was not subject to unit owner approval).
In light of these cases, why are upgraded windows and carpets not considered a material alteration, but upgraded doorbells that take advantage of the latest technology are? Just like the Board, I don’t see the harm in owners having the right to take advantage of “changes in technology” and having the ability to install a doorbell that provides better safety, security and ease of use.
Tags: Common Area Issues, Condo and HOA, Condo and HOA Laws, Management News
By Eric Glazer, Esq.
So all this talk about the Presidency lately has got me thinking about an issue that comes up every week in my practice for the past 30 years or so. I get a call from someone on a Board of Directors. And they tell me that they have a President on the Board who is a real dictator. He or she doesn’t listen to any other board member, makes decisions on their own, signs contracts, sets policy, hires and fires people — all without input from the other board members. Again – I get calls like this once a week at least.
So does the president of a board have any power above and beyond other board members, or are they simply on par with the other board members?
Well……….let’s look at some arbitration decisions……(A single director has no power to act in a representative capacity for the corporation on matters for which a vote of the directors is required.); June Katchen and Lawrence Katchen v. Braemer Isle Condominium Association, Inc., Arb. Case No. 98-5485, Final Order (August 5, 1999) (Association president, acting alone, did not have the authority to act for the board and bind the association).
In point of fact, an association president has no greater authority than any other member of the board. See Aldrich v. Tahitian Gardens Condominium Association, Inc., Arb. Case No. 96-0472, Summary Final Order (May 22, 1997). The president has no power to take action on behalf of the association in the absence of a specific order or resolution of a majority of the board.
Your bylaws may allow the President to chair the meetings and sign contracts that have already been approved by the board, but that’s about it.
So while it’s clear that a president has no greater authority than any other director, suppose that president doesn’t stop acting like a dictator? What should the board do? Well remember, the officers of the Board serve at the pleasure of the Board of Directors. The Board always has the right to call a new Board meeting / organizational meeting — and remove that person as President. No big deal. But even if they remove that person as president – that person still remains as a member of the board. The unit owners can have a recall and remove that person completely from the Board – but the Directors can very easily remove that person from the President’s spot — and then hopefully – problem solved.
I have to say that I’m still surprised by some of these calls and how one person can sometimes bully a whole board or even a whole community. Why don’t people fight back with simply removing that person from the Presidency?
Tags: Condo and HOA Board of Directors, Management News
I wrote this blog last year. I’m using it again because for many of us, and perhaps almost all of us, we are in the middle of the most difficult year of our lives. Nobody could have predicted the disaster that has been 2020 on a world-wide scale. So –I’m running the column again, hoping to challenge all of us into thinking about the positives that still remain in our lives and I’m hoping that your words of inspiration help inspire and cheer up all of us.
In three days from now we are supposed to sit around the table stuffing turkey down our throats while reflecting on all the things we should be thankful for. The easy ones are family and good health. Some might also be thankful for a new job, new car, new spouse or even new body part(s). How many of you however would be thankful for the community and home you live in?
Week after week, throughout the year, many of you write in complaining that there isn’t much to be thankful for in your community. While you may be sincere in your belief you’re your community is worse than North Korea and that your association should be named after Alcatraz, I also believe that if given enough time to think about it and come up with an answer, you can come up with at least one thing to be thankful for about the community you live in.
So, in the spirit of the Thanksgiving holiday, I am politely asking you to dig down, way down. Keep going. A little more…….and find something to be thankful for in your community. Perhaps you’re only thankful that someone other than yourself is crazy enough to serve on your Board. Maybe you’re thankful for a wonderful neighbor you have. Perhaps you’re thankful about the wonderful amenities your association has to offer, like the clubhouse and the swimming pool. Maybe, just maybe you’re thankful for the good work your Board is doing.
Today, you must come up with something nice to say. It’s easy to participate when the topic allows you to attack. Today, I’m asking you to work harder and say a few nice words about your community, your neighbors or dare I say it…….your Board.
To all of our wonderful blog readers and your families, I wish you a happy and healthy Thanksgiving holiday. Now….Be nice.
Thank you for your interest in Glazer and Sachs, P.A. Our six attorney firm exclusively practices community association law. Visit our website located at www.condo-laws.com and be sure to click on our “Legal Beat” newsletter where you can read our association law newsletters that we have been publishing for the past two decades. While there, you can also learn more about the firm’s attorneys, see some of our TV appearances and read articles from around the country wherein attorneys at this firm have been asked to comment about association legal issues.
Tags: Condo and HOA Board of Directors, Condo and HOA Elections, Management News
Debates are great – and can be very helpful to voters to decide which candidate they should vote for – as long as it is a real debate and not dictatorial monologues of a so-called moderator.
I am not sure how debates could create fairer elections in homeowners’ associations. The election process as written in the HOA Act gives sitting board members more or less “carte blanche” to do whatever they want – and whatever will keep them in power.
How fair can an election be if some candidates are getting endorsed by sitting board members using the official e-mail list of the association, while other candidates are being refused access to this e-mail list and are being told by association attorney and CAM that they are not getting access and that they don’t have enough money to sue for it.
Instead of having debates and/or “Meet the Candidates” meetings, we should first see that the election process in HOAs (FS 720.306) is changed to stop cheating and ballot-harvesting for specific candidates preferred by sitting board members. A common trick: This proxy is just to create the necessary quorum – but in reality it’s a valid general proxy.
Too many owners are plainly ignorant when it comes to understand the whole association system, and fall for simple tricks.
That’s why I always say that ALL OWNERS should attend board member certification seminars, not just board members.
Owners, who are being promised “EASY LIVING” in community associations, have to understand that this promise was just a sales-gimmick to get their signature on the dotted line. Reality is very different: A BAD BOARD can quickly ruin the private finances of any family.
Jan Bergemann is president of Cyber Citizens For Justice, Florida ‘s largest state-wide property owners’ advocacy group. CCFJ works on legislation to help owners living in community associations. He moved to Florida in 1995 – hoping to retire. He moved into a HOA, where the developer cheated the homeowners and used the association dues for his own purposes. End of retirement!
Tags: Condo and HOA Elections, Management News
By Eric Glazer, Esq.
Talk about beating a dead horse. I have been asked over and over and over again, by unit owners all across the state if:
-They are entitled to a refund at the end of the year or;
-They can currently withhold portions of their monthly assessment,
because the pool, restaurant, club, spa, gym, card room, library or any other common facility has been closed during the Coronavirus pandemic.
The simple answer is NO. And it is driving a lot of people crazy. As you know, the budget for 2020 was probably passed in October or November of 2019. The budget included the anticipated 2020 expenses including insurance that covered the pool, restaurant, club, spa, gym, card room, library or any other common facility. The budget covered the maintenance of the pool that was never discontinued. The budget covered maintenance of the property, landscaping, director and officer insurance, management fees, accounting fees, legal fees, fees payable to the DBRP (if you’re a condo), security, reserve accounts, repayment of bank loans in some circumstances, office supplies, major and minor repairs and so on and so on and so on.
NONE OF THESE EXPENSES CEASED DURING THE CORONAVIRUS SHUTDOWN. For all intents and purposes, the expenses of the association stayed the same in 2020, and in some cases actually went up, where the association decided to hire extra cleaning staff during the crisis to help keep the property spic and span.
So…..for those of you who have threatened to withhold your assessments. Please don’t. Trust me on this…..instead of owing $300.00 you will quickly owe $3,000.00 or more. Hopefully, we are turning the corner, our facilities will soon be opened and we can all meet again, sit in the theater again, play cards, exercise and swim together. In the meantime, wishing you and your families only the best of health.
Tags: Condo and HOA Common Area Issues, Management News
Election season is approaching in community associations all across the state. We already learned that if the governing docs say “No signs” you can’t put out Trump or Biden signs on your property. But what about the people running for the Board in your own community? Can they at least campaign?
Many associations do a wonderful thing. They hold a “Meet the Candidates Night.” Everyone running for the Board gets to speak to the community for a few minutes. The truth is however, incumbents have it harder on such an evening because the crowd often times interrupts the candidate by yelling about some dumb decisions the candidate previously made while on the board. The newbies have it easier. However, if you have a Meet The Candidates Night by Zoom or some other video conference, everyone can be muted while the candidate speaks. I definitely recommend it and I have hosted several of these previously.
Can the Board send out a letter to the community suggesting how people vote and/or telling everyone why they should vote for the incumbents again?
The Florida Administrative Code states: (for condominiums)
The second notice and accompanying documents shall not contain any communication by the board that endorses, disapproves, or otherwise comments on any candidate.
In other words – when the ballots gets sent out – no comments by the Board.
But that’s it. That’s the only mention about campaigning in the law. Now obviously, Board members should not be utilizing association resources for their personal elections. They should not be using association letterhead, envelopes and contacting members by accessing their e-mail addresses that the other candidates don’t have access to.
However, no candidate is prohibited from spending their own resources and creating a letter to send to the unit owners telling them why they are the best man or woman for the Board position.
Good luck to all the candidates!
Responsibilities of a Board of Directors for a Condo Association
The duties of the condo board encompass every aspect of the condominium’s governance and management. They are the people making all of the major decisions and establishing policies for the condo association. Under Florida law, the board or its committees set assessments for residents, hire personnel, maintain common areas, purchase insurance, obtain accounting and legal services and establish house rules. Condominium Associations
Tags: Condo and HOA Board of Directors, Condo and HOA Elections, Management News
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