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Find Blog Articles for Florida’s Condo, HOA and the Management Industry.
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I like to re-publish this article every few years because it is so important. As we get closer to summer we are simultaneously getting closer to lots and lots of empty condominium units because many owners are returning up north for a few months. Just because you leave your Florida condominium for a few months however does not mean that your responsibility to maintain your unit stops once you hit the Georgia border.
Every declaration of condominium has a general clause that requires the owner of the unit to maintain his or her unit in good condition. In fact, arbitration decisions have held that “where an owner does not reside in the unit, it is incumbent on the owner to routinely and periodically examine and inspect the unit to ensure the absence of leaks and conditions that would otherwise lead to damage to the building and its occupants. In recognition of the fact that where multiple owners occupy a single building, a problem that develops in one unit may well affect other units and the common element components of the building.” See: Los Prados Condominium Association v. Lemley Case No. 03-6092; May 25, 2004, Arbitrator, Scheuerman.
So, if you’re headed up north for a few months, and you know that a friendly neighbor is going to remain in Florida, make sure to leave that neighbor a key to your unit and ask him or her to check the place every now and then. And…..if your association governing documents require that you leave the association with a key, you BETTER DO THAT! There is virtually no excuse for failing to do so, but that’s for another column. If you don’t leave a key, remember that the law provides:
(5) RIGHT OF ACCESS TO UNITS.—
(a) The association has the irrevocable right of access to each unit during reasonable hours, when necessary for the maintenance, repair, or replacement of any common elements or of any portion of a unit to be maintained by the association pursuant to the declaration or as necessary to prevent damage to the common elements or to a unit.
If the association thinks a leak is coming from your unit, if they don’t have a key, they’re using a locksmith and/or breaking your lock or door to get in. And, they’re entitled to do it, if they have no other reasonable means to get in. And…….. it’s the unit owner who is going to pay for the lock and door repair if there really was a leak. Bottom line…be smart….plan ahead and make sure that when Florida gets in your rear view mirror this year, someone is still left behind watching your unit.
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One of the most challenging aspects of lake maintenance is communicating the management program to the clients. A homeowner that sees a lake from a purely aesthetic point of view has a vastly different understanding than an applicator that is actively managing it.
We have the ability to help you educate your homeowners about their lakes and what we do. When you have questions about how your lake is being cared for, our experienced applicators are available to provide you with the answers you need. Feel free to print any of our “Understanding Your Lake” articles in this resource section.
If you would like us to supply articles for your HOA newsletters regarding waterway issues, please give us a call. We are also available for consultation presentations to HOA’s. We are a DBPR approved provider of CEU credits for CAM s and are available to supply your property management company with accredited courses.
Q: How can a homeowners’ association regulate owners renting out their houses to short term guests? If the association were to enforce with a penalty, how can it collect on it? (E.H., via e-mail)
A: The place to start is knowing what your governing documents and local laws say about the subject. For example, some municipalities limit rentals in residential areas to a 30-day minimum, so violations could be reported to the local code enforcement agency.
Most documents limit the use of homes to “residential use.” These provisions have been extensively litigated in courts across the country and there is not a bright line test defining what activities constitute residential or commercial uses. However, courts have generally been reluctant to apply a residential use provision as a restriction on short-term rentals, and there is at least one appellate court decision in Florida to that effect.
Therefore, the most effective way to address rental restrictions is a specific provision in your declaration of covenants setting forth permissible and impermissible rental durations. Many declarations contain such a provision, while some do not. If your declaration does not contain a rental limitation, it would have to be amended in the manner set forth in the declaration. Most declarations require some level of super-majority approval for amendment, two-thirds and 75% being the most common standards. Some declarations require the vote be calculated based on all eligible voters, and some provide that the calculation is based on those who vote at a duly noticed meeting at which a quorum is established.
You should also be aware that the Florida Homeowners’ Association Act was amended in 2021 to limit the ability of homeowners’ associations to amend rental rights. The retroactive application of that statute to pre-existing associations is a complicated and open legal question. The new law provides that amendments limiting the duration or frequency of permissible rentals is only applicable to those owners who vote in favor of the amendment, those who vote against the amendment or don’t vote are “grandfathered,” but the amendment would be binding on their successors in title.
Importantly, Section 720.306(1)(h) of the Florida Homeowners’ Association Act does permit amendments that prohibit rentals for a term of less than six months or prohibit rentals of less than three times during a calendar year to be applied to all parcel owners if the declaration is properly amended, whether an owner voted in favor of the amendment or not.
Once you have determined what the actual rule is, the next question is how you enforce it. As stated above, if the rental violates local ordinances, referring the matter to code enforcement may be an effective and inexpensive way to seek redress.
Fining and suspension of common area use rights are one avenue, but probably not the most effective for this kind of violation. Many homeowners’ associations do not have the level of amenities where suspension of the right to use them deters violations. Fines are capped at one thousand dollars in the aggregate for ongoing violations, unless the governing documents permit a higher amount. There is also a somewhat detailed notice and hearing process that must be followed to impose a fine or suspension. If a fine is properly levied, it can be a lien upon the home if it is for one thousand dollars or more and the language of your documents may also come into play. Otherwise, the venue to collect a fine is small claims court, and the prevailing party in a suit to collect a fine is entitled to recover their attorneys’ fees from the losing party.
The better approach for this type of violation is direct legal action by the association against the owner seeking a court order (injunction) to enforce the rule against short term rentals. Well-written documents may give you additional leverage in a court action. Generally speaking, the winning party can collect their legal fees from the losing party. The association’s lawyer should be brought into the picture early in the process, so he or she can advise what pre-suit steps may be necessary to protect your ability to enforce the restriction.
Joseph E. 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.
Kaye Bender Rembaum is a full service commercial law firm dedicated to the representation of community associations throughout Florida. Under the direction of attorneys Robert L. Kaye, Esq., Michael S. Bender, Esq., and Jeffrey A. Rembaum, Esq. Kaye Bender Rembaum provides its clients with an unparalleled level of personalized and professional service regardless of their size and takes into account their individual needs and financial concerns. They have offices in Pompano Beach, Palm Beach Gardens and Tampa, and in Miami-Dade by appointment.
The associates of Kaye Bender Rembaum establish relationships with clients to understand their needs and goals. Kaye Bender Rembaum assists clients in all matters of Association representation including, but not limited to, collection of assessments, contract negotiation, covenant review and amendment, covenant enforcement and construction defect claims. Kaye Bender Rembaum also keeps clients up-to-date on new developments in the law and how they personally affect them. The firm provides prompt, effective, high quality, cost-efficient and understandable legal advice and services to a diverse client base. Associates strive to help clients operate and administer their communities better and to educate them on their responsibilities and duties under Florida law and their governing community documents. Robert Kaye, Michael Bender and Jeffrey Rembaum are industry leaders who are often sought out by public policy makers and the media for advice and commentary on community association law.
The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation. Thank you for your interest in Kaye Bender Rembaum.
Many condominium and homeowners’ associations’ activities are required to have a certain amount of transparency. One way that association activities are made transparent is through statutory provisions requiring most kinds of meetings to be open and noticed to the membership. In fact, applicable laws governing the operation of condominium and homeowners’ associations allow board members to communicate by email but prohibits them from voting on issues by email.
Notably, a gathering of a quorum of board members to conduct association business is considered a board meeting (whether taking place in person or by real-time electronic means) and is required to be noticed and open to association members. However, two important exceptions apply. Namely, meetings of the board or an association committee at which the association’s attorney is participating for the purpose of rendering advice upon proposed or pending litigation are not required to be open to association members. Similarly, board meetings held to discuss personnel matters are also not required to be open to association members.
Association members are entitled to speak at open meetings on “designated items” (HOA) or an item on the agenda in a condominium. However, the rights of members to speak at meetings is subject to any rules adopted by the association governing the frequency, duration, and manner of member statements. The right to attend open meetings includes the right to tape record or videotape them, as long as such recording activity is not disruptive. Furthermore, the Division of Florida Condominiums has adopted rules regarding recording condominium association meetings (found in Fla. Admin. Code Rule 61B-23.002(10)), and the Homeowners’ Association Act provides that homeowners’ associations may adopt their own pertaining to recording homeowners’ association meetings.
As such, there are statutory meeting requirements that must be followed for board meetings which must be kept in mind when an association is adopting or changing its procedures. Failing to follow the basic statutory requirements may result in problems. Questions about board meetings, committee meetings, which have their own set of requirements, and members’ meetings should be directed to legal counsel for guidance.
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!
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.
Lawmakers have a way to save Florida homeowners $150 a year but State Farm doesn’t like it
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Inflation is currently at its highest level in 40 years. And it does not appear to be going down anytime soon. Last year, the inflation rate hit 7% and by February of this year it increased to 7.9%. Consumers have seen prices of everything from gas to groceries increase.
As you can see from the chart below, we have been very fortunate with inflation rates hovering around 2% for the last 10 years, as represented by the green line. While in the last 30 years, we have rarely exceeded 4%, as represented by the red line. Now, we are faced with 8%, which again, we have not seen in over 40 years.
Inflation has already affected many community associations with many raising their dues between 3-5% for the 2022 budget year. But that increase was not enough especially with the continued impact of insurance, labor, and material increases. Most community associations need to be prepared to raise dues 10-15% in 2023 to combat inflation.
Homeowners are usually not happy when dues go up. However, as expenses for communities increase, so does the need for an increase in the dues. Now is the time to prepare your residents for an increase in dues in 2023 so they are not blindsided.
Here are some of the items in most community associations that are increasing in cost:
For most community associations, the budget for 2023 will reflect higher anticipated expenses, which means dues will need to increase. Now is the time to prepare your residents for this increase. This year is unlike any other year. You CAN NOT rely on “standard” budget raises and expect to be able to pay your bills in 2023. You should NOT wait until the end of the year, hoping this will change. You need to start planning NOW and letting your owners know NOW.
Throughout the remainder of 2022, we will have a blog post each month discussing this inflation storm and offer tips for your association to ride it out.
by Ashley Dietz Gray, VP Marketing
Watch the Webinar: Updating Governing Documents
We recently held an educational “Updating Governing Documents” webinar with Emily Gannon from Kaye Bender Rembaum to discuss why updating governing documents is critically important. The Webinar covered: The Hierarchy of Governing Documents The Amendment Process Common Misconceptions and more…
https://www.youtube.com/watch?v=UdKVohy_DhY&feature=emb_imp_woyt
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