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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computer or cell phone the world may ever see, a month later there’s new technology that makes you device already seem outdated.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
Most condominium unit owners may think that limited common elements are those areas outside the condominium unit that are part of the common elements, but which are used only by a specific unit owner. However, the Florida Condominium Act defines “limited common elements” as “those common elements which are reserved for the use of a certain unit to the exclusion of all other units, as specified in the declaration.” (FS 718.103(19), emphasis added). Thus, the determination of whether a common element (i.e., any area not included within the unit boundaries) is a “limited common element” depends solely upon the designation set forth in the property’s declaration. Brown v Rice, 716 So.2d 807 (5th DCA 1998).
This requirement that limited common elements (“LCE”) must be “specified in the declaration” can be crucial when it comes to assigning maintenance responsibility. While maintenance of common elements (of which LCE are a subset) is statutorily the responsibility of the association, the Condominium Act provides that “the declaration may provide that certain limited common elements shall be maintained by those entitled to use the limited common elements…” FS 718.113(1). However, the fact that unit owners are assigned the maintenance obligation in the declaration for areas outside of their unit under their exclusive control may not mean much if the area is not designated as a limited common element in the declaration of condominium; in such case the declaration may be assigning maintenance responsibility for something that does not technically exist. Without such specific designation the area would remain a part of the common elements, and the maintenance responsibility of the association.
When patios and balconies are associated with units, they are usually plainly marked as limited common elements in the unit diagrams and are thus “specified.” But there are less obvious things external to a unit, but used exclusively by the unit owner, that may escape specification in the declaration such as external air conditioning units, air conditioner connecting lines, air conditioner condensate drain lines, or plumbing lines that serve only one unit. If the intent is to assign the unit owner the maintenance responsibility for such things, they must be specified as limited common elements in the declaration. Conversely, the mere fact that the LCE are specified in the declaration does not automatically make the LCE the maintenance responsibility of the unit owner. LCE are, after all, a part of the common elements, and by default are an association maintenance obligation. To properly assign the maintenance obligation to the unit owner, the declaration must both specify the item or area in question as a limited common element and designate the maintenance obligation to the unit owner.
If your association has portions of the common elements that serve only one unit owner, or group of units, which are not specified in the declaration as limited common elements, the Condominium Act was amended a few years ago to allow the association to reclassify these portions of the common elements as limited common elements, by amending the declaration (and amending the maintenance obligations, if necessary). If these obligations are not clear in your condominium declaration, consult with your attorney to determine whether amendments to reclassify portions of the condominium property from common elements to limited common elements would be beneficial to your community.
Michael O. Dermody
Senior Attorney
tel:772.286.2990
MDERMODY@beckerlawyers.com
Michael Dermody concentrates his legal practice in commercial litigation, with a focus in appellate writing. He was admitted to the Florida Bar in May, 2007, and has been a member of the New Jersey Bar since 1996. Prior to coming to Florida, Michael was the principal of his own solo practice in Frenchtown, New Jersey. In 2005, he submitted an amicus curae brief in the landmark U.S. Supreme Court medical marijuana case, Ascroft v. Raich. Since 2007 he has focused on community association law with a concentration in community association litigation.
Tags: Condo and HOA Common Area Issues, Condo and HOA Laws, Management News
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Tags: Condo and HOA Common Area Issues, Management News, Security and Safety Articles
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Tags: Asphalt and BlackTop Articles, Condo and HOA Common Area Issues, Management News
By SOLitude Lake Management, Nov 19, 2020
AS SEEN IN National Community Association Institute’s (CAI) publication, Common Ground
The very first fish I remember catching was a bullhead catfish. It was in a small pond in my grandparents’ HOA community that is still there today. Well, sort of. Though the pond had once been deep enough for fishing and stormwater collection, its depth is now best measured in inches rather than feet. The cattails that were once clustered near the outflow are now abundant throughout the pond. Today, the waterbody resembles the nearby wetland more than it does a pond. In the 55 years of its existence, no measures have ever been taken to mitigate against the natural process of succession.
Lake and pond succession is the natural lifecycle of any waterbody. The very tributaries that supply a waterbody with its water also carry sediment, which over time accumulates and decreases the water depth. Aquatic weeds and nuisance vegetation decompose and create additional organic sediment. And the shallower the pond becomes, the more vegetation it produces—accelerating the aging process.
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Tags: Condo and HOA Common Area Issues, Security and Safety Articles
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Tags: Condo and HOA Common Area Issues, Lake Management Articles, 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
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