Become our Member : JOIN SFPMA TODAY   LogIn / Register: LOGIN/REGISTER

SFPMA Industry Articles | news, legal updates, events & education! 

Find Blog Articles for Florida’s Condo, HOA and the Management Industry. 

Condominium owners in St. Petersburg face towering uncertainty as over 200 buildings must complete Milestone Inspection Reports by Dec. 31.

Condominium owners in St. Petersburg face towering uncertainty as over 200 buildings must complete Milestone Inspection Reports by Dec. 31.

A new state law requires mandatory structural studies on older condo buildings with three or more stories. Senate Bill 4-D also requires association boards to increase repair funding reserves, and many owners now face six-figure special assessment fees.

 Don Tyre, building official manager, provided city council members an update on the local process at a July 11 committee meeting. He noted that 225 condo buildings must submit reinspection reports this year, as all exist within three miles of the coast.

“I’m hoping to get three-quarters of the buildings to submit by December,” Tyre said. “There are going to be some issues; this is a new regulatory requirement. There’s only so many engineering firms that do this work.”

He said bill provisions allow deadline extension in some extenuating circumstances. The city will address delinquent buildings on a “case-by-case basis.”

The legislation, passed in May 2022, stems from the Chaplain South Tower’s collapse in Surfside, Florida. The catastrophe – still under investigation and blamed on several factors – killed 98 people on June 24, 2021.

 

Miami-Dade and Broward Counties were the only jurisdictions to mandate structural inspection programs for existing buildings before the collapse. The local ordinances required buildings over 40 years old to receive a 10-year recertification.

SB 4-D established a 25 or 30-year program for cooperative and condo buildings. Those within three miles of a coastline and built before July 1, 1997, must abide by the earlier timeframe.

“That’s, basically, what we’re going to be following – a 25-year inspection program with a 10-year reinspection portion,” Tyre said. “December of this year is the big date. It’s been postponed once; I don’t anticipate it being postponed again.”

He noted that 68 of the 225 buildings have submitted milestone reports. The legislation also applies to commercial structures of any height with an occupancy limit exceeding 500 people.

Local governments must submit a 180-day notice to affected owners and associations. St. Petersburg issued those forms June 28.

Tyre explained Phase I is a visual inspection from an architect or engineer to discern “any possible substantial structural deterioration.” Those could require further evaluations, and stakeholders must submit a Phase II Inspection report within 180 days.

“The responsibility falls to the condo ownership group and architectural or engineering firm they hire to provide that documentation,” Tyre added. “If they deem it necessary to go into a Phase II inspection, that’s a more forensic investigation.”

He said that could include building material sample testing, movement measurements, soil studies and “a number of different building imaging options.” The owners have one year to pull permits and start repairs if the architectural or engineering firm finds significant deterioration.

“If there’s a life safety issue, that’s when we (the city) would step in as a regulatory authority,” Tyre said. “And potentially, either evacuate the building or a portion of the building – it could be limited to just a small area, like a couple of balconies or something like that.

“There’s going to be some condo associations or buildings that will require a deeper review.”

Tyre said the inspections focus on structural integrity rather than code violations and fall outside the city’s scope. However, building officials will provide oversight.

Councilmember Brandi Gabbard requested the update and noted that received reports would constitute municipal public records. She said that would help inform prospective buyers.

“Anybody who has ever bought or sold a condo knows that sometimes it is challenging to get all of the documentation regarding the condo association the way it is now,” Gabbard said. “But then when you add this on top of it, and the type of reserves that we could potentially see being increased, there is some concern over transparency …”

Tyre said building officials must redact some information, and residents must submit a formal public records request to receive documentation. Elizabeth Abernethy, director of planning and development services, said they could explore creating an online portal to streamline the process.

The legislation allows local governments to implement a fee for reviewing submitted inspection reports. Abernethy believes the city has adequate staff to “get through this initial push and wouldn’t be necessary to charge an additional fee for review those reports.”

However, buildings needing repairs must pay associated permitting costs. Gabbard said she has “no desire” to require additional payments.

“Some of these reserve needs are going to be pretty hefty,” she added. “I don’t think we need to pile on.”

Thank You for the contribution of this article so others can learn.

Published on July 16, 2024 By

Florida Condo Building Inspections (SB4d)

The State of Florida  Property Management Association with Legal & Engineering Members are here to  provide help so you understand the new laws and how to take the correct action to ensure you are in full compliance.

http://FLBuildingInspections.com  (a division of SFPMA)

 

Tags: , ,

A Guide to Sending the New Notice of Late Assessment By: K. Joy Mattingly, Esq.

A Guide to Sending the New Notice of Late Assessment By: K. Joy Mattingly, Esq.

  • Posted: Jul 16, 2024
  • By:
  • Comments: Comments Off on A Guide to Sending the New Notice of Late Assessment By: K. Joy Mattingly, Esq.

A Guide to Sending the New Notice of Late Assessment

By: K. Joy Mattingly, Esq.

As of July,  associations are required to send delinquent owners a Notice of Late Assessments, giving the owners 30 days to bring the account current prior to turning the account over to the association’s legal counsel for collections.

Failure to provide the delinquent owner with this 30-day notice will preclude the association from recovering legal fees related to past due assessments, i.e., any fees incurred in a subsequent collection/foreclosure action.

The notice must be sent via first class United States mail to the owner’s last address as reflected in the association’s official records, and if the last address is not the property address, the notice must also be sent to the property address by first class United States mail. The notice is deemed delivered upon mailing and a rebuttable presumption that the notice was mailed as required can be established by a sworn affidavit executed by a board member, officer or agent of the association, or by a licensed manager.

A form for the 30-day notice, titled “Notice of Late Assessment” can be found in §§718.121, 719.108 and 720.3085, Fla. Stat.

While the statutory instructions for the Notice of Late Assessment may appear to be straight-forward and easy to follow, there are several ways that the process can go awry. These missteps can result in an association having to send out a new Notice of Late Assessment, further delaying the collections and foreclosure process and adding to the association’s workload and frustration. But fear not! An association can avoid pitfalls in the process by incorporating the following best practices when drafting and sending the Notice of Late Assessment.

First, when detailing the delinquency in the Notice, the assessments, interest and late fees owed should be broken out rather than listed as a lump sum.

If there are other amounts owed, such as fines, these should be listed separately from the monthly or quarterly assessments. Late fees (if applicable) and interest should be listed below the monthly or quarterly assessments and the annual rate of interest should be detailed as well.

Second, when sending the Notice of Late Assessment, the association should check the county property appraiser’s website and the current deed for additional mailing addresses for the owner. While the statute requires the association to send the notice to the property address and the last address “as reflected in the association’s records”, there is always the possibility that the association’s records have not been properly updated or maintained to include additional addresses. Taking a few minutes to conduct this search at the beginning of the process can eliminate the possibility of an owner subsequently arguing that the association failed to send the notice to a relevant address. If the owner is successful in this argument, the association will be precluded from collecting the subsequent legal fees incurred in the collections/foreclosure process.

Third, the association should keep a copy of each Notice of Late Assessment sent to an owner as part of the association’s records. This will enable the association to provide the copy in support of the association’s sworn affidavit that the notice was mailed to the owner, should the owner subsequently dispute that the notice was provided.

In addition to following the best practices detailed above, the association should consult with its legal counsel to confirm that the association’s collections policy, practices and procedures are in conformance with the applicable statutory requirements.

 

Tags: ,
When unit owners refuse to pay their assessments, it puts everyone in a bind, condominium assessment liens might be one way?

When unit owners refuse to pay their assessments, it puts everyone in a bind, condominium assessment liens might be one way?

  • Posted: Jul 16, 2024
  • By:
  • Comments: Comments Off on When unit owners refuse to pay their assessments, it puts everyone in a bind, condominium assessment liens might be one way?

Florida Condominium Associations and Homeowners Association Boards have many challenges in managing the needs of their communities. As a result, when unit owners refuse to pay their assessments, it puts everyone in a bind. Fortunately, there is a key tool that you may use in Florida to compel payment of the monies due: a condominium assessment lien.

Collecting Assessment Revenue Through A Condominium Assessment Lien
There are steps that must be taken in order for a condominium association lien to be properly filed. This is a brief summary of the steps:

 

*A condominium association’s governing documents in conjunction with Section 718.116, Florida Statutes, are the genesis of the condominium association’s authority to impose and perfect assessment liens against individually owned units within the community.

 

 

Delinquency Notice

This is not a requirement but good collection practices dictate that the association attempt collection efforts prior to engaging a law firm. Sometimes the unit owner may have just forgotten to place the payment in the mail. These delinquency notices can help remind the unit owner of their payment obligation.

 

Notice of Intent to Lien

The first statutorily required step is to send a formal letter from the law firm announcing the association’s intent to place a lien on the unit for the failure to pay. The letter has very specific requirements and should be sent from the association’s attorney. If a condominium, the association must wait 30 days from the date of this letter to record its lien. The time frame for a Homeowners Association is 45 days.

 

Claim of Lien

This is the actual document that gets recorded in the public records and encumbers the unit. It must have the Unit legal description, the owners name and a description of the delinquency. There is a form in the statute and Florida law requires that this lien be created and recorded by the association attorney.

 

Notice of Intent to Foreclose

After the lien is recorded, another notice must go to the unit owner announcing the intention to take the unit by legal process. The association must also wait an additional 30 days after this notice is sent. 45 days for HOAs.

 

Foreclosure Action

This is the lawsuit that will take the unit. A Lis Pendens is recorded when the lawsuit is filed to provide public notice of the legal action on the lien. Most lien foreclosure actions result in either settlement of the claim of taking of the unit. Defenses to lien foreclose actions are tough to prove and seldom release the unit owner from the obligation to pay the assessment.

 

 

Time Is not on your side, dont delay if this is the action you are taking?

It is imperative that all these steps are followed to the tee or the lien may be dismissed outright. In addition to these steps, Florida condominium associations can take additional steps such as suspending unit owner common element or amenity rights. This is done by alerting the unit owner of the delinquency and then if amount is greater than $1,000 and 90 days the Board may consider the suspension of voting rights at a board meeting. The unit owner will then receive notice of the suspension after the vote has occurred.

 

Florida Condominium Associations

Under Florida State Law, only an attorney may draft a condominium assessment lien, because it contains a legal statement. Once the lien is filed, there is a one year timeline for Florida condominium associations to file suit. If the Association misses that deadline, the whole lien process will have to be redone. Therefore, it is paramount that the steps are followed properly, and in a timely fashion, or you may forfeit what is due to the community.

Remember to contact your Attny, Ask them for the best options for your communities!

 

Tags: , ,

One thing has become clear since the fall of the Champlain Towers South condo: many condos are falling apart, often because owners don’t want to spend the money to maintain them. Soon, they might have no choice but to pay.

One thing has become clear since the fall of the Champlain Towers South condo: many condos are falling apart, often because owners don’t want to spend the money to maintain them. Soon, they might have no choice but to pay.

  • Posted: Jul 16, 2024
  • By:
  • Comments: Comments Off on One thing has become clear since the fall of the Champlain Towers South condo: many condos are falling apart, often because owners don’t want to spend the money to maintain them. Soon, they might have no choice but to pay.

A Broward task force will likely ask the state to boost inspections and change funding of reserves. But any new rules will face regulatory and political hurdles.

Broward County task force agreed, informally, to recommend a change in state law that would make it harder for condos to waive the proper funding of reserves and to require more frequent inspections for coastal condos. The changes, if adopted by the state, could make condo living more expensive, but safer.

“It’s going to hurt in the beginning, but that’s where we have to get,” insurance expert Paul Handerhan, president of the Federal Association for Insurance Reform (FAIR), told the committee Monday, echoing many of their own opinions. “… There’s no way to get out of this without paying.”

Monday’s was the second of three meetings for the Broward County Condominium Structural Issues Committee, set up by Mayor Steve Geller to quickly offer recommendations to the Florida Legislature, whose committee meetings begin next month.

The Florida Bar and the Community Associations Institute trade group also are studying issues arising from the June 24 condo collapse in Surfside, and will offer recommendations to the governor and Legislature.

All are focused on just a few topics, including the issues of reserves and inspections.

Currently, reserves can be waived by majority vote of those present at a condo meeting. And the first major inspection is not required in Broward until a building turns 40.

“We’re here to try to come up with creative ways to make buildings safe. What Surfside has done is made city officials, building officials, condo residents, everybody aware of the widespread lack of maintenance in older condos,” said Hollywood Commissioner Caryl Shuham, who has a degree in civil engineering and is an attorney.

She recommended, and the committee conceptually agreed, that condos should have to present a reserve study to unit owners and secure a super-majority vote to waive full funding of reserves. She also suggested reserves not be waived unless an engineer has inspected the building and issued a report.

The potential cost to condo owners is not lost on state, county and city officials or the civic and industry leaders huddling on the issue. While some million-dollar condo owners might have no trouble forking over extra money, many unit owners are not in that category. Even the inspections are costly, one condo representative said. Unit owners could be forced out and condo sales could be stifled, some said.

“In certain cases, you could be mandating the death of a building,” said Fred Nesbitt, president of the Galt Ocean Mile condo association in Fort Lauderdale, which opposes reserve mandates. “I think we should still give owners choice.”

Geller said condos that don’t properly save for repairs face sticker shock with giant special assessments. By the time a major problem is found, he said, it’s too late to start paying into reserves.

“You can’t insure a burning building, and you can’t start reserving for an emergency that has already arrived,” he said.

The cause of the Champlain collapse remains unknown but is under investigation. Because there was evidence of poor maintenance and crumbling, cracking concrete at the Champlain, there has been a sharp focus on how government can ensure that condos are kept in good repair.

“It’s terrifying to me that we’re in this place,” said state Sen. Lauren Book, one of four state legislators on the county committee. Book complained that there’s no one keeping track of individual condos – where they stand with insurance, reserves and repairs.

The committee also debated whether more frequent inspections are needed. Broward is one of two counties in Florida – the other being Miami-Dade – that requires buildings to be inspected for electrical and structural safety at age 40 and every 10 years subsequently.

Dr. Jennifer Jurado, Broward County’s climate change sustainability director, said the striking increase in sea level here – more than a foot over 20 years – could increase deterioration of concrete in buildings along the coast. She also cited temperate change and flood levels in saying that inspections should begin earlier, at 25 or 30 years.

But Dan Lavrich, a structural engineer and chairman of the Broward County Board of Rules and Appeals, which oversees application of the building code, questioned the need. Any change in the inspection program would have to be approved by Rules and Appeals, and the Florida Building Commission.

“The rest of the state has no program at all,” he said of the 40-year safety program, “and they don’t have any problems.”

The Broward committee will hold what it expects to be its final meeting next week, on Aug. 30, where formal recommendations will be voted on.

Reposted via: https://www.floridarealtors.org/news-media/news-articles/2021/08/condo-law-changes-likely-after-surfside-its-complicated

 

Tags: , , , ,
By now, you likely have heard that House Bill 1021 was signed into law by the Governor on June 14, 2024.

By now, you likely have heard that House Bill 1021 was signed into law by the Governor on June 14, 2024.

This new law impacts condominium associations governed under Chapter 718 of the Florida Statutes and for the most part has an effective date of July 1, 2024 (one Section is effective January 2026).

There have been several local (and even national) news stories focusing on various aspects of these wide-ranging changes, which are intended to strengthen what is perceived as a lack of oversight of board members and other stakeholders in the operation of condominium associations….

Read the full article on our website:

Thank You to our Legal Member and Sponsor.

Reach any office: 800-974-0680
What is in store for new condo laws? MANDATORY EDUCATION!

What is in store for new condo laws? MANDATORY EDUCATION!

  • Posted: Jul 07, 2024
  • By:
  • Comments: Comments Off on What is in store for new condo laws? MANDATORY EDUCATION!

What is in store for new condo laws? MANDATORY EDUCATION!

In 2009, attorney Eric M. Glazer began a career in radio, starting and hosting the weekly Condo Craze and HOAs Radio Show on 850 WFTL. During the show, Eric answers questions from the callers week in and week out and the show has become incredibly popular throughout the state.

links:

Condo Craze Blog    condocrazeandhoas.com

watch the Shows, every Sunday at 11am     www.youtube.com/@CondoCrazeandHOAs

 

Property Management Legal Forms: forms are always needed for proper operation.

Property Management Legal Forms: forms are always needed for proper operation.

  • Posted: Jun 26, 2024
  • By:
  • Comments: Comments Off on Property Management Legal Forms: forms are always needed for proper operation.

Property Management Legal Forms

As you become a CAM Manager and start your business or have a Property Management Business that is established, forms are always needed for proper operation.

 

We offer Subscriptions – Where for a small fee you can download and get access to EVERY FORM YOU WILL NEED FROM THOUSANDS OF FORMS

 

View the Property Management Forms

 

PMLegalForms.com – Property Management, Eviction, Notices to Tenants and Owners, Letters, and many other Legal Documents can be found, View from over 85,000+ Legal Forms simply find and download!  

With our New Subscription Plans you can subscribe and get access to all of our Forms at any time!  We now have Forms for every State in the US. You can buy just the single form you need or Subscribe and get access to all of the Forms for one low price!

 

Just some of the essential forms to assist Property Managers with: leasing your premises, complying with legal requirements, and keeping relations with your tenants amicable. Forms include the 1. Landlord Tenant Closing Statement to Reconcile Security Deposit, 2. Residential Rental Lease Application, 3. Residential Rental Lease Agreement, 4. Commercial Building or Space Lease, 5. Security Deposit Agreement and other forms.

 

Tags: , ,
Condominium Legislative Spotlight-House Bill 1021

Condominium Legislative Spotlight-House Bill 1021

By now, you likely have heard that House Bill 1021 was signed into law by the Governor on June 14, 2024. This new law impacts condominium associations governed under Chapter 718 of the Florida Statutes and for the most part has an effective date of July 1, 2024 (one Section is effective January 2026). There have been several local (and even national) news stories focusing on various aspects of these wide-ranging changes, which are intended to strengthen what is perceived as a lack of oversight of board members and other stakeholders in the operation of condominium associations. If you have not done so already, we encourage you to review our comprehensive update that includes all of the 2024 relevant legislative changes impacting both condominium and homeowners’ associations (which can be found HERE).

As these new changes can be overwhelming to digest all at once, for this article, we will focus on a few key new items that will directly impact your day-to-day operations:

(A) Official Records:

(i) Website: Currently, only an association managing a condominium of 150 or more units must post copies of its official records on its website. With the new changes, by January 1, 2026, any association managing a condominium of 25 or more units must have a website with its records posted and available for unit owner review.  Further, in response to a record request, an association may direct the requesting party to its website (rather than having to schedule a physical inspection appointment).

(ii) Organization and Checklist:  The Official Records must be maintained in an “organized” manner, and in the event any of the records are lost, destroyed, or otherwise unavailable, the association will have a “good faith obligation” to obtain and recover the records as soon as reasonably possible. Further, in response to a record inspection request, the association must provide a “checklist”, which identifies the records that were provided and the records that were not made available (the “checklist” is an Official Record itself and must be maintained for 7 years).

(iii) Emails:  The law clarifies that owner email addresses are NOT part of the official records that are open for inspection by the owners unless: (i) the subject owner has consented to receiving notices of association meetings via email; or (ii) the subject owner has expressly indicated that his or her email address can be shared with other owners.

*Key Takeaway:  The new laws include increased penalties (including potential criminal charges for board members or managers who knowingly, willfully, and repeatedly violate the record inspection requirements, or who intentionally defaces or destroys financial/accounting records), so it is extremely important for your board to review its official record practices and procedures to avoid potential sanctions.  As a reminder, the law allows a board to adopt reasonable rules regarding the frequency, time, location, notice, and manner of record inspections and copying. Accordingly, we recommend contacting your association counsel to discuss these new requirements, and to consider reviewing (or modifying) your current record inspection rules.

(B)  Board Meetings/Board Education:

(i)  Frequency and Content of Board Meeting Notice/Agenda: The board must now hold a meeting at least once each quarter during the calendar year. Further, at least four (4) times each year, the agenda for the board meeting must include the opportunity for owners to ask questions of the board, including the right to ask questions relating to the status of construction/repair projects and the revenues/expenditures of the association. Also, if the board meeting has an agenda item regarding the approval of a contract for goods or services, a copy of the contract must be included with the notice.

*Key Takeaway: While the law does not expressly require the board to provide a substantive answer to these owner questions, be sure that the notice of your board meetings (at least 4 times a year) contains an agenda item for “owner questions” or words of similar effect.

(ii)  Continuing Education for the Board:  Board Members are now required to satisfactorily complete at least four (4) hours of State-approved “new board member” education curriculum (check our website at kbrlegal.com for upcoming approved classes) that include instruction on a host of important topics, including milestone inspections, structural integrity reserve studies, elections, and financial literacy and transparency.  The educational certificate must be submitted within 1 year before or within 90 days after election or appointment to the Board, and is valid for 7-years (and does not need to be resubmitted as long as the directors serves without interruption during the 7-year period).  Any Board Member elected or appointed prior to July 1, 2024 will have unitl July 1, 2025 to comply with this 4-hour education requirement.

Additionally, within one year after submitting the 4-hour educational certificate (and annually thereafter), all Board Members must complete one (1) hour of continuing education by a State-approved provider that addresses legislative changes from the past year. This is in addition to the “new board member” educational requirement.

*Key Takeaway: Simply signing a statement that you have read the governing documents and will work to uphold them to the best of your ability, in and of itself, is no longer sufficient to comply with the Board Member certification requirement.  It is clear that the new changes are aimed at ensuring that Board Members cannot “bury their heads in the sand” regarding the legal requirements of operating condominiums and will be proactive in ensuring awareness of the requirements of serving their communities.

C. Prohibition on Board Members “Retaliating” against Owners

The new changes expressly prohibit associations from “retaliating” against an owner, who, in good faith, does any of the following actions:

(i) filed a complaint with a governmental agency against the association;
(ii) organized, encourages, or participated in a unit owner’s organization;
(iii) exercised his or her rights under the Florida Statutes (for instance, by submitting a record inspection request or submitting questions via certified mail to the association); and/or,
(iv) made public statements critical of the operation or management of the association.

Further, associations may not expend association funds to bring a lawsuit for defamation against an owner or any other claim against an owner based on the conduct described in paragraphs “(i)-(iv)” above.

*Key Takeaway:  There is no doubt that every community, from time to time, has to deal with at least one difficult owner.  However, the law makes clear that public criticism from owners is “part of the job” of serving on the Board, and an owner expressing his or her opinion (even in a not-so-nice fashion) on operational issues is not a valid basis for the Board to pursue enforcement action with the common funds of the association.  As such, prior to considering sending a “cease and desist” demand letter (or other enforcement measures) to an owner regarding his or her public comments or criticism, it is suggested to review the situation with legal counsel to evaluate the most appropriate option to pursue.

As noted, the topics discussed here are only a small part of the larger changes contained in the new laws for 2024 and beyond. In the coming weeks and months, we will offer additional information regarding other such changes in future editions of Legal Morsels. In the interim, should you have any questions regarding these or any other changes, feel welcome to check with your association attorney.

Kaye Bender Rembaum
Reach any office: 800-974-0680

 

Architectural Committees Formal Procedures, Published Standards, and Self Help by REMBAUM’S ASSOCIATION ROUNDUP

Architectural Committees Formal Procedures, Published Standards, and Self Help by REMBAUM’S ASSOCIATION ROUNDUP

  • Posted: Jun 19, 2024
  • By:
  • Comments: Comments Off on Architectural Committees Formal Procedures, Published Standards, and Self Help by REMBAUM’S ASSOCIATION ROUNDUP

Architectural Committees Formal Procedures, Published Standards, and Self Help

by REMBAUM’S ASSOCIATION ROUNDUP

Formal Procedures

There are strict legal requirements that a homeowners’ association’s (HOA) architectural review committee (ARC) must follow, most especially if the ARC intends to deny an owner’s request. As this author has witnessed countless times, it is likely that many ARCs do not conduct their activities in conformity with Florida law such that an ARC denial may not withstand judicial scrutiny. If these legal requirements are not followed, and the ARC denies the owner’s architectural request, then it would be quite easy for the owner to challenge the ARC’s decision and prevail. Upon prevailing, the owner would be entitled to their prevailing party attorney’s fees and costs, as well. It is so easy to avoid this outcome, yet so few associations take the time to do it right.

Pursuant to §720.303(2), Florida Statutes, a meeting of the ARC is required to be open and noticed in the same manner as a meeting of the association’s board of directors. Notice of the ARC meeting must be posted in a conspicuous place in the community at least 48 hours in advance of the meeting, and the meeting must be open for all members to attend. Further, pursuant to §720.303(2)(c)(3), Florida Statutes, members of the ARC are not permitted to vote by proxy or secret ballot. Also, bare bone minutes should be taken to create a record of ARC decisions—especially denials.

We often hear from many HOAs that the ARC does not meet openly and does not notice their meetings. This leaves decisions made by the ARC vulnerable to challenge. If the ARC denies an application but fails to do so at a properly noticed board meeting, the owner can challenge the denial, claiming that it is not valid because the ARC did not follow proper procedure. In such cases, the ARC’s denial of an application is not valid because the ARC failed to comply with the procedural requirements for the meeting even if an application violates the declaration or other association-adopted architectural standards. However, by complying with the provisions of Chapter 720, Florida Statutes, your HOA can work to avoid this debacle.

 

 

Published Standards

Often a top priority for an HOA is ensuring that homes in the community maintain a harmonious architectural scheme in conformity with community standards and guidelines, and because the ARC is at the frontline of owners’ alterations and improvements to their homes, it is instrumental in ensuring that the community standards and guidelines are met. Pursuant to §720.3035(1), Florida Statutes, an HOA, or the ARC, “has the authority to review and approve plans and specifications only to the extent that the authority is specifically stated or reasonably inferred as to location, size, type, or appearance in the declaration or other published guidelines and standards.” But not every owner request is typically addressed in the declaration or other published guidelines and standards. If not, then the association may not be in a good position for proper denial. Therefore, the ARC is only as effective as the objective guidelines and standards (set forth in the declaration and other published guidelines and standards) are inclusive. So, what is the association to do when the ARC receives an owner’s application for an alteration to the home, but the association does not have any architectural guidelines or standards regulating the requested alteration?

While not court tested yet, a possible solution for this conundrum is to include a “catch-all” provision in the declaration to proactively address those ARC applications where a member may request a modification that is not directly addressed by the governing documents. Such a “catch-all” provision stands for the proposition that, if such a request is made, then the existing state of the community is the applicable standard by which the ARC application is to be judged. For example, imagine if an owner applies to the ARC to paint the owner’s house pink. If there are no architectural guidelines or standards that address what color a house must be, and there are no pink houses in the community, then the existing state of the community may provide a lawful basis for the ARC to deny the request because there are no existing pink houses in the community.

The Trouble With Self-Help Provisions

What if an owner refuses to maintain the owner’s property, such as pressure washing a dirty roof, despite the HOA sending demand letters, levying a fine, and perhaps even suspending the owner’s right to use the HOA’s recreational facilities? What is the HOA’s next step? Is it time to file a lawsuit to compel compliance? Well, Chapter 718 (governing condominiums), Chapter 719 (governing cooperatives), and Chapter 720 (governing HOAs) of the Florida Statutes authorize the association to bring an action at law or in equity to enforce the provisions of the declaration against the owner. Additionally, many declarations contain “self-help” language that authorizes the association to cure a violation on behalf of the owner and even, at times, assess the owner for the costs of doing so. These “self-help” provisions generally contain permissive language, meaning the association, may, but is not obligated to, cure the violation. Sadly, in this instance the word “may” means “shall,” and to find out why, read on.

There is a general legal principal that, if a claimant has a remedy at law (e.g., the ability to recover money damages under a contract), then it lacks the legal basis to pursue a remedy in equity (e.g., an action for injunctive relief). Remember, too, that an association’s declaration is a contract. In the context of an association, the legal remedy would be exercising the “self-help” authority granted in the declaration. An equitable remedy would be bringing an action seeking an injunction to compel an owner to take action to comply with the declaration. Generally, a court will only award an equitable remedy when the legal remedy is unavailable, insufficient, or inadequate.

Assume that the association’s declaration contains both the permissive “self-help” remedy and the right to seek an injunction from the court. Accordingly, it would appear the association has a decision to make—go to court to seek the injunction or enter onto the owner’s property, cure the violation, and assess the costs of same to the owner. However, recent Florida case law affirmed a complication to what should be a simple decision. In two cases decided ten years apart, Alorda v. Sutton Place Homeowners Association, Inc., 82 So.3d 1077 (Fla. 2nd DCA 2012) and Mauriello v. Property Owners Association of Lake Parker Estates, Inc., 337 So.3d 484 (Fla. 2nd DCA 2022), Florida’s Second District Court of Appeal decided that an association did not have the right to seek an injunction to compel an owner to comply with the declaration if the declaration provided the association the authority, but not the obligation, to engage in “self-help” to remedy the violation. Expressed simply, this is because the legal contractually based “self-help” remedy must be employed before one can rely upon equitable remedy of an injunction. Therefore, even though the declaration provided for an optional remedy of “self-help,” it must be used before seeking the equitable remedy of an injunction.

In Alorda, the owners failed to provide the association with proof of insurance required by the declaration. Although the declaration allowed the association to obtain the required insurance, the association filed a complaint against the owners seeking injunctive relief, asking the court to enter a permanent mandatory injunction requiring the owners to obtain the requested insurance. The owners successfully argued that even though they violated the declaration, the equitable remedy of an injunction was not available because the association already had an adequate legal remedy—the “self-help” option of purchasing the required insurance and assessing them for same. The Court agreed.

In Mauriello, the declaration contained similar language as in Alorda but involved the issue of the owners failing to keep their lawn and landscaping in good condition as required by the declaration. The association filed a complaint seeking a mandatory injunction ordering the owners to keep their lawn and landscaping in a neat condition. However, the facts were complicated by the sale of the home in the middle of the suit when the new owners voluntarily brought the home into compliance with the declaration. The parties continued to fight over who was entitled to prevailing party attorney’s fees with the association arguing it was entitled to same because the voluntary compliance was only obtained after the association was forced to commence legal action. The owners, citing Alorda, argued that the complaint should have been dismissed at the onset because the association sought an equitable remedy (injunction) when a legal remedy was already available—the exercise of its “self-help” authority. The Court considered the award of attorney’s fees after the dismissal of the association’s action for an injunction. Ultimately, the Court held that the owners were the prevailing party as the association could not seek the injunction because it already had an adequate remedy at law.

Accordingly, if your association’s declaration contains a “self-help” provision, and your association desires to seek an injunction against an owner rather than pursue “self-help,” the board should discuss the issue in greater detail with the association’s legal counsel prior to proceeding. Also, remember that if the association wants to enforce architectural standards, then they must be published to the membership; and always remember to notice ARC meetings and take minutes.

 

Tags: , , ,
“Video Cameras—for Surveillance Purposes Only” by Kevin L. Edwards of Becker Lawyers

“Video Cameras—for Surveillance Purposes Only” by Kevin L. Edwards of Becker Lawyers

“Video Cameras—for Surveillance Purposes Only”

Many associations have installed video surveillance cameras within the community common areas as a means to provide security for their residents. However, good intentions often lead to unanticipated consequences. In fact the use of video cameras may expose an association to liability.

Generally, an association is not a guarantor or insurer of any person’s safety and is not obligated to provide “security” to its residents. However, once an association assumes a duty to provide security, it must do so in a non-negligent manner. This may very well be the case with installing “security cameras.” Florida courts have routinely held that if an association undertakes, or appears to undertake, the duty to provide security for its community, it must also take certain measures to prevent criminal activity from occurring on the premises.

For example, the court in Vazquez v. Lago Grande Homeowners Ass’n, 900 So. 2d 587 (Fla. 3d DCA 2004), ruled that the association had a duty to exercise reasonable care to guard its residents against crime or criminal activity because the association had undertaken the responsibility to provide such security. In this case the association was a gated community with a guardhouse staffed 24 hours a day. The developer marketed the complex on the basis of safety, and the association collected a specific part of its assessments to provide for security. A resident of the association moved into the community because it appeared safe and was gated. The resident had many visitors, including a former neighbor and the neighbor’s children. One day the  former neighbor’s estranged husband came into the community to pick up his children and got into an argument with the resident. Thereafter, the resident instructed the association’s security guards not to let the estranged husband into the community. Despite this, the security guards allowed the estranged husband to enter the community, and he shot the resident, shot and killed his ex-wife, and killed himself. The court found that the association had breached its duty to provide security because it continued to employ the security guards despite knowing that they routinely let unauthorized individuals into the community. Therefore, the association was found liable for the death of a visitor and  injury of a resident.

Thus, associations may wish to be careful not to label the video cameras as “security cameras” and instead let the owners know that the cameras are for surveillance purposes only. As previously mentioned, associations have no duty to provide security, and having “security cameras” will lead owners to believe that the association is providing security.

Regardless of whether the association uses video cameras, it is still liable for criminal conduct that is reasonably foreseeable. In Czerwinski v. Sunrise Point Condominium, 540 So. 2d 199 (Fla. 3rd DCA 1999), the court ruled that a landlord generally has no duty to ensure the safety of its tenants or to protect them from the criminal acts of third persons unless the criminal occurrence is reasonably foreseeable. The court further noted that the landlord’s knowledge of prior crimes, against both persons and property, is relevant to the issue of foreseeability, even if the prior criminal acts are lesser crimes than the one committed against the plaintiff.

Based on these cases, community associations have been held liable in tort for failure to take precautions against criminal activities committed against the owners and residents if those criminal activities are reasonably foreseeable; and in addition they have been held liable when they voluntarily provide security services but fail to provide them in a reasonable manner.

Thus, if the association is inclined to install video cameras, it must do so in a reasonably prudent manner and should make sure the cameras are always being maintained in good condition and repaired as needed.

Another issue with providing cameras in the community is whether or not the cameras record audio. Florida law (Section 934.03, FS) makes it illegal to intentionally intercept, attempt to intercept, or procure any other person to intercept any wire, electronic, or oral communication through the use of a device if one does not have the prior consent of all parties. Therefore, the association’s cameras must be limited to visual images. The process of taking and recording video is perfectly legal, and you do not need to notify the owners or post signs upon the property that the association is taking or recording video. There is no privacy issue as long as the cameras are not directed into a resident’s home or into a bathroom, shower, changing room, or other area where there is a reasonable expectation of privacy. There is no reasonable expectation of privacy for persons who use the common areas or come onto the association’s property (with the exception of bathrooms, showers, units, etc.).

Lastly, a surveillance camera’s video recordings are not part of the association’s official records. The association’s official records are limited to written records, and a video recording is not a written record. As such, video camera recordings are not open for review by the association’s membership. Moreover, an association is not legally obligated to store the recordings for any specific period of time. However, if stored for any amount of time, the association must be sure to preserve the video in case it may be used as evidence in a court proceeding. Video footage should, therefore, be made and stored in a location where it will not be tampered with or duplicated. The footage should be stored in a secure location with access limited to authorized personal. Any footage that is to be kept should be preserved in an original and unaltered version by saving it in a secure manner that is incapable of being edited.

 

Mr. Edwards manages the community association practice in Becker’s Sarasota office and serves as corporate counsel to hundreds of condominium, cooperative, mobile home, and homeowners’ associations located in Sarasota, Manatee, Charlotte, and Highlands Counties. Mr. Edwards is also one of only 190 attorneys statewide who is a board-certified specialist in condominium and planned development law.

In addition to his extensive experience as a community association lawyer, Mr. Edwards has trial and appellate experience in many areas of corporate and civil litigation, construction litigation, covenant enforcement, real estate, and foreclosure law.

For more information email kedwards@beckerlawyers.com, or visit www.beckerlawyers.com.

 

Tags: , ,