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Disability Discrimination Under the Fair Housing Act  by Guest Columnist: Danielle M. Brennan, Esq. B.C.S. [Kaye Bender Rembaum]

Disability Discrimination Under the Fair Housing Act by Guest Columnist: Danielle M. Brennan, Esq. B.C.S. [Kaye Bender Rembaum]

  • Posted: Dec 17, 2024
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As directors and managers of community associations, it is likely that you are very familiar with disability-related requests for reasonable accommodations under the Fair Housing Act, particularly requests for accommodation to pet restrictions so that a disabled person may have an assistance animal within the community. However, the failure to grant reasonable accommodations is not the only form of disability discrimination under the Fair Housing Act.

The Fair Housing Act also makes it unlawful for a housing provider to refuse to permit, at the expense of the disabled person, reasonable modifications of existing premises occupied or to be occupied by such person if such modifications may be necessary to afford such person full enjoyment of the premises. For example, reasonable modifications may include widening doorways to make rooms more accessible for persons in wheelchairs, installing grab bars in bathrooms, lowering kitchen cabinets to a height suitable for persons in wheelchairs, adding a ramp to make a primary entrance accessible for persons in wheelchairs, or altering a walkway to provide access to a common use area.

In order for an individual to be entitled to a reasonable modification under the Fair Housing Act, the individual must first make a request for a reasonable modification. An individual makes a reasonable modification request whenever he/she makes clear to the association that he/she is requesting permission to make a structural change to the premises because of his/her disability. Although the association may adopt and use specified forms and procedures for processing modification requests, the association cannot refuse a request because the individual does not use the specified form or follow the established procedures. All the individual needs to do is make the request, orally or in writing, in a manner that a reasonable person would understand to be a request for permission to make a structural change because of a disability.

As part of the request, the individual must (i) establish that he/she is disabled (i.e., the person has a physical or mental impairment that substantially limits one or more major life activities) if the disability is not already known to the association or readily apparent; (ii) describe the type of modification requested; and (iii) explain the relationship, or nexus, between the requested modification and the individual’s disability.

The association is required to provide a prompt response to a reasonable modification request. An undue delay in responding to a reasonable modification request may be deemed a failure to permit a reasonable modification. There is no clarity as to what constitutes a “prompt response” or “undue delay” for a reasonable modification. However, if we are to borrow from guidance from the U.S. Department of Housing and Urban Development regarding reasonable accommodations under the Fair Housing Act, then a response should be issued within ten days.

The failure to permit a person with a disability to make a reasonable modification or the failure to promptly respond to a request for a reasonable modification is deemed discrimination under the Fair Housing Act. If discrimination is found to have occurred, the association may be subject to an injunction, forcing the association to permit the requested modification, and an award for damages, which may include punitive damages. In addition, violations of the Fair Housing Act are one of the few instances in which individual board members may be held personally liable for such violations. Given the potential for liability and the many factors which must be considered upon receiving such a request, the board must carefully evaluate a request for a reasonable modification in a timely manner and on a case-by-case basis.

The association cannot condition its approval of the requested modification upon the payment of a security deposit or the purchase of additional insurance and cannot insist that a particular contractor do the work. However, the association can require that the unit owner obtain any building permits needed to make the modification and that the work be performed in a workmanlike manner. From a practical perspective, there will need to be coordination between the association and the unit owner, for example, to obtain whatever permits may be required and to schedule the work, given that the modification may be made to the common areas owned by the homeowners’ association or the common elements controlled by the condominium association.

As to the modification itself, the disabled person is responsible for determining the type of modification and for payment of the costs of the modification. Generally, the association cannot insist on an alternative modification, particularly if the requested modification is to the interior of the unit. However, if the requested modification is to the common area or common elements, the association can propose an alternative modification (e.g., different type of modification, different placement, different design, etc.). However, if the association’s proposed alternative modification costs more than the modification requested by the disabled person, the association will be required to pay the difference.

Once the modification is installed, whether the disabled person or the association will be responsible for the upkeep and maintenance of the modification will depend upon where the modification is located and who is able to use the modification. As to modifications made to the common areas or common elements, if the modification is used exclusively by the disabled person, such person is responsible for the upkeep and maintenance of the modification. However, if the modification is installed on the common areas or common elements which are normally maintained by the association and may be used by others, the association is responsible for the upkeep and maintenance of such modification under the Fair Housing Act.

Although some modifications to the interior of the unit must be restored if requested by the association when the disabled person vacates the unit, the association cannot require the disabled person to have a modification made to the common areas or the common elements removed and area restored.

Additionally, the Fair Housing Act controls over the provisions of the governing documents of the association and any requirements of Chapter 718, Florida Statutes. For example, even if the modification is a material alteration or substantial addition to the common elements or association property subject to membership approval under a community association’s governing documents and/or section 718.113(2)(a), Florida Statutes, such membership approval would not be required for a reasonable modification under the Fair Housing Act. However, the board still must approve the requested modification at a properly noticed board meeting, and the minutes of such meeting must reflect the board’s approval of same.

Regarding property insurance for modifications to a condominium’s common elements, section 718.111(11)(f), Florida Statutes, requires that the condominium association carry adequate property insurance for primary coverage of all portions of the condominium property, only excluding from such coverage the following which is the responsibility of the unit owner: 1) all personal property within the unit or limited common elements and 2) floor, wall, and ceiling coverings; electrical fixtures; appliances; water heaters; water filters; built-in cabinets and countertops; and window treatments (including curtains, drapes, blinds, hardware, and similar window treatment components); or replacements of any of the foregoing which are located within the boundaries of the unit and serve only such unit. Therefore, if modifications are not within the unit or the limited common elements serving the unit, the condominium association is responsible to carry property insurance for the modification and will be responsible for the reconstruction, repair, or replacement of the modification if it is damaged by an insurable event.

Finally and importantly, because there are so many ways for a board to create legal liability when handling reasonable modification and/or reasonable accommodation requests, the board and manager should absolutely involve the association’s attorney, particularly if the board is going to request additional information or deny the request. Simply asking the wrong question can create legal liability for an association, such as asking for additional information regarding a person’s disability when the disability is readily apparent. Because there are so many ways to misstep in this arena, significant caution is advised.

Guest Columnist: Danielle M. Brennan, Esq. B.C.S. [Kaye Bender Rembaum]

Reprinted with permission as it appears in the December 2024 issue of the Florida Community Association Journal.


 Danielle M. Brennan is a board-certified specialist in condominium and planned development law by the Florida Bar. Mrs. Brennan is a firm member in the Palm Beach Gardens’ office and joined Kaye Bender Rembaum as an associate attorney in April 2013. She assists community association clients (including residential and commercial condominium associations, homeowners’ associations, cooperatives, and commercial associations) and developer clients with all aspects of community association establishment and operations, including corporate filings and mergers, governing document drafting and amendments, contract drafting and negotiations, membership meeting and board meeting operations, fair housing matters, land use and zoning matters, and covenant enforcement.

 

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Why Proactive Annual Lake and Pond Management Is Better for the Environment and Your Wallet

Why Proactive Annual Lake and Pond Management Is Better for the Environment and Your Wallet

  • Posted: Dec 17, 2024
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Enjoy Balanced Water with Proactive Care

Keeping a lake or pond healthy can be challenging, but it doesn’t have to be. With a proactive management plan, you can reduce water quality issues while protecting the environment and saving money in the long run.

Explore how you can keep your waterbody balanced and beautiful with proactive solutions.

Why Proactive Annual Lake and Pond Management Is Better for the Environment and Your Wallet

We have all heard the adages about being proactive: “The early bird gets the worm” and “Never do tomorrow what you can do today.” These principles apply to nearly every facet of life, whether it’s our job performance, healthcare, financial planning, or in this case, lake and pond management. It’s no secret that taking care of our environment is important, but it goes beyond that. Science suggests that the preservation of our water resources is a key factor in our health and happiness; memorable experiences and time spent around the water lead to a greater sense of peace and connection to the world around us.

Much like the human body, when a lake or pond is ‘young,’ it typically requires less effort and funds to keep it healthy and functional. But a lifetime of neglect can lead to premature aging and serious imbalances. Without ongoing management, waterbodies become inundated with organic matter, sediment, debris, and other pollutants that cause aesthetic, ecological, and functional problems. These can arise in a multitude of ways, including recurring water quality issues, nuisance weeds and algae, and foul odors—and even scarier issues may lurk unnoticed beneath the water for many years before they manifest. When they do finally appear, it is generally a sign that the waterbody requires significant intervention.

What are signs of an unhealthy waterbody?

  • Disregarded plant matter and debris can clog and damage stormwater equipment and increase the risk of dangerous flooding
  • Harmful Algal Blooms can create toxins that may harm aquatic animals, pets, and humans
  • Invasive plants like Phragmites can take years of dedicated treatments to successfully eradicate
  • Invasive animal species like armored catfish, bufo toads, and quagga mussels can out-compete beneficial native species and pose significant challenges and costs to remove
  • Shoreline instability can cause expedited lake and pond “aging” and endanger others
  • The accumulation of muck and sediment over time can reduce depth and volume – with costly and invasive dredging oftentimes being the only solution

Solutions to Restore Lakes with Poor Water Quality

The number of tools necessary to restore an imbalanced lake or pond depends on many factors, and the benefits can be fleeting if not done consistently. That’s why year-round maintenance is key. To begin developing an annual management program, aquatic specialists conduct preliminary assessments that examine the biological, physical, and chemical properties of the water. Detailed visual inspections and baseline water quality tests provide valuable insights into the overall health of the waterbody and establish an important foundation of data to inform future management decisions.

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Building A Custom Water Management Program

Once preliminary assessments are completed, a customized management program can be designed. The most effective programs lean on cutting-edge technologies, comprehensive data collection, routine laboratory analysis, and premium services like nutrient remediationalgae IDbiological augmentationoxygenation, and erosion control solutions that help stakeholders achieve the trifecta of health, functionality, and beauty. And these solutions are underscored by the guidance and expertise of scientists who specialize in freshwater management.

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Pond Management Strategy for Smaller Budgets

Lakes and ponds exhibiting more mild issues or those with budgetary limitations can still be supported by the basics like periodic visual monitoring, nuisance vegetation controlbuffer management, and decorative pond dye. These ongoing efforts help lay the groundwork until more advanced solutions come into the picture. Consulting with your lake and pond management professional can help you make the most appropriate decision for your property and your wallet.

Don’t Wait to Manage Your Water… Be Proactive!

Lakes and ponds are an investment, but the upfront costs to kickstart your management program will help to reduce expenses that are often much larger and more concerning down the road. While every aquatic ecosystem has different needs, they all benefit most from comprehensive maintenance strategies supported by the most effective and sustainable technologies available to us. Like most other facets of life, when it comes to lake and pond management “an ounce of prevention is worth a pound of cure.”

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Speed Up Your Holiday Package Intake by 80% with ImageR by Richard Worth Building Link

Speed Up Your Holiday Package Intake by 80% with ImageR by Richard Worth Building Link

  • Posted: Dec 17, 2024
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Speed Up Your Holiday Package Intake by 80% with ImageR

Twinkling lights, snowy nights, and trees adorned with festive ornaments and ribbons of yellow and gold. It’s beginning to look a lot like Christmas, which means only one thing for your front office staff: the holiday package invasion is here! Logging packages can take a long time. With all of Santa’s deliveries piling up, this can distract your team from providing your residents with the service they deserve.

When you’re ready to speed things up, ImageR is here to help. Our revolutionary smartphone-based and AI-powered package scanning function reduces the average time to enter packages from nearly one minute to less than eight seconds. With ImageR, your team will fly through delivery processing like Rudolph the night before Christmas. More than 3,600 properties worldwide are now processing about 800,000 packages a month with ImageR, and it can help make your front office operations far more efficient year-round as well.

How ImageR Works

Utilizing Image Recognition, AI, and Optical Character Recognition (OCR), ImageR turns any smartphone into a package processing powerhouse. Paired with BuildingLink’s GEO app (our iOS and Android app for management), any phone with a working camera can read labels, scan barcodes, and match resident names to packages. Beyond reading package information, it:

  • Determines the correct recipient
  • Matches the name in your building’s database
  • Confirms the unit number
  • Captures the correct event type (including the name of the delivery company)
  • Notifies the resident that the package has arrived

Meanwhile, residents can set their package notification preferences in their BuildingLink profiles and staff can send automated reminders when deliveries have been left an amount of time that you can customize. Our platform allows you to offer contactless pickup as well, a safe alternative to residents having to sign for packages.

How ImageR Helps Front Desk Teams Succeed

ImageR reduces the time to process packages by 80%, but its benefits go far beyond efficiency. Given its ease of use and direct integration into the BuildingLink database, ImageR lessens the likelihood of manual errors and missing packages. It can also be used anywhere, meaning your team no longer needs to be tied to a computer when they’re processing packages. With its automatic delivery notifications, your residents won’t have to wonder if their package has arrived.

ImageR Users Guide

If you already have the BuildingLink GEO app, you can access ImageR from the home screen. Tap the ImageR icon and your camera will open within the app, then point it at the shipping label and wait for the two-tone beep that plays only when you’ve logged the package successfully. Press save and you’ll be well on your way to processing the next delivery.

Read more and watch our video 

Sincerely,

Richard Worth

Regional Sales Director – Florida

407-529-6063

Richard@BuildingLink.com

Tips for Budgeting in HOAS and Condominium Associations. by Campbell Property Management

Tips for Budgeting in HOAS and Condominium Associations. by Campbell Property Management

  • Posted: Dec 17, 2024
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Tips for Budgeting in HOAS and Condominium Associations

by Campbell Property Management 

Creating a budget is one of the primary and most important functions that any community association board does during its tenure. The budget will serve as the guideline to determine the dollar amount owners are charged to live in their communities. There are differing obligations to consider when budgeting for a Homeowners Association (HOA) versus a condominium association. Today, we will discuss the differences and offer tips when creating your own community association budget.

Let’s start with HOAs.

HOA budgets are often a bit simpler than those for condominium associations. That is because HOA budgets normally do not require reserves. Reserves refer to funds set aside for future capital expenses and major repairs or replacements of common property or assets within the community. Unless members of the association have voted to create reserve accounts, or the original developer of the property put reserves in the HOA’s Declaration of Covenants, Conditions, and Restrictions (CC&R) – commonly referred to as simply the “declaration” – reserves are not mandatory for HOAs. However, if the HOA votes to put money away for future capital expenses, or defer line items (like maintenance), they have that option. Unlike condominium associations, HOAs are not limited or hamstrung by Florida’s Reserve Statutes, which require specific line items in the condo’s budget. For HOAs, the reserves are more like a savings account to use at the board’s discretion.

One of the misconceptions of the budgeting process is going into it with the intention of trying to hit a target assessment mark. Members may get in the mindset of trying to raise or lower assessments or reach a specific number, like deciding we want $400 a month assessments, then trying to figure out how to get there. Whether for HOAS or condominium associations, that’s really not how budgets are supposed to work.

Budgets are estimates of expected expenses for the upcoming year that are created in order to derive a necessary revenue stream. The idea is to put all of your expected expenses into a basket, itemize them through your budget, the sum of which is the necessary amount of revenue you have to generate. When you divide that amount by unit owners, that is what produces the amount of the community’s assessments, which are the monthly fees associated with living within that community.

Of course, budgets are guidelines – you’re not restricted or expected to spend every dollar on each line item. A budget is not a cap for how much you are able to spend on those items and it’s also not a restriction to only spend those specific items listed in the budget. Again, it’s an estimate and guideline so an association can collect the appropriate amount of money from its residents.

Ultimately, things may happen that were not taken into account at the time of the budgeting process. Sometimes more money is needed and other times less money is spent than what was budgeted. Both situations are certainly within the parameters of what is acceptable because this is an estimation and a guideline for best practices relative to budgets; it is not a hard and steadfast rule.

Regarding condominium associations

Florida’s Condominium and Cooperative Acts law requires associations to fund for reserves, which is the default that has existed for decades. Through next year, the board will retain the ability to call for a vote to waive or partially fund reserves. However, as of January 1, 2025, all structural integrity reserve items must be fully funded and can no longer be waived or partially funded (the well-intended purpose of this legislation is to prevent another Surfside tragedy).

With these tips in mind, we hope you have a good budget season. If ever you have any questions or concerns, please feel free to reach out to one of Sachs Sax Caplan’s experienced community association attorneys at 561-994-4499. We look forward to working with you.

 

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A guide to holiday decorating that will keep you off your HOA’s naughty list

A guide to holiday decorating that will keep you off your HOA’s naughty list

  • Posted: Dec 17, 2024
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A guide to holiday decorating that will keep you off your HOA’s naughty list

Check your association’s bylaws before making your home festive

The holidays are here, and many of the 74.1 million Americans who reside in community association neighborhoods are preparing to decorate their homes. These homeowners should be aware that many community associations have bylaws that regulate lights, trim and decorative displays. The most common association rules that regulate holiday decorations address:

  • Time. Many homeowners associations (HOAs) regulate the hours that lights may be illuminated and dates on which decorations can be displayed before and after a holiday.
  • Location. Most community association rules limit placement. In neighborhoods of single-family houses, decorations are generally permitted on the exterior of the home and must be kept within the boundaries of the yard. Owners should ensure decorations do not blow into a neighbor’s yard. In attached condominiums, many associations limit or preclude holiday decorations in common areas such as hallways and doors. Most condominium bylaws contain a restriction that prohibits an owner from making a modification to the exterior of a unit without permission from the association.
  • Nuisance. Bylaws typically preclude homeowners from creating a “nuisance.” While this definition is somewhat subjective, it could include holiday lights that are too bright or Christmas music that is played loudly throughout the night. In most cases, common sense dictates what may be disruptive to neighbors.
  • Safety. Most bylaws or rules aim to prevent dangerous or hazardous activities. If your holiday display creates a fire hazard or attracts numerous visitors who park in the street and block access for emergency vehicles, you may run into issues with your association or the local municipality.

HOA rules are intended to protect the health, safety and welfare of the community; complying with the restrictions is mandatory. Homeowners who fail to do so may initially receive a warning from the association, but continued noncompliance could result in fines or a court injunction to have the decorations removed.

Homeowners who have an issue with the holiday-decorations rules should request a meeting with the board to ask if they can be revised. Board members should be receptive to reasonable input from owners and craft rules accordingly; most owners don’t want an Ebenezer Scrooge on the board.

Fair Housing Act implications may make some holiday rules unenforceable. Religious discrimination is illegal under the act. An HOA is not allowed to show preference to one religion over another. When drafting rules, associations should be careful to avoid using terms that refer to specific holidays such as Christmas, Hanukkah or Kwanzaa. Rather, the rules should apply to all “holiday decorations” or reference “holiday trees” to ensure the religious beliefs of certain owners are not given preferential treatment.

Before decorating your home, review the community association rules to determine what restrictions, if any, exist that would regulate holiday displays. It’s a good idea to contact the community manager or the board of directors for guidance. While the holidays are a time to celebrate, owners who fail to review their association’s rules may end up with coal in their stockings. by By Kevin M. Hirzel

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30/40 Year Building Recertification: Your Property Depends on it.

30/40 Year Building Recertification: Your Property Depends on it.

  • Posted: Dec 11, 2024
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30/40 Year Building Recertification: Your Property Depends on it.

Building inspections are crucial for maintaining the safety and integrity of buildings. This is particularly true here in South Florida due to our region’s unique climate and environmental conditions. High humidity, Salt Air, extreme heat, and the hurricane season can all cause damage to building’s structure and envelopes over time. These are some of the reasons why building recertification has become mandated in South Florida every 30 or 40 years, depending on the building’s age.

 

Identifying Hidden Problems

Building inspections are essential to identify underlying problems that may not be readily apparent to residents. For instance, buildings may develop foundation cracks, leaks in the roof, or other issues that can pose significant risks to the property’s structural integrity. Regular inspections can catch these issues early and detect severe problems that may cause serious water damage or building collapse.

Building inspections can prevent these situations, uncover hidden issues, and allow for prompt repair or replacement. Identifying problems early on can also save property owners money and time by preventing more severe cases from developing. Deterioration in coastal environments is a progressive problem that will cost more to address as time passes. By addressing these problems, property owners can promote their buildings’ safety and structural integrity.

 

Cost Savings

Building inspections can provide property owners with significant cost savings in the long run by identifying potential issues early on. Often, structural engineers can find problems during an inspection that can be repaired immediately at a lower cost than if they were allowed to escalate into more significant issues.

For example, if a building inspector discovers a small leak in the roof, the property owner can have it repaired before it causes more extensive damage to the interior of the building. If left unattended, this leak could cause extensive water damage, resulting in costly repairs and possible damage to the building’s structure.

Inspectors may identify areas in the building that could be more energy-efficient. In this case, the property owner can upgrade the building’s insulation, HVAC, or lighting systems—leading to significant savings in energy costs and reducing the property owner’s overall operating expenses.

 

Experience and Expertise

Structural Workshop has extensive experience conducting building inspections. Our experienced engineers and inspectors work closely with clients to help them keep their buildings safeand well-maintained. Whether you are a property manager, building owner, or homeowner, we can help you navigate the complexity of building inspections. Please get in touch with us today to schedule a recertification or learn more about our services.

 



If your company needs marketing please contact our member
Jessica Vail
Vail Marketing Solutions
(908) 528.4087
www.vailmarketingsolutions.com

 

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HOA Parking Lot Flooded?    Now is the time to give  Allstate Resource Management a call!

HOA Parking Lot Flooded? Now is the time to give Allstate Resource Management a call!

  • Posted: Nov 26, 2024
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Our schedule is filling up fast for storm drain cleanings, the rain that occurred this weekend was a preview of what most summers will look like for your HOA community.

Contact us to talk to a Stormwater Specialist today!

Contact us at 954-382-9766 or info@allstatemanagement.com

“Why does our HOA need a lake management company?”
Sometimes, aquatic management is viewed as a frivolous or unnecessary expense for a community. “My lake looks fine, why should I pay to have someone take care of it?”
Most people that live on lakes also see them differently than someone who maintains them. The difference is homeowners tend to look “at” the water, where as waterway managers look “in” the water. Too often people put off lake maintenance until they see a problem and weed populations have already become established.
As a property owner or property manager, it’s valuable to have a company that will respond to these unexpected outbreaks. Every lake matures differently, and it takes a combination of experience and expertise to maintain a healthy balance as changes occur.
Allstate Resource Management’s staff is always there to answer your questions and works to ensure excellent results in any lake management situation.

 

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A Differing Tale of Two Terminating Condominiums by Rembaum’s Association Roundup

A Differing Tale of Two Terminating Condominiums by Rembaum’s Association Roundup

  • Posted: Nov 11, 2024
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A Differing Tale of Two Terminating Condominiums

Have an association related question?

Find your answer at RembaumsAssociationRoundup

An extremely similar fact pattern leads to diametrically opposed results between Florida’s Fourth District Court of Appeal and Florida’s Third District Court of Appeal.

In the case before the Fourth District Court of Appeal, Fellman v. Mission Viejo Condominium Association, Inc., Case No. 4D22-1260, (Fla. 4th DCA April 6, 2023), 175 of the 176 condominium units were acquired over time by a bulk owner, and the bulk owner sought termination of the condominium. However, Fellman as the single holdout objected to the plan of termination. At trial, the trial court entered a summary judgment in favor of terminating the condominium, which Fellman then appealed to the Fourth District Court of Appeal.

The Mission Viejo Declaration of Condominium was recorded in 1980 and required 100 percent consent of all unit owners as necessary to terminate the condominium form of ownership. Forty-one years later, on February 5, 2021, the bulk owner amended the required vote to terminate the condominium from 100 percent to 80 percent, using the general amendatory provision set out in the Declaration of Condominium, which required only 80 percent consent of the voting interests. Therefore, notwithstanding the original 100 percent requirement necessary to terminate the condominium, only 80 percent of the owners had to vote in favor of lowering the consent needed from 100 percent to 80 percent, which resulted in fully divesting Fellman of the right to object to the termination of the condominium.

Obviously, Fellman did not vote in favor of the amendment. Fellman argued that by allowing 80 percent of the unit owners to amend the otherwise required 100 percent consent of all owners to terminate the condominium, it fully eviscerated his right to object to the termination of the condominium and his voting rights—a right bestowed upon him when he purchased the unit. There are few things more sacrosanct than an owner’s right to vote. Nevertheless, neither the trial court nor the Fourth District Court of Appeal agreed.

While Fellman should have been able to rely on the 100 percent termination approval requirement as originally required in the declaration of condominium, the trial court believed that if the 100 percent requirement was to be protected from being amended with a lower percentage of voting interests, then the provision in the declaration of condominium should have clarified that it could only be amended by nothing less than 100 percent approval of the unit owners. Since it did not, the trial court found no issue with the bulk buyer eviscerating the 100 percent vote needed to terminate the condominium with 80 percent of the voting interests casting their vote in favor of the amendment.

Fast forward eleven months to March 13, 2024, when Florida’s Third District Court of Appeal, in Avila v. Biscayne 21 Condominium, Inc., Case No. 3D23-1616 (Fla. 3d DCA Mar. 13, 2024), noted that the provision in the Biscayne 21 Declaration of Condominium (requiring 100 percent of the voting interests to vote in favor of the termination could NOT be amended using the lower vote threshold needed to amend the declaration of condominium) was likely to prevail. As you will note, this decision diametrically opposes the outcome in the Fellman case. In this case, Avila sought a temporary injunction to stop the plan of termination. The trial court denied it. Avila appealed, and the Third District Court of Appeal agreed with Avila that Avila’s claim stood a substantial likelihood of success on the merits. The declaration of condominium at issue in the Avila case had an additional provision that required “100 percent approval for amendments that alter the voting power of unit owners.” However, it should be axiomatic that to obliterate an owner’s right to vote by terminating the condominium where the declaration had required 100 percent of the owners to vote in favor of termination could not be amended by a termination provision of anything less than 100 percent of the owners.

The Third District Court of Appeal commented that the change to the termination vote threshold materially altered the unit owners’ voting rights. By requiring a unanimous vote for termination, the declaration of condominium originally gave every unit owner an effective “veto” over any termination plan, which would be lost if the amendment adopted by using the general amendatory powers set out in the declaration of condominium were to stand. The Court even cited the Tropicana Condominium Association, Inc. v. Tropical Condominium , LLC, 208 So. 3d 755 (Fla. 3d DCA 2016), finding that nonunanimous amendments to a declaration reducing the vote threshold for termination of condominium could not be applied where the declaration expressly required the unanimous vote to amend the termination provision, and the amendment, if retroactively applied, would eviscerate the unit owners’ contractually bestowed veto rights.

In fact, Fellman also argued the Tropicana case to the trial court, which rejected the argument; and to add insult to injury, such decision was affirmed by the Fourth District Court of Appeal. So, in the world of inconsistent decisions, Fellman was denied by the Fourth District Court of Appeal the right to veto the plan of termination and is in process of potentially losing his unit, while the Avila court found his right to veto the plan of termination seemingly protected by the Third District Court of Appeal as evidenced by issuance of the temporary injunction in his favor. Unfortunately, even once the Avila case reaches a final judgment, and if in Avila’s case that decision is appealed and upheld by the Florida Supreme Court, Fellman still loses his right to veto the plan of termination as initially bestowed upon him and, even more unfortunately, will lose ownership of the unit.


Sign up for the upcoming courses.

November Board Member Certification Courses

  1. Condominium Nov. 13 – Click Here
  2. HOA Nov. 19 Daytime – Click Here
  3. HOA Nov. 21 Evening – Click Here

If you plan to enroll in any of the free courses above, please note the following:

All Board Members who attend must conduct their own webinar registration and, on the day of the webinar, log in/join in on their own, with their own unique link (or phone in information) provided by Zoom. This must take place even if you watch with other people. This assures you will appear on the attendance sheet, providing proof of attendance.

 

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“Stormwater Pond Management: Aren’t Nutrients in the Water Good?” by Solitude Lake Management.

“Stormwater Pond Management: Aren’t Nutrients in the Water Good?” by Solitude Lake Management.

  • Posted: Nov 11, 2024
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This Article provides valuable insights into the role of nutrients in ponds and lakes, explaining how excess nutrients contribute to water quality challenges like algae and weed growth.

We explore practical, eco-friendly solutions for addressing these issues, including nutrient remediation, beneficial bacteria, and hydro-raking, as well as preventative strategies like buffer management and shoreline restoration.

This article is designed to help communities implement sustainable practices that preserve the health and beauty of their waterbodies for years to come.

Stormwater Pond Management: Aren’t Nutrients in the Water Good?
SOLitude Lake Management 

 

Nutrients are a cornerstone of healthy freshwater ecosystems, playing a vital role in fostering fish, micro-organisms, and native plants. However, perhaps due to the word’s positive connotation, property managers are often surprised to learn that abundant nutrients aren’t always good. Just as ingesting too many vitamins can make you sick, an excess of nutrients can cause harmful water quality imbalances. Like many things in life, moderation is key. 

Over time, lakes and ponds become increasingly enriched with nutrients like phosphorus and nitrogen that create fertile conditions for excessive vegetation and algae growth. When it eventually dies and decays, it releases nutrients that fuel new growth. Without intervention, the cycle will perpetually continue until the waterbody fills in with decayed material. This process is called eutrophication—or, put simply, aging. 

While nutrient enrichment is normal and may occur naturally over hundreds of years, human activities accelerate the aging process and can reduce a pond’s lifespan to just a few decades. Once a pond is filled in, it can only be restored by dredging out all accumulated materials. Dredging is one of the biggest expenses a community will ever face, but by understanding why nutrient enrichment occurs and how to help slow the process, communities can prolong the need for costly dredging for as long as possible.   

During storms, rainwater picks up nutrient-rich materials and substances as it flows over sidewalks, roadways, agricultural land, construction sites, and other developed areas. The water is diverted to stormwater ponds that are specially designed to prevent flooding and filter out pollutants before the water is released downstream. Most urban ponds, particularly in homeowners communities, are man-made for this purpose. 

 

Some of these nutrient-rich materials include:

  • Lawn and garden fertilizers
  • Grass clippings
  • Leaves and yard debris 
  • Eroded sediment
  • Pet waste 
  • Septic system runoff 
  • Trash 

 

Unsightly weeds, slimy mats of algae, and toxic blue-green algae (cyanobacteria) are common signs that your waterbody is over-enriched with nutrients. If water quality tests reveal that nutrients are above desirable thresholds, communities have several solutions at their disposal to help manage them. 

First and foremost, property managers can implement impactful changes such as installing more trash bins and pet waste stations around a community, moving designated dog parks further from the vicinity of their ponds, and instructing landscapers to reduce fertilizer use and properly bag grass clippings and lawn debris. Every individual living or working in the vicinity of a waterbody influences its health and these small changes can have a significant cumulative effect over time. 

 

Incorporating these best practices can help amplify the benefits of more impactful solutions: 

 

Nutrient Remediation

This involves applying eco-friendly products that bind with or “deactivate” excess phosphorus in the water column and in the bottom sediments so it is no longer available for uptake by weeds and algae. Subsequent water quality testing will allow experts to assess if nutrient levels have been restored to an ideal range. 

 

Biological Bacteria

Biological bacteria play a central role in decomposing plant debris and organic materials. Comparable to probiotics for your waterbody, supplementing these beneficial bacteria can help make the decomposition process more efficient and inhibit the accumulation of nutrient-rich muck. These bacteria need dissolved oxygen to thrive, so installing a fountain, surface aerator, or submersed aerator can enhance their activity.

 

Mechanical Hydro-Raking

In cases of significant muck and debris build-up, experts can use a floating barge equipped with a specialized clamshell bucket to physically remove hundreds to thousands of pounds of nutrient-rich material. This can also help restore several feet of depth back to the pond, limiting flood risks.

These strategies are highly effective at targeting excess phosphorus in the waterbody, but it’s also imperative to prevent additional nutrients from invading the ecosystem. Such efforts start outside of the water and can involve residents, landscapers, and other employees. 

 

Buffer Management

While many communities desire an unobstructed view around their ponds, it’s favorable to maintain a healthy buffer of beneficial vegetation around the perimeter. These plants act as a protective barrier, filtering rainwater and capturing nutrients and debris before they enter the pond. A well-curated buffer should incorporate native plants that densely extend 3-5 feet from the shoreline and receive regular trimming and maintenance.

 

Shoreline Restoration

Pond erosion is not just an eyesore and safety hazard, it allows sediment to build-up in shallow areas around the shoreline. Tree roots, pipes, and other buried equipment can become exposed as sediment deteriorates. Experts can employ bioengineering techniques that physically reshape and anchor the shoreline in place, preventing future collapse and erosion. Sod or vegetative buffers can be installed directly on top to blend in harmoniously with community landscaping. 

 

Nutrients play a major role in the health and appearance of community water bodies, but they are only part of the equation. Maintaining balanced levels of pH, dissolved oxygen, alkalinity, and salinity is essential for clean, weed- and algae-free water. An ongoing management program tailored to your community’s specific goals and budget is one of the most effective ways to ensure your waterbody remains healthy, beautiful, and functional for years to come.

 


As part of our commitment to professional development, we offer Continuing Education courses, each worth 1 credit hour. If your company/organization is interested, please feel free to contact me for further details.

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S2E38 – A Tribute, Tough Truths, and Condo Realities (Aired 11/3/24)

S2E38 – A Tribute, Tough Truths, and Condo Realities (Aired 11/3/24)

  • Posted: Nov 11, 2024
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This week’s show is dedicated to Eric’s late mother-in-law, Linda, honoring her courageous five-year battle with cancer. We also dive into essential updates on Florida’s mandatory condo laws, and discuss the challenges of selling units amidst an oversupply. Plus, we spotlight PD Concrete’s impressive work and touch on the critical importance of voting in the upcoming election.

As always, we’ll be taking your calls on whatever topic you need answers to or whatever you need to get off your chest.

Call in with your questions & comments or ask them in the live YouTube chat! (717) 452-9378

 


Keep up to date with new topics for Condo and HOA Communities each week on Condo Craze & HOAs every Thursday on YouTube 

The next show:

Condo and HOA Elections: Are You Making These Costly Mistakes?

This Sunday on Condo Craze and HOAs, Eric and Karen dive into a critical topic for every Florida association: election season! With the national elections behind us, it’s time to focus on your community’s elections and ensure the process runs smoothly. We’ll cover the essential steps, from sending out the first notice 60 days in advance to handling candidate information sheets and voting certificates. Eric will highlight common mistakes—like incorrect deadlines, missing documents, and improper ballots—that could force costly do-overs.

As always, we’ll take your calls on any topic you need answers to, or anything you need to get off your chest live in the chat or call in at 717-GLAZER8. Don’t miss it.

 

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