HOW DO YOU PROTECT YOUR RIGHT TO VOTE IF YOU LIVE OUT OF THE STATE OR COUNTRY? By Eric Glazer, Esq.

Posted: Mar 01, 2021
By: eric@condo-laws.com
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LOTS OF COMPLAINTS THIS YEAR ABOUT PEOPLE NOT GETTING THE CHANCE TO VOTE BECAUSE THE MAIL IS SLOW. HOW DO YOU PROTECT YOUR RIGHT TO VOTE IF YOU LIVE OUT OF THE STATE OR COUNTRY?

By Eric Glazer, Esq.

This year I am hearing the following complaint more than ever before: I live out of the state, or out of the country and I never received a ballot to vote in the election.

A little over a year ago I was involved in a case where many owners who lived in Finland did not get their ballots timely. Instead of having their vote not count, someone who lived in the condominium e-mailed them the ballot. These owners then took that ballot, placed it in a ballot envelope, placed that ballot envelope in another envelope and signed the exterior, and mailed it back to the association usually by overnight mail. Some owners didn’t bother to use the interior ballot envelope.

The association didn’t want to count these votes. The association also didn’t want to count the votes of owners who had their ballot envelopes dropped off by a neighbor, claiming that this was voting by proxy.

Read the attached opinion to find out how the arbitrator ruled. It makes for interesting reading. The bottom line…….if you’re out of town…..have the ballot e-mailed to you.

To read the case, click here.

About HOA & Condo Blog

Eric Glazer graduated from the University of Miami School of Law in 1992 after receiving a B.A. from NYU. He has practiced community association law for more than 2

decades and is the owner of Glazer and Sachs, P.A. a seven attorney law firm with offices in Fort Lauderdale and Orlando and satellite offices in Naples, Fort Myers and Tampa.

Since 2009, Eric has been the host of Condo Craze and HOAs, a weekly one hour radio show that airs at noon each Sunday on 850 WFTL.

See: www.condocrazeandhoas.com

He is the first attorney in the State of Florida that designed a course that certifies condominium residents as eligible to serve on a condominium Board of Directors and has now certified more than 10,000 Floridians all across the state. He is certified as a Circuit Court Mediator by The Florida Supreme Court and has mediated dozens of disputes between associations and unit owners. Eric also devotes significant time to advancing legislation in the best interest of Florida community association members.

Tags: Condo and HOA Laws, Elections, Management News

A newly filed bill by Senator Jason Pizzo, SB 1490, could create a significant change in terms of an association’s ability to invest the community’s operating and reserve funds in depositories other than a traditional bank or savings and loan.

Posted: Feb 26, 2021
By: Becker Lawyers
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A newly filed bill by Senator Jason Pizzo, SB 1490, could create a significant change in terms of an association’s ability to invest the community’s operating and reserve funds in depositories other than a traditional bank or savings and loan.

For years there have been significant legal constraints on a condominium association’s ability to use reserve funds. In addition to the statutory requirement to obtain membership approval for non-designated reserve usage, the prevailing school of thought was that association funds could not be invested since investments can and do fail.

A newly filed bill by Senator Jason Pizzo, SB 1490, could create a significant change in terms of an association’s ability to invest the community’s operating and reserve funds in depositories other than a traditional bank or savings and loan.

The bill provides as follows:

“Unless otherwise prohibited in the declaration, and in accordance with s. 718.112(2)(f), an association, including a multicondominium association, may invest any funds in one or any combination of investment products described in this subsection.”

If this bill passes and an association invests funds in any type of investment product other than a depository account, the association must meet all of the following requirements:

The board shall annually develop and adopt a written investment policy statement and select an investment adviser who is registered under s. 517.12, F.S. and who is not related by affinity or consanguinity to any board member or unit owner. Any investment fees and commissions may be paid from the invested reserve funds or operating funds.
The investment adviser selected by the board shall invest any funds not deposited into a depository account in compliance with the prudent investor rule in s. 518.11, F.S. It is important to note that the statutory prudent investor rule is a test of conduct and not resulting performance. Under this statute, no specific investment or course of action is, taken alone, considered prudent or imprudent. Instead, the investment adviser is deemed to be acting as a fiduciary and he or she may invest in every kind of property and type of investment, subject to that statute. The fiduciary’s investment decisions are evaluated on the basis of whether he or she exercised reasonable business judgment regarding the anticipated effect on the investment portfolio as a whole under the facts and circumstances prevailing at the time of the decision or action. Although the proposed statute requires that funds invested be subject to insurance under the Securities Investor Protection Corporation, it is important to note that this insurance is only there if the brokerage firm fails, not if the investment turns out to be ill-advised and loses the association’s money.
The investment adviser shall act as a fiduciary to the association in compliance with the standards set forth in the Employee Retirement Income Security Act of 1974 at 29 U.S.C. s. 1104(a)(1)(A)-(C).
At least once each calendar year, the association shall provide the investment adviser with the association’s investment policy statement, the most recent reserve study report or a good faith estimate disclosing the annual amount of reserve funds which would be necessary for the association to fully fund reserves for each reserve item, and the financial reports.
The investment adviser shall annually review these documents and provide the association with a portfolio allocation model that is suitably structured to match projected reserve fund and liability liquidity requirements. There must be at least thirty-six (36) months of projected reserves in cash or cash equivalents available to the association at all times.
Portfolios managed by the investment adviser may contain any type of investment necessary to meet the objectives in the investment policy statement; however, portfolios may not contain stocks, securities, or other obligations that the State Board of Administration is prohibited from investing in under ss. 215.471, 215.4725, and 215.473, F.S. or that state agencies are prohibited from investing in under s. 215.472.

Lastly, the bill would exempt registered investment advisors from having their bids subjected to the competitive bidding requirements found in Section 718.3026, F.S. The companion bill to SB 1490 is HB 1005 (Killebrew/Fine).

As more associations change their old habits and begin to fund reserves, the allure of more aggressive investment vehicles for these funds, which can be substantial amounts, is undeniable. However, the risk is also undeniable. As such, if this bill becomes law and the investment of reserves becomes available, boards are strongly encouraged to take an extremely cautious, measured approach with reserves.

While investment of your association’s operating and reserve funds might result in a substantially better return than a savings account, you might also see significant losses. The investment of association funds must be done with careful consideration of the demographic in your community, the age of your buildings and facilities, the required liquidity of your funds and, most importantly, the sensitivities and risk tolerance of your membership all taken into account. If your members fuss about your board’s landscaping decisions imagine the potential fallout if you make the wrong investment decisions!

Very truly yours,

Donna DiMaggio Berger, Founder & Executive Director
Community Association Leadership Lobby

Tags: Condo and HOA, Legal and Lobbing, Management News, Reserves

Keeping Politics Out of Your Community Association by Becker

Posted: Feb 22, 2021
By: Becker Lawyers
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by Becker / Donna DiMaggio Berger | 09.15.2020

Not surprisingly, the chatter about whether or not political signs should be permitted in private residential communities has increased as we draw closer to the elections in November.

Let’s first discuss whether or not an owner in a Florida HOA has the “right” to install signs. The short answer is “no” with one exception. FL homeowners’ associations can prohibit all types of signs other than one security sign located ten or fewer feet from the entrance to the home. All other signs including “For Sale” signs, signs installed by vendors doing work at a home, seasonal and congratulatory greetings and political signage may be prohibited IF the board determines that doing so is in the best interests of the community. Naturally, if the members disagree with their board’s decisions they may decide not to re-elect that board in the future.

Some owner signs enhance a community’s charm including seasonal greetings, and in the time of Covid, the congratulatory yard signs letting neighbors know of a child’s accomplishments when a traditional party could not take place. However, other signs cause concern. Many boards dislike the posting of “For Sale” signs as an abundance of those signs may send the wrong signal to both residents and potential purchasers.

And, it goes without saying that political signs these days are capable of igniting deep fractions inside residential communities. One school of thought is that some people’s sensitivities should not dictate others’ ability to promote their political candidate of choice.

The other school of thought associated with political signs is that they do not belong inside a private residential community where they can do more harm than good. The advocates for keeping politics out of communities believe that one’s political ideology is more productively expressed through monetary donations, volunteering for a campaign and/or waging war on social media sites to one’s heart’s content.

Some owners maintain that their constitutional rights are being trampled if their association denies them the right to install a political sign or political flag. In fact, you need a state actor to be the entity violating one’s First Amendment rights in order to mount a sound constitutional argument. In Florida, condos and HOAs have not been found to be state actors so prohibiting political signs and political flags is possible either through a recorded covenant or a board rule if the board has rule-making authority under the governing documents. In the case of Quail Creek Prop. Owners Association, Inc. v. Hunter, 538 So. 2d 1288, 1289 (Fla. 2nd DCA 1989), the Second District Court of Appeal found that an association’s sign restriction was not unconstitutional as “neither the recording of the protective covenant in the public records, nor the possible enforcement of the covenant in the courts of the state, constitutes sufficient “state action” to render the parties’ purely private contracts relating to the ownership of real property unconstitutional.”

Some boards choose to regulate the number and size of political signs and political flags as well as how long they can remain in place. However, when it comes to wording on those signs and what may or may not be considered offensive that requires a more in-depth analysis which some boards understandably wish to avoid. After much debate, many communities simply decide that political signs are best left outside their communities.

The place you call home should be a respite from the world and respites often don’t involve contentious political signage next door.

Tags: Condo and HOA Laws, Management News

An Introduction to HB 969: Florida’s Proposed Data Privacy Law by Becker

Posted: Feb 18, 2021
By: Becker Lawyers
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Jack S. Kallus | Becker Lawyers
Client Advisory

Yesterday, House Bill 969 titled Consumer Data Privacy was introduced as a potential new law to protect the personal data of Florida consumers. Governor Ron DeSantis’ stated goal for the bill is to “safeguard the privacy and security of consumer data.”

The bill is intended to give consumers more control over the personal information that businesses routinely collect and may even sell to third parties. Many of the basic rights under the new bill mirror that of the California Consumer Privacy Act passed in 2018 (CCPA). Like the CCPA, HB 969 attempts to secure new privacy rights for Florida consumers. If you are a Florida resident, you may ask businesses to disclose what personal information they have about you and what they do with that information as well as the right to request a business delete and to not sell your personal information. Consumers will also have the right to be notified, before or at the point businesses collect personal information, about the types of personal information being collected and what the business may do with that information. Generally, businesses will not be able to discriminate against you for exercising your rights under HB 969.

As stated above, the consumer will be provided the right to request that businesses disclose what personal information they have collected, used, shared, or sold about the consumer, and why they collected, used, shared, or sold that information. Businesses must provide a consumer with this information for the twelve-month period preceding the request and must provide the information free of charge.

If passed, HB 969 would require businesses to inform consumers about certain information being collected at the time of collection. Businesses would be required to inform consumers about:(i) categories of personal information collected; (ii) specific pieces of personal information collected; (iii) sources from which the business collected personal information; (iv) purposes for which the business uses the personal information; (v) categories of third parties with whom the business shares the personal information; and (vi) categories of information that the business sells or discloses to third parties.

If the business sells consumers’ personal information, then the information at collection must include a “Do Not Sell or Share My Personal Information” link. The information of consumer rights must also contain a link to the business’s privacy policy, where consumers can get a description of the business’s privacy practices and of their privacy rights.

A Florida consumer may also request that businesses stop selling their personal information (“opt-out”). With some exceptions, businesses cannot sell your personal information after they receive an opt-out request unless later provide authorization allowing them to do so again. Businesses must respect the consumer’s decision to opt-out for at least twelve months before requesting that the consumer authorize the sale of the consumer’s personal information. Businesses can offer consumers financial incentives in exchange for collecting, keeping, or selling personal information. However, businesses cannot use financial incentive practices that are unjust, unreasonable, coercive, or usurious in nature.

After discovering what personal information is collected, used, shared or sold a consumer may request that a business delete the personal information collected and to tell their service providers to do the same. However, there are many exceptions that allow businesses to keep personal information. Businesses must respond to a request to delete within 45 calendar days and can only extend that deadline once by another 30 days (75 days total) if they notify the consumer.

Consumers may be worried about retaliation for exercising rights under HB 969. However, the bill prohibits businesses from denying goods or services, charging a different price, or providing a different level or quality of goods or services just because a consumer exercised rights under the proposed law. Businesses also cannot make the consumer waive these rights, and any such contract provision is unenforceable.

What happens if a business violates HB 969? What rights are given to the consumer? Much like the CCPA, HB 969 only provides a private cause of action against a business if there is a data breach, and even then, only under limited circumstances. A consumer can sue a business if their nonencrypted and nonredacted personal information was stolen in a data breach as a result of the business’s failure to maintain reasonable security procedures and practices to protect it. If this happens, the consumer can sue for the amount of monetary damages actually suffered from the breach or up to $750 per incident. An important aspect of the proposed law is that it does not provide for prevailing party legal fees.

For all other violations of HB 969, only the Department of Legal Affairs (“Department”) can file an action. If the Department has reason to believe that any business is in violation and that proceedings would be in the public interest, the Department may bring an action against such business and may seek a civil penalty of not more than $2,500 for each unintentional violation or $7,500 for each intentional violation. Such fines may be tripled if the violation involves a consumer who is sixteen years of age or younger. A business may be found to be in violation if it fails to cure any alleged violation within 30 days after being notified in writing by the Department of the alleged noncompliance.

The bill also contains other provisions outlining who is protected under the bill, what is considered personal information, data retention and biometric information rules and procedures for businesses to follow. We will publish additional articles exploring these provisions and expand on the information addressed in this article. In addition, we will explore the importance of Florida enacting a well-balanced privacy law which does not act as an anchor for businesses and appropriately protects the rights of Florida consumers.

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Tags: Condo and HOA, Condo and HOA Laws, Management News

A group of Tampa Bay lawmakers have filed a series of bills to support tenants facing eviction during the COVID-19 pandemic.

Posted: Feb 01, 2021
By: HEIST, WEISSE & WOLK PA
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A group of Tampa Bay lawmakers have filed a series of bills to support tenants facing eviction during the COVID-19 pandemic.

Sen. Darryl Rouson filed SB 412 and SB 926 in an effort to address eviction records and housing insecurity.

The Residential Tenancies bill, SB 412, would help address housing insecurity by referring matters of eviction to mediation in circuit courts with established mediation programs. It would also remove the requirement for the tenant to deposit money owed during eviction proceedings into the court registry.

“Our state should be utilizing mediation to discuss options for tenants and landlords prior to the eviction proceeding,” Rouson said at a press conference Monday.

Rep. Fentrice Driskell filed the Senate’s companion bill HB 481.

The related bill, Eviction Records (SB 926), would allow for defendants to move to seal their eviction record if the court finds they were adversely affected by COVID-19. The bill would apply to eviction complaints filed after March 1, 2020. “What we’re really trying to do here, to put it very plainly, is to help level the playing field and make sure that we can slow it down a bit so that we can hear the facts,” Driskell said.

The goal: to prevent future landlords from refusing to rent to tenants adversely impacted by COVID-19.

“Nothing is more sacred than adequate shelter, safe and secure housing, particularly during a health crisis,” Rouson said. “We allow records to be expunged and sealed for criminal offenses. Why not for the unfortunate situation of an eviction so that people can truly get a clean, start.”

Rep. Dianne Hart filed the companion bill for eviction records, HB 657.

During Monday’s press conference, Rouson emphasized that nearly 180 families a day are being evicted from their homes in Florida. “Even with a moratorium in place many people were not spared from the process of losing their homes,” Hart said. “Even though these circumstances were not within anyone’s control, once you have an eviction on your record, it is exceedingly difficult to find another landlord willing to give you an opportunity to rent.”

“This is not a partisan issue. The landlord does not ask your party affiliation when he begins an eviction process,” Rouson said. “No one likes going through an eviction process, why not have mediation, to discuss options between landlords and tenants when people are unable to pay and afford the rent.”

Eviction-related bills spurred by the economic impact of the COVID-19 pandemic have been coming in hot to the Florida legislature.

In early January, Sen. Shevrin Jones filed a bill, SB 576, which would prohibit landlords from refusing to enter into a rental agreement with a prospective tenant solely based on an eviction that occurred during the pandemic.

Back in December, the passage of the $900 billion federal relief package allocated about $1.4 billion in rental relief assistance to Florida.

But, without protection from the state, which let its eviction moratorium expire in September, more tenants may face evictions come March 31 — a deadline extended by the CDC.

A National Low Income Housing Coalition report found that Florida has the second highest eviction risk rate across the country. The report found that 15.6% of Florida renters were at risk of eviction in the two months following December, compared to a national risk of eviction rate of 8.4%.

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Tags: Landlord & Tenant Issues, Law and Legal(Primary Category), Management News

SUPPOSE I TOLD YOU THAT ONE DAY YOU MAY NOT OWN YOUR CONDO OR CO-OP EVEN THOUGH YOU PAID IT OFF IN FULL.

Posted: Feb 01, 2021
By: eric@condo-laws.com
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SUPPOSE I TOLD YOU THAT ONE DAY YOU MAY NOT OWN YOUR CONDO OR CO-OP EVEN THOUGH YOU PAID IT OFF IN FULL.

by Eric Glazer / Glazer & Sachs / Condo Craze & HOA’s

In about 25 years a crisis is coming to the condo and co-op world that will be shocking to say the least. Here is the problem. Many of you think that by purchasing your condo or co-op, you can live there forever, as long as the mortgage, taxes and assessments are paid. You may be wrong. Very wrong.

Florida condo and co-op law basically say: Leaseholds.—

(1) A condominium or co-op may be created on lands held under lease or may include recreational facilities or other common elements or commonly used facilities on a leasehold if, on the date the first unit is conveyed by the developer to a bona fide purchaser, the lease has an unexpired term of at least 50 years.

That’s right your condo could be built on land that you don’t own. Land that you are leasing and someone else owns and who is simply leasing the underlying land to the condo association for 99 years. After the 99 years are over, the lease may require that all property built on the land (meaning all of the condo units) revert back to and becomes owned by the owner of the land. In other words, after 99 years, you lose your home.

Many of these 99 year leases began in the 1960s. So, in about 40 years, lots of buildings will be faced with this fiasco if they don’t do something about it before then. As the date gets closer to the expiration of the 99 year lease term, the value of the unit keeps going down. How can you sell a unit to someone if in 5 years it reverts back to the underlying land owner? That unit is valueless.

It’s amazing how many people have no idea that this is going to happen. How many people thought that once they paid off their mortgage, they were safe and secure. They were wrong. One day, the underlying land owner will be able to make you purchase the unit all over again if you want to stay. Or, simply kick everyone out and build something new or sell to a new developer.

The law should never have allowed condos or co-ops to be built on leased land. But, this is Florida – the land where developers call the shots.

If you live in a community with such a land lease, you want to see if you can buy it out and obtain a deed to the land. That will avoid the potential disaster that awaits. The Florida Legislature better start thinking about this coming crisis and not wait for it to creep up on everyone.

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Tags: Condo and HOA, Condo and HOA Laws, Management News

ACTION ALERT: The insurance industry is backing another bill that is trying to take away your rights and significantly reduce your coverage for roof damage.

Posted: Jan 30, 2021
By: Cohen Law Firm
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The insurance industry is backing another bill that is trying to take away your rights and significantly reduce your coverage for roof damage.

The insurance industry is backing another bill that is trying to take away your rights and significantly reduce your coverage for roof damage. If passed, Senate Bill 76 could potentially cost Floridian homeowners millions of dollars.

We need homeowners and business owners in Tallahassee on Tuesday, February 2nd to be heard and oppose this bill.

Here are some highlights of the bill:

Insurance companies can limit coverage for roofs more than 10 years old based on a “roof reimbursement schedule.” This could result in significant out of pocket expenses for homeowners.
The roof reimbursement schedule limits coverage to a percentage of the amount to repair or replace the roof.

Coverage can be limited to:

70% for metal roofs
40% for concrete tile and clay tile roofs
40% for wood shake and wood shingle roofs
25% for all other roof types, including asphalt shingle roofs

Timeframe to report property damage claims, including Hurricanes, is reduced to 2 years!
Policyholders must send their insurer a Notice of Intent to file a lawsuit prior suing for recovery of insurance proceeds.
Notice of Intent must include: the amount of damages sought, a detailed estimate for repairs, the actions of the insurer that gave rise to the action, and the amount of attorney’s fees incurred by the insured policyholder.
Notice of Intent must be served at least 60 days before filing a lawsuit. Given the 90 day period insurers already have to adjust claims, adding 60 days means generally waiting 5 months from the date the claim was reported before being able to sue for failure to adequately pay the claim.
Limits policyholders’ ability to recover attorney’s fees in a lawsuit against their insurer, a right that has been guaranteed under Florida law for decades.

READ the BILL

Insurance companies are making more in profits than ever before (read about the CEO earning $27 million here: https://www.palmbeachpost.com/news/state–regional/rate-hike-greedy-insurance-ceo-paid-27m-times-citizens-chief/DBgq9ulJnA3GHE0Ap6e8oJ/?template=ampart). Their profits are your losses!

We need every roofing company to bring a homeowner to the Tallahassee Civic Center on Tuesday, February 2, 2021, to testify against bad legislation backed by insurance companies. Please call your representative and tell them you oppose Senate Bill 76 because it is bad for property owners, insurance consumers and contractors. This could affect your home and your livelihood!

Homeowners, do not let the insurance industry take away your rights with Senate Bill 76. Your voice counts! Call or email your representative today!

At Cohen Law Group, It’s About Justice!

It’s more than a slogan, it’s our firm’s mantra. We are zealous in protecting your rights. We offer 24-hour availability through our answering service. Call us today.

(407) 478-4878

Tags: Insurance, Law and Legal, Legal and Lobbing, Management News

Discriminatory Practices, Is Your Association Prepared? by Rembaum’s Association Roundup

Posted: Jan 28, 2021
By: KBR Legal
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Discriminatory Practices, Is Your Association Prepared?

by Rembaum’s Association Roundup presented by: Kaye Bender Rembaum

On September 26, 2016, Rembaum’s Association Round Up published an extremely important article regarding a community association’s potential liability when allegations by one member accuse another member of a discriminatory practice. (Click HERE to view the 2016 article). On September 13, 2016, HUD made clear that a housing provider is responsible for discriminatory practices that may take place. In its Rules and Regulations set out in Chapter 24, Part 100 of the Code of Federal Regulations, effective which further interprets the Federal Fair Housing Act, HUD explained that it believes that, “we are long past the time when racial harassment is a tolerable price for integrated housing; a housing provider is responsible for maintaining its properties free from all discrimination prohibited by the Act.” Those regulations became effective on October 14, 2016.

In this author’s opinion, HUD went way too far by mandating that housing providers act as the investigator, police, judge and jury in cases of alleged discrimination. After all, there are countless Fair Housing offices in each state where complaints can be filed and are actively investigated, often times with only a bare inference. Community association board members are volunteers with no required special training other than to be “certified” within 90 days of taking office, which certification can be met by signing a one-page form acknowledging duties or taking a two-hour class. Neither the individual board members nor the community as a whole should have to bear liability for its board of directors not taking action in a neighbor to neighbor dispute. Afterall, the court room is the proper setting where such matters should be resolved.

In the January 25, 2021, edition of the Palm Beach Post reporter Mike Diamond Special to Palm Beach Post USA TODAY NETWORK, authored an article titled “Judge Won’t Dismiss HOA Religious Bias Suit.” In the article the judge was quoted as follows: ““the La-Grassos [the plaintiff’s] have plausibly alleged a claim against the association for its failure to respond to or seek to control Ms. Tannenholz’s allegedly discriminatory conduct.” Amongst other things, the allegation is that Tannenholz’s told La-Grassos, “you do not belong in a community that is 80% Jewish and that La-Grassos should “move the F… out and go to a white supremist community.”

But for HUD’s position that a housing provider can have liability for discriminatory practices of the residents it is unlikely the association would be a defendant in this lawsuit. By forcing housing providers, such as Florida’s countless condominium, homeowners’ and cooperative associations, to interject themselves into what should be private disputes amongst neighbors, HUD is providing the deepest of pockets to the plaintiff’s attorneys. At the end of the day, it is just another reason to sue the innocent community association to create liability where there should not be any in the first place.

Practical Tip no. 1: In light of this lurking danger, be sure to check in with your association’s insurance agent to be sure the association has proper liability coverage for accusations of discrimination.

Practical Tip no. 2: Also, given that there can even be personal liability in such actions, board members would be wise to speak to their own personal insurance agents too… Afterall you never know when that umbrella policy may come in handy. Remember this, too: if one board member has knowledge about an event, then such knowledge can be imputed to all board members as if they are all similarly aware. In other words, when one board member knows, then the association itself is on notice.

Practical Tip no. 3: Consider formally adopting a “no discrimination” type of rule. It could be as simple as “discrimination of any kind will not be tolerated”.

Practical Tip no. 4: If your association is made aware of an alleged discriminatory practice, then a written record of such allegation and the association’s efforts to remedy the situation should be made.

Be sure to discuss each and every alleged discriminatory practice brought to the attention of the board and/or its manager with the association’s attorney to obtain the proper guidance needed.

Jeffrey Rembaum, Esq.

Board Certified Specialist in Condominium and Planned Development Law and a community association lawyer with the law firm Kaye Bender Rembaum, in its Palm Beach Gardens office.

His law practice consists of representing condominium, homeowners, and cooperative associations, developers and unit owners throughout Florida.

He can be reached by email at JRembaum@KBRLegal.com or by calling 561-241-4462.

Tags: Board of Directors, Condo and HOA, Condo and HOA Laws, Management News

MANY OF YOU LIVE IN COMMUNITIES THAT ARE GOVERNED BY TWO ASSOCIATIONS. MASTER V. SUB – PART TWO

Posted: Jan 27, 2021
By: eric@condo-laws.com
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MANY OF YOU LIVE IN COMMUNITIES THAT ARE GOVERNED BY TWO ASSOCIATIONS.

MASTER V. SUB – PART TWO

By Eric Glazer, Esq.

Today we continue with a very interesting case that was just decided by Florida’s Second District Court of Appeal. RIVIERA-FORT MYERS MASTER ASSOCIATION, INC., v. GFH INVESTMENTS, LLC. 2020 WL 7767856. To simplify, in a mixed-use community, meaning a community made up of commercial property and residential housing, the Master Association adopted seven amendments to the community’s master declaration. The court referred to the sub associations as the “Liner Buildings.” In general terms, the amendments addressed the Master Association’s authority to approve proposed uses of the property located in the sub communities, (Liner Buildings) increased assessments on them, and imposed additional restrictions on the Liner’s tenants.

Again, I write about the case because it is a great learning case about the relationship between a Master and a Sub and about community living in general.

CAN THE MASTER ASSOCIATION MAKE RULES AND REGULATIONS GOVERNING PETS THAT ARE DIFFERENT THAN THE SUBS?

We agree with the Master association’s assertion that these restrictions on number, size, type,and breed of pets are reasonable, as are the requirements that owners leash and pick up after their animals. The Liner Buildings are in relatively close proximity to the condominium buildings, and it is inevitable that dogs kept in the Liner Buildings will need to go outside and use the common areas of the property, and they can therefore be regulated to a reasonable degree to protect the community members’ mutual enjoyment of the common areas. Cf. Majestic View Condo. Ass’n v. Bolotin, 429 So. 2d 438, 440 (Fla. 4th DCA 1983) (implying in dicta that such pet restrictions are reasonable in the condominium setting). As such, the circuit court erred in enjoining the enforcement of this amendment.

WHAT ABOUT PARKING RULES?

In this case, the Master Association made a rule that said the owners in the sub associations cannot park in common areas and can only park in designated parking spaces assigned to that community. In upholding the decision of the Master Association, the court relied on Juno By The Sea North Condominium Ass’n (The Towers), Inc. v. Manfredonia, 397 So. 2d 297 (Fla. 4^th DCA 1980), a seventy-unit condominium building had three parking lots: a covered lot with twenty spaces that had been designated in the master declaration as limited common elements and sold to individual unit owners who had exclusive use of those spaces; a second lot that had been designated as a common element with fifty spaces that were unassigned; and a third lot across the street with additional auxiliary parking. Id. at 301. Due to congestion, the condominium association assigned the fifty spaces in the common area lot to the fifty units that did not own exclusive spaces in the covered lot. Id. The owners of the covered spaces sued, contending that the association could not prohibit their use of the common area lot. The Fourth District disagreed. To the contrary, the court held that the limitation on use of the common area lot passed the test of reasonableness because the association’s plan fairly ensured that each unit had access to parking. Id. at 302–05. Thus, even though the fifty-space lot remained a common area, its use reasonably could be restricted to certain unit owners.

CAN THE MASTER ASSOCIATION AMEND THE GOVERNING DOCS TO IN EFFECT CONTROL THE LEASING PROVISIONS IN THE SUB COMMUNITY?

Here is what the court said:

The Liner Buildings, although separate structures, are part of a community for which courts have granted “a greater degree of control over and limitation upon the rights of the individual owner than might be tolerated given more traditional forms of property ownership.” Seagate Condo. Ass’n v. Duffy, 330 So. 2d 484, 486 (Fla. 4th DCA 1976), approved sub nom. Woodside Vill. Condo. Ass’n v. Jahren, 806 So. 2d 452 (Fla. 2002). Indeed, the court in Seagate held that even an absolute prohibition against the leasing of units in a condominium complex can be a reasonable use limitation: Given the unique problems of condominium living in general and the special problems endemic to a tourist oriented community in South Florida in particular, appellant’s avowed objective—to inhibit transiency and to impart a certain degree of continuity of residence and a residential character to their community—is, we believe, a reasonable one, achieved in a not unreasonable manner by means of the restrictive provision in question. The attainment of this community goal outweighs the social value of retaining for the individual unit owner the absolutely unqualified right to dispose of his property in any way and for such duration or purpose as he alone so desires. Id. at 486–87. We reach the same conclusion here and conclude that the amendment adopting section 10.12 is reasonable and enforceable.

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