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KBR Attorney Allison L. Hertz returns to answer some of the audience questions from her CE credit Elections webinar. This video is for informational purposes only and is not to be considered as legal advice.
Tags: Condo and HOA Laws, Elections, Events Meetings and Courses
A home or office building is the most important purchase most of us will make during our lifetime. Most of us buy insurance coverage – windstorm, liability, flood, homeowners, and business interruption – to protect our homes and businesses. Yet, today’s insurance policies are lengthy, complex contracts full of exceptions, exclusions, deductibles, and conditions that make the policy difficult to read, and sometimes even more difficult to recover from for your damage. When you call the Maus Law Firm, a top Fort Lauderdale property damage lawyer will handle property damage claims.
You have four options if you disagree with the amount the insurance company is offering you for your damage:
Most insurance companies create entire TV marketing campaigns designed to say that you’re part of the insurance company’s “family”. However, the reality of the insurance business is that insurance companies exist to make money. That means that insurance company needs to minimize the amount of claims it pays out; meanwhile, maximizing the premiums that it collects.
When an insurance company doesn’t offer to pay you the full (or fair) amount of your property damage, you need to be prepared to fight. While many homeowners are hesitant to go to court – fearful of a lengthy or expensive legal battle against a big-name insurer – settling for less than your claim was worth can end up costing you more in the long-term. The repairs your home needed can continue to pile up, lowering the value of your property. Hiring the best Fort Lauderdale property damage lawyer you can find will save you the headache later.
When making insurance claims for property damage, it is helpful to know how the process typically unfolds. Our Fort Lauderdale property damage lawyer knows that while there are many potential scenarios, the property owner should first understand their own obligations under the insurance policy. Second, the property owner should understand the reasons for the insurance company’s denial of their claim.
Any property insurance policy will place some obligations on the property owner when they make a claim for property loss. These obligations will differ from policy to policy, but the following are several of the most common requirements.
Unfortunately, even if you have paid your homeowners’ insurance premiums on time for decades, this does not guarantee that your insurance company will treat you fairly if you need to file a claim. Bad-faith insurance claim denials are common, and homeowners can run into various other issues with their property damage claims as well. As a result, if you need to file a homeowners’ insurance claim, it is a good idea to hire an attorney. Here are just a few examples of the ways an experienced Fort Lauderdale property damage lawyer like Joseph Maus can help:
Before you devote the time, energy and resources to pursuing a property damage claim, you first need to determine if your claim is covered. An experienced Fort Lauderdale property damage lawyer will be able to review your homeowners’ insurance policy and assess the damage to your home in order to determine if your insurance company is liable.
If you have a claim, your attorney will be able to deal with your insurance company on your behalf until your claim has been fully and finally resolved. This important for a few different reasons: (i) Florida’s insurance laws are complicated, and asserting your legal rights can be difficult; (ii) in some cases, there will be a legitimate dispute as to whether a homeowners’ insurance policy applies; and, (iii) successfully pursuing a homeowners’ insurance claim for significant property damage takes time, and you will need someone to handle your claim while you focus on work and your day-to-day life.
As we mentioned above, insurance companies routinely deny policyholders’ property damage claims in bad faith. If your insurance company is not handling your claim appropriately, you may need your attorney to take legal action on your behalf. If you have a claim for insurance bad faith, then you can seek compensation above and beyond the amount of coverage to which you are entitled under your policy.
When can you file a property damage claim? As a homeowner, it is important to know when you are entitled to insurance coverage and when you may need to come out of pocket to cover repairs to your home. With this in mind, here are some examples of common property damage claims in Fort Lauderdale:
SFPMA & Members are ready to Handle Storm Damage & Claims for Condo and HOA Properties!This is a Division of SFPMA – http://FloridaAdjusting.com
The purchase and use of electric vehicles (EVs) are forecasted to grow exponentially in the next decade. To accommodate the need for new facilities associated with EVs, Florida law has required condominium associations to accommodate owner’s requests for EV charging stations.
While gasoline powered vehicles are still dominant on Florida’s roads, the ever-growing presence of electric vehicles cannot be ignored. The number of electric vehicles on our highways and streets continue to climb as they become more and more affordable. As consumers continue to embrace a greener lifestyle, Florida’s lawmakers have paved the way for condominium unit owners’ need to have access to electric vehicle charging stations. Effective July 1, 2018, new legislation, section 718.113(8) of the Florida Statutes, became effective which facilitates a unit owner’s ability to install and use an electric vehicle charging station within the unit owner’s limited common element parking space.
This new legislation prohibits the condominium association’s board of directors and a declaration of condominium provision or other restrictive covenants from prohibiting (or being enforced to prohibit) any unit owner from installing an electric vehicle charging station within the boundaries of the unit owner’s limited common element parking space, subject to certain conditions as laid out in this new legislation.
It is important to note that the right of installation of an electric vehicle charging station is ONLY applicable to the “limited common element” parking space and does not apply to a “common element” parking space. There is an important difference between a common element and a limited common element parking space. While all unit owners own an undivided interest in both, the limited common element parking space vests an individual use right to the owners of the unit to which the limited common element is appurtenant (connected to). Therefore, associations may prohibit the installation of electronic vehicle charging stations within the common elements or other portions of the condominium property that are maintained for the general use and benefit of all unit owners, but not as applied to a limited common element parking space, subject to the limitations and conditions of the legislation.
Thus, section 718.113(8) of the Florida Statutes, provides that, in considering a unit owner’s request to install an electric vehicle charging station, the association first must determine whether the charging station is to be installed within the boundaries of the requesting unit owner’s limited common element parking space. Whether a parking space is a limited common element is determined by the provisions of the declaration of condominium designating the parking space for the exclusive use and benefit of the owners of a specific unit.
1) The installation cannot cause irreparable damage to the condominium property.
2) The unit owner is responsible for the costs of installation, operation, insurance, maintenance, repair, and removal of the charging station.
3) The electricity for the electric vehicle charging station must be separately metered and payable by the unit owner.
All of the above costs, if left unpaid by a unit owner, are enforceable by the association as any other assessment due pursuant to section 718.116, Florida Statutes, meaning if left unpaid their condominium unit can be foreclosed.
1) comply with bona fide safety requirements, consistent with applicable building codes or recognized safety standards, for the protection of persons and property;
2) comply with reasonable architectural standards adopted by the association that govern the dimensions, placement, or external appearance of the electric vehicle charging station, provided that such standards may not prohibit the installation of such charging station or substantially increase the cost thereof;
3) engage the services of a licensed and registered electrical contractor or engineer familiar with the installation and core requirements of an electric vehicle charging station;
4) provide a certificate of insurance naming the association as an additional insured on the owner’s insurance policy for any claim related to the installation, maintenance, or use of the electric vehicle charging station within 14 days after receiving the association’s approval to install such charging station; and
5) reimburse the association for the actual cost of any increased insurance premium amount attributable to the electric vehicle charging station within 14 days after receiving the association’s insurance premium invoice.
A unit owner’s “right” to install a charging stations is not, however, without limits. An association may require that the unit owner comply with all safety requirements, applicable building codes or recognized safety standards for the protection of the association property and its members. An association may also require the unit owner to engage the services of a licensed and registered electrical contractor or an engineer that is familiar with the installation and requirements of an electric vehicle charging station. An owner wishing to install an electric vehicle charging station may also be required to comply with any reasonable architectural standards adopted by the association that govern the dimensions, placement or appearance of the electric vehicle charging station. However, such standards cannot substantially increase the cost of installation.
The new law also provides for additional safeguards for the association. For example, installation of an electric vehicle charging station may not cause irreparable damage to the condominium property. The electricity for the electric vehicle charging station must be separately metered and paid for by the unit owner making the installation. Cost of installation, operation, maintenance and repair of the electric vehicle charging station, including hazard and liability insurance, is the unit owner’s responsibility. Additionally, an association may require the unit owner to reimburse the association for the actual cost of any increased insurance premium attributable to the electric vehicle charging station. The law also shields condominium associations from construction liens resulting from the installation of electric vehicle charging stations by unit owners.
The new law does not, however, say anything about what happens if the association voluntarily opts to install “common” electric vehicle charging stations. In other words, if a condominium association opts to install these “common” electric vehicle charging stations (after complying with the necessary legal requirements) it does not mean that unit owners no longer have the right to install their own charging stations. The new law also does not address who is responsible for any costs associated with upgrading the condominium’s electrical system if an upgrade is necessary to handle the increased electrical usage. (The above 3 paragraphs Originally posted on floridacondohoalawblog.com and written by Jennifer Horan)
Just our Thought: It would be nice to see Condos installing Charging Stations, Separate Meters and then Charging Electric Car owners Fees to cover costs and a little extra for the Associations. We will see what happens?
Although your condominium association may not have received a request for the installation of an electric vehicle charging station as yet, your board of directors should be prepared for such a request. After all, it is only a matter of time. Therefore, condominium boards should consider adopting rules and regulations governing the process by which a unit owner is required to make such a request and provide for procedures by which the board of directors is to conduct its review and approval of the request.
While a unit owner desiring to install and use an electric vehicle charging station within his or her limited common element parking space will be able to do so by way of this new legislation, the association still has the authority to govern certain aspects of the installation and use and should be proactive in making rules and regulations in line with this authority. Your association’s legal counsel can be of great benefit to the board in creating a clear and concise process governing the electric car charging stations installation and use.
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If you agreed to serve on your board, you will want to be sure you have the tools and information necessary to understand your responsibilities, discharge your duties in accordance with the applicable law and your governing documents, and avoid any potential liability associated with your new role.
Participants in this class will learn:
BUDGETING & RESERVES 1 hour class 1 IFM Credit or 1 ELE Credit Provider #0000811 / Course #9630156 When creating a financial plan for your association there are many things to consider. Join Becker attorneys as they discuss the steps it takes to create and maintain a successful budget and reserve plan. Topics we will cover include: Budget Planning Components of a Budget Calculation of Assessments Adopting The Budget Reserve Requirements & Use of Funds Straight Line Reserve Calculations
Preparing for Hurricane Season (Association Leadership Episode 10) 12:00 pm-1:00 pm 06/15/2022 RSVP HERE!
TAKE A BITE OUT OF FRAUDULENT ASSISTANCE ANIMAL REQUESTS Provider #0000811 | Course #9630287 | 1 ELE Credit Participants will learn about the Fair Housing laws on the state, federal and local level that impact community operations and actions with respect to requests to maintain emotional support animals on the property despite pet or animal restrictions. Some topics to be discussed: Fair Housing Act and Disability Accommodations Evolving Law of “Prescription Pets” Establishing a Handicap Competing Definition of Service Animal Under ADAAA and FHAA What to do When the Disability is Not Obvious What a Disabled Person Needs to Provide in Order to Own a Service Animal Innate Qualities of Service Animal Failing to Make Reasonable Accommodations and Modifications What to do when “Skeptical” Information is Provided Damages and Penalties for Discrimination This course is approved by Community Association Managers International Certification Board (CAMICB.org) to fulfill continuing education requirements for the CMCA® certification
Condo Craze & HOA’s” (RADIO SHOW) on 850AM/WFTL & YouTube with Eric Glazer Sundays 11am-12noon. Eric M. Glazer 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 five attorney law firm with offices in Fort Lauderdale and Orlando. Eric is Board certified by The Florida Bar in Condominium and Planned Development Law and the first attorney in the State that designed a course that certifies both condominium and HOA residents as eligible to serve on a Board of Directors and has now certified more than 20,000 Floridians all across the state. Mr. Glazer 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. View the show details
CONDO SOLUTIONS (RADIO SHOW) on WSTU 1450 am Mondays (9 am – 10 am) by Peter Mollengarden, Esq of KBR Legal Peter Mollengarden, Esq. on ‘Condo Solutions’ Live on Mondays, from 9:05am to 10:00am. Join Kaye Bender Rembaum attorney Peter C. Mollengarden and CPA Mark Brechbill every Monday and call in live with your community association-related questions. The number is 772-220-9788. This is available locally in Martin and St. Lucie counties on 1450 AM, or online at WSTU1450.com
Legislative Update Webinar featuring Michael Bender Join Campbell Property Management and Attorney Michael Bender from Kaye Bender Rembaum for this Legal Update Webinar. 12:00 pm-1:15 pm 06/21/2022 Campbell Property Management Join Campbell Property Management and Attorney Michael Bender from Kaye Bender Rembaum for this Legal Update Webinar. RSVP HERE This webinar does not include CEU credits. Be sure to ask your question about legal updates when you register. We will do our best to answer as many questions as possible. Board Members who attend will learn about law changes that may impact their community associations in Florida.
Conducting Meetings & Getting The Work Done The presentation will begin promptly at 6:00 PM. For Reservations Click On The Class Name and Register On the Zoom For Questions Call 954-563-1269 These seminars will be presented by the president of Royale Management Services, Steven J. Weil, PhD, EA, LCAM. Dr. Weil is a Florida Licensed Manager, he is Enrolled to Practice Before the IRS and has appeared on Good Morning America. He is regularly quoted in a number of community association professional publications .
Condo Craze & HOA’s” (RADIO SHOW) on 850AM/WFTL & YouTube with Eric Glazer Sundays 11am-12noon. Eric M. Glazer 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 five attorney law firm with offices in Fort Lauderdale and Orlando. Eric is Board certified by The Florida Bar in Condominium and Planned Development Law and the first attorney in the State that designed a course that certifies both condominium and HOA residents as eligible to serve on a Board of Directors and has now certified more than 20,000 Floridians all across the state. Mr. Glazer 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. View the show details
CONDO SOLUTIONS (RADIO SHOW) on WSTU 1450 am Mondays (9 am – 10 am) by Peter Mollengarden, Esq of KBR Legal Peter Mollengarden, Esq. on ‘Condo Solutions’ Live on Mondays, from 9:05am to 10:00am. Join Kaye Bender Rembaum attorney Peter C. Mollengarden and CPA Mark Brechbill every Monday and call in live with your community association-related questions. The number is 772-220-9788. This is available locally in Martin and St. Lucie counties on 1450 AM, or online at WSTU1450.com
By Glazer Sachs / written by Jan Bergemann
To be very honest, I am at a total loss when I look at the HOA Act the Florida legislature created with FS 720. Sometimes I wonder why they created this statute at all, considering that the provisions contained in this statute have no teeth — and it is widely known that even the best laws are useless without any proper enforcement tools.
The history of FS 720 clearly shows that enforcement of its provisions is only possible for homeowners who have lots of spare change in their pockets.
The biggest “joke” in the statutes is one sentence. Many good families lost their homes and life savings because the following sentence headlines the whole Florida HOA Act:
FS 720.302(2) The Legislature recognizes that it is not in the best interest of homeowners’ associations or the individual association members thereof to create or impose a bureau or other agency of state government to regulate the affairs of homeowners’ associations.
In all honesty, the only ones served by this sentence are specialized attorneys and their bank accounts – to the detriment of the homeowners living in these community associations.
With the existing, unenforceable statutes in place, it’s a financially risky proposition for retirees and investors to buy property within these communities. Homeowners are left to fight for themselves with no help to enforce the existing laws.
Simple matters, such as elections, record requests or financial issues, turn into expensive lawsuits that can quickly become monsters eating up families’ life savings. Many homeowners run around with blinders, ignoring permanent violations of Florida statutes, because they don’t want to risk spending their last dime on legal bills.
The proper legislation that would make life in homeowners’ associations much easier – and less expensive – is in place, but only for condominium associations.
The provisions contained in FS 720 are stacked against the homeowners, especially since in many associations budget shortfalls caused by unpaid dues and/or foreclosures are causing heavy financials burdens on the owners still paying their dues.
High legal bills are creating an even bigger hardship on the owners still paying the ever-increasing assessments, caused by the fact that the provisions contained in the HOA Act FS 720 provide no easy solutions for simple disputes.
The question that baffles everyone: Why is the Florida legislature unwilling to enact simple laws that would stop most of these shenanigans we are all reading about daily in the media? The established wording from the condo statutes could easily be used for the HOA statutes. Case law and the Florida Administrative Code is in place. Nobody has to reinvent the wheel.
But who fights these bills that would simplify life in HOAs in Florida? The only feasible explanation: The service providers, especially the attorneys that claim to lobby for the associations. They are the only ones who benefit from these useless HOA statutes.
It is definitely easier to fleece the owners if the laws are confusing and can be interpreted any way anybody wants. With the statutes for HOAs it is very easy to create mini-dictatorships and fill their own pockets – if some determined folks so desire. Is that what the folks who “invented” homeowners’ associations had in mind when they created these communities?
Tags: Condo and HOA, Condo and HOA Laws
Many Floridians live within a community operated by an association of some kind, be it a community of single-family homes under the jurisdiction of a homeowner’s or property owner’s association, or a condominium building maintained by a condominium association. These owners should be well-aware that many aspects of life within these communities are subject to restrictions outlined in a set of governing documents, which include a declaration, articles of incorporation, bylaws, and rules and regulations. While the declaration, articles of incorporation, and bylaws are typically recorded among the public records of the county in which the community is located, the rules and regulations are typically not recorded.
Because rules and regulations are usually amendable by the approval of the board of directors only (as opposed to the additional approval of the membership), allowing rules and regulations to be unrecorded provides the board of directors with the flexibility to amend the rules and regulations as the need arises without the added expense and time required to record these rule amendments among the county’s official records. However, this option has changed for homeowner’s associations as a result of recent legislative changes which took effect on July 1, 2018.
How has this changed? Pursuant to new provisions set out in Section 720.306(1)(e) of F.S., “[a]n amendment to a governing document is effective when recorded in the public records of the county in which the community is located.” While this has certainly always been the case for a declaration, articles of incorporation, and bylaws, this is new as to rules and regulations of a homeowner’s association because they were added to the definition of the term “governing documents” as set out in Section 720.301(8), F.S. when the Statute was amended in 2015, effective on July 1st of that year.
Due to the fact that many homeowner’s associations have not recorded their rules and regulations in the public records of the county, consideration should be given to record the all of the rules and regulations, particularly if there are plans to amend them. Failing to record the rules and regulations prior to (or at the same time as) recording an amendment will possibly create what is termed a “wild” amendment, which is not connected in the public records to the document it is trying to amend. Additionally, if an amendment to the rules and regulations must be recorded in order to be effective, it is logical to conclude that the initial rules and regulations must also be recorded in order to be effective. Under Section 720.303 F.S., all governing documents are required to be recorded in the public records. Therefore, a homeowner’s association should record its rules and regulations in the public records in order to avoid this possible claim against the legal effectiveness of the rules when it becomes necessary for the association to enforce its rules against an owner.
As with any other amendment to a homeowner’s association’s governing documents, within thirty (30) days after recording an amendment to the governing documents, the homeowner’s association must provide either a copy of the recorded amendment to the members or, if a copy of the amendment was provided to the members before they approved it (for those communities with owner approval requirements for rules) and the amendment was not changed before the vote, a notice providing that the amendment was adopted, identifying the official book and page number or instrument number of the recorded amendment, and that a copy of the amendment is available at no charge to the member upon written request to the association.
While the consequences of this new legislation may have been unintended, it is the law until amended otherwise or an appellate court makes a contrary ruling. Although this will likely result in some minor additional costs to homeowner’s associations, this is a good opportunity for a board of directors to examine their existing rules and regulations and update them prior to recording them among the public records.
Board members of an association subject to Chapter 720, Florida Statutes, should discuss the implications created by this recent legislative change with their association’s lawyer. It is recommended that you have experienced association counsel review any existing rules and regulations prior to recording them to ensure that they are enforceable and do not unnecessarily expose the association to liability (e.g., Fair Housing violations). As to any proposed rules not yet adopted the same holds true. Experienced association counsel should review them to both ensure enforceability and to steer clear of unintended negative consequences.
Jeffrey Rembaum, Esq. of Kaye, Bender, Rembaum attorneys at law, legal practice consists of representation of condominium, homeowner, commercial and mobile home park associations, as well as exclusive country club communities and the developers who build them. He is a regular columnist for The Condo News, a biweekly publication and was inducted into the 2012, 2013 & 2014 Florida Super Lawyers. He can be reached at 561-241-4462.
Re Published with Permission: JR / KBR Legal
Tags: Condo and HOA Board of Directors, Condo and HOA Laws, Law and Legal, Management News
When it comes to material alterations, some might say that homeowner associations have it easy compared to condominium associations. For a homeowners association, because Chapter 720, Florida Statutes is silent on the issue, unless otherwise provided in the governing documents, decisions regarding material alterations are made by the board. But, as to condominium associations, and as their board members should know, §718.113(2), Florida Statutes, requires advance membership approval for material alterations to the common elements and association real property. In this regard, there is no parity between the Condominium Act versus the Homeowners Association Act.
Before explaining further, a reminder of the Florida’s Fourth District Court of Appeal definition of what constitutes a “material alteration” from the seminal case Sterling Village Condominium, Inc. v. Breitenbach, 251 so.2d 685, 4th DCA (1971) is in order. As explained in Sterling, “as applied to buildings the term ‘material alteration or addition’ means to palpably or perceptively vary or change the form, shape, elements or specifications of a building from its original design or plan, or existing condition, in such a manner as to appreciably affect or influence its function, use, or appearance.”
Prior to July 1, 2018, §718.113(2)(a), Florida Statutes, provided that no material alteration or substantial addition can be made to the common elements or association real property without the approval in the manner provided for in the declaration, or if the declaration is silent, then by 75 percent of the total voting interests of the association. As adopted by the 2018 Florida legislature, (effective July, 1, 2018), §718.113(2), Florida Statutes was amended to provide that approval of the material alteration or substantial addition must be obtained before the work commences.
The current language of §718.113(2)(a), Florida Statutes, provides as follows:
Except as otherwise provided in this section, there shall be no material alteration or substantial additions to the common elements or to real property which is association property, except in a manner provided in the declaration as originally recorded or as amended under the procedures provided therein. If the declaration as originally recorded or as amended under the procedures provided therein does not specify the procedure for approval of material alterations or substantial additions, 75 percent of the total voting interests of the association must approve the alterations or additions before the material alterations or substantial additions are commenced. This paragraph is intended to clarify existing law and applies to associations existing on July 1, 2018. [Emphasis added]
Prior to the 2018 amendment, §718.113(2), Florida Statutes, did not expressly provide that the approval must be obtained before the material alteration or substantial addition was commenced. However, in a recent decision by the Third District Court of Appeal, the Court held that approval was required before the material alteration or substantial additions were commenced even before the language of §718.113(2), Florida Statutes, was amended to include the advance approval requirement!
In Bailey v. Shelborne Ocean Beach Hotel Condominium Association, Inc., Nos. 3D17-559, 3D17-01767 (Fla. 3d DCA July 15, 2020), unit owners brought a claim against their association alleging that the association violated §718.113(2), Florida Statutes, by failing to obtain the approval of the membership before commencing a large construction project which, they argued, constituted a material alteration to the common elements. Later, both parties agreed that all but two of the alleged “material alterations” actually constituted necessary maintenance that the association was authorized to commence without a vote of the membership.
The association alleged that the remaining two construction items were also necessary maintenance, which was an allegation the unit owners disputed. The trial court held that the remaining two alleged material alterations were valid notwithstanding whether they were necessary maintenance or material alterations because the association eventually obtained the approval of the membership (presumably after the fact). Therefore, the trial court reasoned it did not need to make a determination as to whether the two items were material alterations since the membership approved them, albeit in a tardy fashion.
On appeal to the Third District Court of Appeal, the unit owners challenged the trial court’s decision arguing that the statute required the association to obtain approval for material alterations before it commenced the work. Therefore, the plaintiff unit owners argued that the membership could not provide their consent and approval posthumously. As the construction project at issue took place between 2010 and 2016, the applicable version of §718.113(2) did not include the express requirement that approval be obtained before material alterations are commenced. However, the Court still held that the portions of a construction project that do not constitute necessary maintenance must be approved prior to commencement.
The court explained that “based on the structure of the statute, the 75 percent approval requirement is a condition necessary to overcome the statute’s clear prohibition, insofar as any of the construction work amounts to material alteration or substantial additions.” However, because the trial court did not rule on whether the two items at issue were material alterations or necessary maintenance, the Court was unable to determine whether a vote of the members was pre-required and remanded the case to the trial court for further proceeding to determine the nature of the two construction items.
Because the Court did not make a final determination whether the two construction items constituted necessary maintenance, the Court did not address the remedy for the association’s failure to obtain the advance approval of the membership. Additionally, the law fails to address the remedy when an association does not obtain membership approval before commencing a project.
In cases of material alterations already completed which required the advance approval of the membership, the present version of §718.113(2), Florida Statutes leaves no room whatsoever for the court to order an association to posthumously acquire the membership vote or put things back the way they were. Rather, the only remedy that appears available to the court would be to restore the common elements to its pre-existing state (or as close as can be accomplished under the circumstances), which explains why a legislative fix to §718.113(2), Florida Statutes, to provide for additional remedy would be helpful.
There is a very important lesson to be gleaned from the Bailey case. If your association is considering a material alteration of any kind, then the association would be wise to attain the required approval before commencing the project to avoid a successful legal challenge. If the association fails to obtain the required approvals before commencement of the project, in the event of a legal challenge, the association may well be required to undo whatever alterations were made to the common elements as Bailey suggests this was the case even before the relevant statute was amended. This can result in significant expense to the association, not to mention having to explain what happened to many irate unit owners.
Remember, prior to commencing any material alteration or substantial addition, be sure to consult your association’s attorney to ensure you comply with the requirements of the Florida law and your association’s governing documents.
Tags: Board of Directors, Common Area Issues, Condo and HOA Laws
Q: What happens is I refuse to pay a fine for violating the association’s governing documents? (R.N., via e-mail)
A: A duly levied fine is due after a board appointed fining committee confirms, at a properly noticed fining hearing at which the accused can state his or her case, a fine proposed by the board. Pursuant to amendments to the statute enacted in 2021, the fine is due 5 days after notice is sent to the person who owes the fine.
Assuming the procedures outlined under statute and the association’s governing documents are followed, the association may take action to collect the fine. The condominium and cooperative statutes prohibit unpaid fines from becoming a lien against a unit. The statute for homeowners’ associations, by comparison, provides that no fine of less than $1,000.00 can be secured by a lien against a parcel, presumably meaning that fines of $1,000.00 or more may become a lien against parcel, if authorized by the governing documents.
In most cases, a lawsuit in small claims court is the proper venue to collect an unpaid fine. The statute for homeowners’ associations provides that in any legal action to collect a fine, the prevailing party is entitled to recovery of their attorneys’ fees from the non-prevailing party, as determined by the court. While the statutes for condominiums and cooperatives do not contain the same language, it is generally believed that the generic provisions of those statutes allow for the recovery of attorneys’ fees for legal actions brought under the statute.
Fines are “monetary obligations” and, if left unpaid, can also result in the suspension of voting and common area use rights, and disqualification from board service. Unpaid fines can also be disclosed on the “estoppel certificate” that the association provides in connection with the sale of the unit, a process which is primarily aimed at ensuring that assessments and other charges applicable to the unit are properly calculated, accrued, and prorated between a buyer and seller, so that a “clean” and insurable title can be issued.
Q: Can an association charge late fees on past due assessments? (B.K., via e-mail)
A: Yes, if late fees are authorized by the documents governing your community.
The respective laws governing Florida condominium, cooperative, and homeowners’ associations allow for an administrative late fee of up to the greater of $25 or five percent of each late assessment installment, if authorized by the declaration or the bylaws. Assessments and installments on assessments that are not timely paid also bear interest as provided in the declaration or bylaws. If the community documents do not provide an interest rate, interest accrues at the rate of 18 percent per annum.
Payments on delinquent accounts received by the association must first be applied to any interest accrued, then to any administrative late fees, then to any costs and reasonable attorneys’ fees incurred in collection, and then to the delinquent assessment.
Q: Our homeowners’ association board says that we cannot have an ice cream truck in the community because our governing documents prohibit solicitation in the community. Is that true? (K.S., via e-mail)
A: It sounds like your board could use some good humor.
“No solicitation” clauses are generally aimed at prohibiting door-to-door types of activities. The legally correct answer will depend on several factors, including whether your roads are private or public, whether the community is gated, and the easement language in your declaration of covenants.
In the board’s defense, there is certainly reasonable cause for concern with children running up to the truck, potential accidents, and the like. If the association owns the roads, it would be a party to get sued in the event of a mishap or tragedy.
Perhaps a reasonable compromise would be to permit the truck to park in a certain common area for a stated period of time, and allow the patrons to come and get their ice cream from the truck only while safely parked and the motor turned off.
Joseph Adams is a Board Certified Specialist in Condominium and Planned Development Law, and an Office Managing Shareholder with Becker & Poliakoff. Please send your community association legal questions to jadams@beckerlawyers.com. Past editions of the Q&A may be viewed at floridacondohoalawblog.com.
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