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“Weighing the Costs–Common Sense/ ‘Cents’ COVID-19 Measures for Community Associations Reopening Common Elements and Common Facilities”

One full year into the COVID-19 pandemic and people have really started to appreciate (or abhor) their neighbors. The extra time at home or stuck in one’s condominium unit has caused an increased sense of awareness and, in some cases, aggravation regarding the comings and goings and habits of our neighbors. Many community associations, and especially condominiums, throughout the state have attempted to avoid becoming the next COVID-19 “hot spot” by temporarily closing community amenities and facilities to owners and guests to avoid unnecessary exposure (and the litigation guaranteed to follow) of residents to the virus. Today, as federal, local, and state governments continue to remain cautious to prevent the spread of COVID-19, the availability of vaccines coupled with the general anxiety of cabin fever has caused many community association boards to reconsider decisions to temporarily close common facilities like clubhouses, gyms, and pools.

While most association boards are anxious to reopen the community’s amenities to owners and their guests, community association boards should carefully balance the benefit of reopening facilities with the associated and increased costs and risks of doing so. Even the most cautious and cost-savvy boards would not have had the foresight to plan financially in advance for increased costs and expenses associated with heightened cleaning and sanitizing costs, supplying employees and staff with personal protective equipment, and enforcement against violators who fail to comply with the association’s COVID-19 related rules and regulations. Below are some tips to help boards manage COVID-19 related costs in the short and long term.

  1. To the extent authorized by the association’s governing documents and Florida law, increased maintenance and cleaning expenses should be passed on to individual members using common facilities who fail to comply with applicable rules and regulations.

Most community association boards are generally and specifically authorized by the declaration, articles of incorporation, and/or bylaws to make and adopt rules and regulations governing the use of the community-owned property and facilities. Additionally, both the Condominium and Homeowners Association Acts authorize associations to adopt reasonable rules and regulations pertaining to the use of common areas and facilities. (See Section 718.123(1), F.S. (Condominium Act) and Section 720.304(1), F.S). If your association has not already done so, the board should consider passing a resolution adopting new rules or amending current rules which impose on owners increased responsibility while using the common facilities and specifically restrict the use of common facilities by owners and residents who are sick or may have been exposed to the virus. Such rules should also require owners using the facilities to do so with increased care and to ensure that they use appropriate sanitizing and social distancing measures after each use. For example, there should be a rule requiring individuals using gym equipment to clean and sanitize the equipment after each use.  A failure to comply with such rules (i.e., using equipment while sick) would be considered “negligence” on the part of the violator and may require the association to hire a specialty cleaning crew or equipment to sanitize the area after that individual’s use. In which case, the association’s rules and regulations should entitle the association to impose upon the owner the increased costs or expenses associated with the increased cleaning as a result of their negligent behavior. For some homeowners associations, the declaration may allow the board to levy an “individual assessment” against the owner for these increased costs. Condominium associations may also be authorized by their governing documents to “charge” (not assess) the owner for increased costs due to owner negligence, however, such a charge may not be secured by a lien against the unit. Also note that Section 718.111(4), Florida Statutes, prohibits a condominium association from charging a “use fee” against an owner unless authorized by the declaration or by a majority vote of the association, unless the charges relate to expenses incurred by the owner having exclusive use of the common elements. The most common example of this is if an association has to hire a cleaning service after a clubhouse is used. Rosso v. Golden Surf Towers Condo. Ass’n, Inc. 651 So. 2d 787 (Fla. 4th DCA 1995)

  1. Levy fines for non-compliance and earmark fines collected for COVID-19 prevention related measures.

Once the association has adopted its COVID-19 related rules and regulations, the board should not be shy in enforcing them against violators. Pursuant to Section 718.303(3), Florida Statutes (Condominium Act) and Section 720.305(2), Florida Statutes (Homeowners Association Act), boards have the authority to levy fines against any member or any member’s tenant, guest, or invitee for failure to comply with the governing documents and reasonable rules of the association (after a duly noticed board meeting and 14 days’ notice and opportunity for hearing before an impartial fining committee).  Unlike assessments, the collection and use of which is anticipated and restricted by the association’s governing documents and annual budget, the collection of fines for non-compliance are additional funds available to the association which can be used as necessary to supplement the association’s operational costs. The association should consider earmarking non-compliance fines to help fund the increased costs and expenses related to COVID-19 prevention in the community.

  1. Plan ahead. Consider including a line item in the association’s annual operating budget to account for increased COVID-19 costs.

Hindsight is 20/20, but unfortunately, the COVID-19 forecast is not. What is certain is that all associations will undoubtedly have to plan for and guard against the threat of COVID-19 exposure on the association property for the foreseeable future. As such, the association’s board should assess actual expenses and costs incurred during the past year and incorporate and plan for the same in the association’s operational budget going forward.

 

  1. Consider opening only those common facilities and amenities for which the association has developed an enforceable plan of action.

There is no one-size-fits-all COVID-19 plan, and any prevention methods and measures adopted by the board should consider the unique circumstances (including facilities available, number of residents, etc.) which face the particular association. There is also no requirement that the association open (or close) all common facilities and amenities at the same time. For example, while the association may be prepared to reopen the gym, provided that residents are required to bring their own towel and sanitizing spray, the association may keep the pool and pool deck temporarily closed while the association identifies a preferred vendor for specialized cleaning as necessary. Taking a phased re-opening approach allows the association’s members access to some facilities while giving the board time to deliberately consider and plan for how to safely and cost-effectively re-open other facilities which may require more association attention and resources.

  1. Ask for in-kind donations and contributions from owners and residents.

Since the frantic first days of the pandemic, the hoarding of gloves, masks, and other personal protective equipment has resulted in personal stockpiles of these items large enough to supply a doctor’s office. Additionally, mask-making has turned into a national past time and has spurred countless and selfless donation campaigns across the country. To help fulfill the association’s need for items (and to prevent unnecessary and costly purchases), the association may consider hosting a mask, glove, and/or cleaning equipment drive during which residents are encouraged to donate extra unused items to be used by the association to stock the common areas and facilities. Such efforts demonstrate the association’s understanding for member’s concerns and their desire to take advantage of community facilities and also fosters a sense of ownership among residents to remind them that that preventing the spread of COVID-19 is not just a board obligation but a community-wide responsibility.

 

Shayla J. Mount

Attorney at Law, Becker
Orlando | bio

 

New Laws Regarding Emotional Support Animals

New Laws Regarding Emotional Support Animals

Other than political debate, perhaps nothing else evokes more of an “emotional” response than the issue of emotional support animals in a no pet community.  While this is not a new issue, and has been discussed many times in this forum and others, new laws in Florida may affect how your community may handle a request for an association to make a reasonable accommodation to its governing documents, rules and regulations or policies to allow a resident to maintain an emotional support animal in a no pet community.  These new laws may also affect how or what an applicant submits, what an association can be required to submit and may temper some of the, shall be say, not necessarily accurate portrayal of a requestor.

I want to be very clear that the comments in this article, as well as well as the new laws discussed, would have no effect at all on a legitimate application for an emotional support animal from an applicant that qualifies for an emotional support animal.  The new laws have been enacted, and have unfortunately become necessary, to address the plethora of requests for a reasonable accommodation for persons who do not qualify for such an accommodation, and merely want to bring their pet into a no pet community because they want to, not because they need to medically.  Such inappropriate applications have been accompanied by, for example, letters from podiatrists attesting to psychological issues; letters from registered nurses attesting to psychological issues, etc.  No disrespect to our podiatrist and registered nurse friends; I just use them as an easy example of health care practitioners that have written letters stating a person is disabled due to a psychological issue.

We are all familiar with the basic requirements that must be provided by a medical health care provider’s letter in support of an applicant’s request for a reasonable accommodation to maintain an emotional support animal in a no pet community.  The letter must state that the applicant is disabled, that the disability affects a major life function, which one, and how the animal ameliorates the effects of the disability on the major life function.

Recent changes to the law in Florida affect what is required in order for a person to make a valid request for a reasonable accommodation in Florida.  Changes in §413.08, F.S.; §419.001, F.S.; §456.072, F.S.; §760.22, F.S.; §760.23, F.S.; §760.24, F.S.; §760.25, F.S.; §760.27, F.S.; §760.29, F.S.; §760.31, F.S.; §817.265, F.S., all of which are effective as of July 1, 2020, have changed the landscape a bit in regard to such requests.

For example, Section 817.265, Florida Statutes, provides:

A person who falsifies information or written documentation, or knowingly provides fraudulent information or written documentation, for an emotional support animal under s. 760.27, or otherwise knowingly and willfully misrepresents himself or herself, through his or her conduct or through a verbal or written notice, as having a disability or disability-related need for an emotional support animal or being otherwise qualified to use an emotional support animal, commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. In addition, within 6 months after a conviction under this section, a person must perform 30 hours of community service for an organization that serves persons with disabilities or for another entity or organization that the court determines is appropriate.  (Emphasis added.)

In addition, Section 456.072, Florida Statute, was amended to provide that a health professional who provides information, including written documentation, indicating that a person has a disability or which documentation supports a person’s need for an ESA without personal knowledge of the person’s disability or disability-related need for the specific ESA, is subject to disciplinary action. 

Moreover, Section 760.27, Florida Statutes, provides, in relevant part:

(1) DEFINITIONS.-As used in this section, the term:

(a) “Emotional support animal” means an animal that does not require training to do work, perform tasks, provide assistance, or provide therapeutic emotional support by virtue of its presence which alleviates one or more identified symptoms or effects of a person’s disability.

…

(c) If a person’s disability-related need for an emotional support animal is not readily apparent, request reliable information that reasonably supports the person’s need for the particular emotional support animal being requested. Supporting information may include:

  1. 1. Information identifying the particular assistance or therapeutic emotional support provided by the specific animal from a health care practitioner, as defined in s. 456.001; a telehealth provider, as defined in s. 456.47; or any other similarly licensed or certified practitioner or provider in good standing with his or her profession’s regulatory body in another state. Such information is reliable if the practitioner or provider has personal knowledge of the person’s disability and is acting within the scope of his or her practice to provide the supporting information.

…  (Emphasis added.)

Finally, pursuant to FHEO-2020-01, dated January 28, 2020, HUD advised that a housing provider may take into consideration the totality of the circumstances surrounding the request, including facts such as, but not limited to, bringing the animal on property without seeking approval, the documentation provided was purchased online, etc. 

The changes in the law apply to condominium, cooperatives and homeowners’ association.  Some of the changes allows a housing provider, including a community association, to request certain written documentation prepared by a health care practitioner in a format prescribed in rule by the Department of Health.

The practitioner or provider of the supporting information must have personal knowledge of the person’s disability and must be acting within the scope of his or her practice.  The new laws also provide that if a person falsifies information or written documentation or knowingly provides fraudulent information to obtain an emotional support animal,
they can be charged with a misdemeanor of the second degree.  These new laws can, and should be, a deterrent to those who do not really qualify for a reasonable accommodation for an emotional support animal from applying for a reasonable accommodation, as well as a deterrent for health care professionals providing such letters for those who do not qualify for them.

Enforcing these new requirements and laws should make is easier for those who legitimately  require the services of an emotional support animal to qualify with an association.  Remember, all requests for an emotional support animal should be discussed with your association attorney to make sure the request contains the required information.  An association should never merely deny an application for a reasonable accommodation; the association is required to engage in the “interactive process” in an attempt to obtain the required information.  For these reasons you should always discuss any type of request for a reasonable accommodation with the association attorney. 

 

Howard J. Perl, Esq.

Shareholder, Becker
Fort Lauderdale | bio

 

How Community Associations Can Handle the Continuing Popularity of Short-Term Rentals

How Community Associations Can Handle the Continuing Popularity of Short-Term Rentals

Despite a year that has drastically curtailed traveling due to the global COVID-19 pandemic, the popularity of online vacation and short-term rental platforms, such as Airbnb and others, has persisted as people have sought escapes to private homes instead of hotels and to upgrade their work-from-home routines to somewhere with a view. Airbnb is only one of a number of platforms that has facilitated the process by which owners can rent out their properties or a section of their properties for any number of days. Florida has remained a popular choice for short-term vacation rentals, with its sunny weather and numerous beachside properties.

These online platforms have popularized income-generation from short-term rentals for some property owners. This includes owners whose properties are located within community associations. Short-term vacation rentals create a host of issues for community associations and for neighboring owners—issues that may be exacerbated by the COVID-19 pandemic. Short-term guests are likely unfamiliar with association rules and regulations, or may simply not care. This may result in nuisance behaviors, such as excessive noise, unauthorized parking, or improper trash disposal. Short-term guests also are not impacted by the long-term effects of the wear and tear of common facilities and therefore may disregard proper use of the facilities, or worse, cause damage to the property. Moreover, guests unapproved by the association always have the possibility of being a security risk to the community. Some of these issues are exacerbated by the COVID-19 pandemic as associations seek to protect their residents with additional rules aimed at curbing the spread of the virus within the community. For example, a short-term renter may unwittingly attempt to use the pool or gym despite a rule prohibiting all guests.

All types of community associations face issues with short-term rentals. However, they may be much more visible in condominium associations where a unit is bound on other sides to other units, as opposed to single-family lots in homeowners’ associations. Part of the difficulty association boards face with short-term rentals is enforcement of existing regulations and/or COVID-19 specific rules. A weekend-renter who hosts a noisy gathering on Saturday night may be gone the next day. A family who foregoes wearing masks when walking around the common areas may have already caused harm by the time the owner is contacted regarding the violation.

In addressing short-term rentals, community associations should first look to their governing documents. A provision defining short-term rentals and restricting such use of the property would prove most effective. Because the short-term rental boom is still a relatively new issue, many association documents will not contain such a provision. If so, an association should seek to amend its governing documents. While not always easy to accomplish, this is generally the most effective way to deal with short term rental issues.

Condominium associations face an added challenge even if they successfully amend their documents. In 2004, the Florida Legislature amended the Condominium Act to limit the impact of such an amendment. Per Section 718.110(13) of the Condominium Act, an amendment prohibiting unit owners from renting their units or altering the duration of the rental term or specifying or limiting the number of times unit owners are entitled to rent their units during a specified period of time applies only to unit owners who consent to the amendment and to unit owners who acquire title to their units after the effective date of the amendment. Therefore, this amendment would not serve the association against owners currently engaging in short-term rentals without their consent. The Homeowners Association Act does not contain a similar provision.

Other restrictions that are more commonly found in association documents may also be useful in restricting an owner’s ability to set up short-term rentals. Some common restrictions found in association governing documents specify a minimum term of a lease, such as six months or a year, or specify the number of times a property may be rented per year. Florida courts have long upheld properly adopted leasing restrictions.

Many associations have sought to utilize the “residential use” restriction contained in their governing documents to restrict short-term rentals. Such an endeavor would first require a close examination of this provision. For example, the governing documents may mandate residential use, or in other cases, may prohibit commercial uses of a unit. Any interpretation, and thus application to a short-term rental, would turn directly on the express language of the provision. These provisions have been extensively litigated in courts across the country. This is so because defining the bounds of activities that constitute residential use or commercial use is not a bright line. Moreover, certain activities of short-term renters may be consistent with residential usage of the property, while the owner is generating income from the use. Nevertheless, courts have generally been reluctant to apply a residential use provision as a restriction on short-term rentals.

Most significant to Florida community associations is the First District Court of Appeal’s 2017 decision in Santa Monica Property Owners Association v. Acord. In Acord, the court found that where renters were using the property for ordinary living purposes, such as eating and sleeping, the duration of the rental was not relevant. The court went on further to explain that the nature of the use of the property was not changed from residential to commercial simply because the owner earned income from the rentals. The court included a laundry list of cases from out-of-state jurisdictions wherein courts have held that short-term vacation rentals did not violate the residential use restriction at issue. Acord as a case of first impression and the only Florida appellate case on the issue serves as a signal to associations that relying on its residential use restriction may not be enough to curtail short-term vacation rentals in the community.

Of note are two 2020 cases from jurisdictions outside of Florida wherein the courts have sided with associations in interpreting the residential use restriction. In Cherry Home Association v. Barker, a Michigan community association sued several owners engaging in short-term rentals, citing the residential use limitation in their declaration. In a creative argument, the owners argued that they had not violated the residential use restriction because they had not turned a profit from their rentals. The judge granted the association’s injunction, finding that earning a profit does not determine whether a use is residential or commercial. The owners’ poor business skills did not make the use non-commercial. In the second case, Hoffman Revocable Trust v. Marshall, the Kentucky Court of Appeals agreed with the association that an Airbnb rental is a commercial use, rather than residential use, comparing the transaction to that of a hotel’s. These cases have no binding effect on Florida courts, but may serve as persuasive tools for courts, as well as for associations unable to amend their governing documents and needing to rely on a residential use restriction.

Outside of the governing document provisions, an association has several other steps it can take to address short-term rentals. First, an association should document violations as they arise and send the appropriate violation letters to the owners. Although the quick departure of a short-term renter may dampen the efforts of the association to resolve an issue regarding that particular guest, a thorough record of violations against the particular owner is vital to an association’s enforcement efforts. Second, going directly to the source by contacting the online platform may be an option in some instances. For example, the Airbnb Terms of Agreement makes hosts responsible for complying with laws, rules, regulations and contracts with third parties, specifically listing homeowner and condominium association rules that may restrict subletting, short-term rentals, and even longer-term stays. Lastly, an association may have to resort to legal action against owners who repeatedly violate their association’s governing documents.

Short-term vacation and rental websites, such as Airbnb and Vrbo, are not diminishing in popularity anytime soon. Moreover, the potential uptick in demand for leisure travel following the wide distribution of the COVID-19 vaccine may very-well cause a rise in demand for such short-term rentals. It is important for association boards to be aware of potential issues resulting from short-term rentals.

Now is the time to take proactive action to arm your association with the tools required to deal with these types of problems.

 

Karyan San Martano

Attorney at Law, Becker
Ft. Lauderdale | bio

 

The “Nuisance Problem”

The “Nuisance Problem” –

When Do Annoying Behaviors and Activities within and Surrounding the Community Become a Legal Nuisance and How Can your Community Deal with It?

It seems like everybody’s got a problem with somebody these days. Sure, certain quirks and behaviors can certainly be classified as “annoying.” Who isn’t annoyed by that neighboring co-worker or spouse that insists on singing loudly and proudly, not to mention off-key, even with their earphones plugged in?? While irritating, not every annoyance rises to the level of a legally actionable nuisance.  This article will explore recent case law concerning when an individual or Association may have a potential claim for nuisance based upon the common law definition of nuisance and related provisions in the community association’s governing documents. 

(I) Nuisance Defined

             Common Law Nuisances

For as long as there have been feuding neighbors, there have been legal claims alleging that one or other have in some way engaged in an activity or behavior which creates a nuisance and therefore in some way injures the other party and/or their property.  Over time, courts have established the common law definition for nuisance based upon the rulings in these court cases.  In general, neighbors have a common law duty not to interfere with or to render each other unsafe or insecure in life or in the use of their property. Windward Marina LLC v. City of Destin, 743 So.2d 635, 639 (Fla. 1st DCA 1999). Stated another way, “an adjoining property owner cannot maintain a…nuisance on his property which is injurious to the…property rights of an adjacent landowner and not be answerable [for it].” McClosky v. Martin, 56 So. 2d 916, 918 (Fla. 1951).

Anyone can be subject to a claim for common law nuisance depending on the specific facts and circumstances of the case.  A determination of whether a particular activity or behavior is a “common law nuisance” is largely subjective and is based in part on the sensitivities and impact of the activity on the person bringing the claim.  Generally speaking, ordinary, occasional disturbances or annoyances, no matter how infuriating, do not rise to the level of a common law nuisance.  Notwithstanding, certain “noises” have been deemed by courts in the past to be a nuisance. Some examples include the following:

  • Low-flying aircraft (City of Jacksonville v. Schumann, 199 So. 2d 727, 729 (Fla. 1st DCA 1967)
  • Airboats ( Lake Hamilton Lakeshore Owners Association v. Neidlinger, 182 So.3d 738, 741 (Fla. 2d DCA 2015)
  • Chickens and Roosters (Erwin v. Alvarez, 752 So.2d 1261, 1262 (Fla. 2d DCA 2000)
  • Air Conditioning Equipment (Davis v. Levin, 138 So. 2d 351, 352 (Fla. 3d DCA 1962)

Ultimately, whether a common law nuisance exists is a question of fact that is based upon the evidence presented to the court and a consideration of the reasonableness of the individual’s use of their property and how their use affects the private rights of others. Depending on the facts presented in the case, a court has generally broad discretion in not only determining if a common law nuisance exists but also whether the individual claiming the nuisance is entitled to an injunction order prohibiting the person from engaging in the activity, monetary damages or both.  Importantly, a common law claim of nuisance is based upon the facts presented and is not based on a specific provision of a contract or Florida Law.  Accordingly, a party that successfully brings a claim for common law nuisance may be entitled to monetary and/or injunctive relief but would not automatically be entitled to recover their attorney’s fees and costs incurred in bringing the case.

Contract Based Nuisances

For properties and individuals who are subject to an HOA or Condominium declaration, most community association governing documents also contain a use restriction which prohibits “nuisances” from occurring within the community. These nuisance provisions contain a generally broad definition which usually refers to any “unreasonable annoyance” that interferes with the “peaceful possession and proper use of the property.”  Although most community association documents prohibit nuisance behaviors, the term “nuisance” is not defined in either the Condominium Act (Chapter 718, Florida Statutes) or the HOA Act (Chapter 720, Florida Statutes).  Because there is no standard definition of nuisance provided in the Condominium Act or HOA Act, it is necessary to look to the specific nuisance provisions of the association governing documents (if any) to determine what types of behaviors would constitute a violation of the nuisance provisions in the declaration.  Some declaration provisions may only broadly prohibit “any nuisance or annoyance” in the community without providing a specific definition of what is meant by the term “nuisance.”  Other nuisance provisions may also include a list or example of specific activities that constitute a nuisance under the declaration, for example, discharging a firearm on the property or “illegal or criminal activities” such as illicit drug use.  Very rarely do nuisance provisions specifically define as a nuisance non-criminal annoyances such as an incessantly barking dog or a loud television or radio playing in the wee hours of the morning.  As further outlined by the recent case summarized below, it is possible that a particular activity or behavior may constitute a common law nuisance but does not constitute a “nuisance” as defined by the association’s governing documents.  Conversely, a nuisance under the Association’s documents may not rise to the level of a commo law nuisance.   In contrast to a common law nuisance claim, to the extent that an individual successfully raises a claim for nuisance under the association’s declaration, they may be contractually entitled to recover their attorney’s fees and costs.

  1. Roebuck v. Sills, 2020 WL 5938189 (Fla. 1st DCA 2020)

In one recent nuisance case, Roebuck v. Sills, 2020 WL 5938189 (Fla. 1st DCA 2020), a neighbor (hereinafter referred to as the “annoyed neighbor”) sued his next door neighbor (hereinafter referred to as the “annoying neighbor”) claiming that the annoying neighbor’s pool pump equipment and exterior lighting created a common law nuisance and also violated the nuisance provisions of the HOA Declaration.  (For the sake of this article, the neighbors will be referred to as “annoyed neighbor” and “annoying neighbor”. These designations are loosely based upon the nuisance allegations raised in the case and are NOT a statement or opinion as to the personal character or personality of either of the neighbors involved in the lawsuit.) At trial, the annoyed neighbor claimed that the noise and light generated by the annoying neighbor’s newly installed pool equipment could be seen and heard through the master bedroom window and thus impacted the annoyed neighbor’s ability to sleep and enjoy his property (the pool equipment was located between 12-14 feet away from the master bedroom window). The annoyed neighbor sued the annoying neighbor seeking both an injunction and monetary damages, including attorney’s fees and costs. After a four-day bench trial, the court’s ultimate decision was “on the fence” as to whether the noise and light could be considered both a common law nuisance and a nuisance pursuant to the definition of the Declaration. The trial court found that the noise and light created a common law nuisance but did not violate the nuisance provisions of the Declaration. The trial court awarded monetary damages to compensate for the construction of a wall and an injunction which prohibited use of the exterior lighting and pool equipment between 9:30 pm and 9:30 am.

Both neighbors appealed the trial court’s order and on appeal, the annoyed neighbor argued that not only did the annoying neighbor fail to obtain pre-approval from the Association’s Architectural Review Board prior to installing the pool pump and exterior lighting but that the installation of the same violated the nuisance provision in the Declaration which stated as follows:

“Nothing shall be done or maintained on any Lot or Common Property which may be or become an annoyance or nuisance to any other Lot in the vicinity thereof or to its occupants, or to the Common Property. […]”

Although this provision did not provide a formal definition for “annoyance or nuisance” it did state that any dispute or question as to what may be or become a nuisance “shall be submitted to the Board of Directors and the written decision of the Board of Directors shall be dispositive of such dispute or question.” Roebuck, 2020 WL 5938189 at *3. The evidence presented to the Court revealed that the annoyed neighbor did not seek or obtain a written decision from the Board regarding whether the items in question did constitute a nuisance as it is defined by the Declaration.  The evidence further reflected that the annoying neighbor had in fact complied with the design review and approval process contained in the Declaration.  Accordingly, and because there was no other evidence suggesting that the annoying neighbor had otherwise breached the Declaration, the appellate court upheld the trial court ruling that the pool pump and exterior lighting were a common law nuisance but not a nuisance under the Declaration.

The final issue on appeal in this case dealt with the award of attorney’s fees since both parties partly prevailed in the case. On one hand, the annoyed neighbor was the prevailing party because the court found that the pool pump and lighting constituted a “common law” nuisance. On the other hand, the annoying neighbor was also deemed the prevailing party as it related to the breach of Declaration claim because the pool pump and lighting did not violate the nuisance provisions of the Association’s Declaration.  Upon further review, the appellate court found that the language of the Declaration only entitled the Association to recover attorneys’ fees and costs if the Association was the prevailing party in enforcement litigation.  The language did not also entitle individual owners to recover their attorney’s fees and costs from other owners, even if they were the prevailing party in the case.  Therefore, there was no way for either party to collect attorney’s fees from the other on a claim related to a breach of the Declaration. Although the Declaration did not expressly provide for prevailing party attorney’s fees for individual owners, the court also looked to the language of Section 720.305(1), Florida Statutes, of the HOA Act, which provides in part as follows:

“[…]The prevailing party in any such litigation is entitled to recover reasonable attorney fees and costs. […]”

The Court interpreted the phrase “such litigation” to include “the sort of Homeowners’ Association Act-based litigation described by the statutes, involving the governing documents.”  Id. at *4. Accordingly, even though the express language of the Declaration did not provide for attorney’s fees for successfully defending against a breach of Declaration claim, the language of the HOA Act did and thus, the annoying neighbors were entitled to recover their attorneys’ fees and costs. 

(III) Nuisance Behaviors and Activities that Occur Within the Community

As evidenced by the facts and result in the aforementioned case, claims for nuisance brought by and against members of the Association are subject to common law, the provisions of the HOA (or Condominium) Act and the specific nuisance provisions contained in the association’s governing documents.  As outlined by the Court in the Roebuck opinion, an activity may constitute a common law nuisance without rising to the level of a “nuisance” as the term is defined by the association’s governing documents.   An individual (or association) bringing a nuisance claim as a violation of the governing documents should carefully review the language of the relevant nuisance and enforcement provisions to determine the following

(a) Is there a specific definition for “nuisance” provided in the Declaration?  Is the definition broad (“any annoyance or nuisance”) and/or are specific activities defined as a “nuisance” by the express language of the provision (i.e.: discharge of firearm, illegal or criminal activity)?

(b) Is there a mechanism by which the Board (or board designated committee) can make a determination as to whether an activity constitutes a “nuisance” for purposes of the Declaration? 

(c)  What relief is the “prevailing party” entitled to (i.e.: attorney’s fees and costs, injunction, monetary damages, all of the above)?

The association’s board of directors should carefully review the current nuisance provisions contained in the association’s governing documents (if any) to determine if an amendment to the language is appropriate to more specifically address certain behaviors or activities which have become a prevalent problem throughout the community.  Ideally, the definition for nuisance should be broad enough to include a wide range of potentially troublesome activities (i.e.: criminal activity) yet specific enough to address certain actions which may not be a “common law” nuisance but may still threaten the peace and safety of other members in the community. 

You will also need to consult with your attorney as to any conditions precedent required before filing a lawsuit.  In an HOA you will have to file a demand for pre-suit mediation pursuant to Section 720.311, Florida Statutes, before filing a complaint to enforce a nuisance provision of the Declaration; in a condominium association you will have to file a petition for arbitration pursuant to Section 718.1255, Florida Statutes, before filing a complaint to enforce a nuisance provision of the Declaration

(IV) Nuisance Behaviors and Activities that Occur Outside the Community but that Directly Affect or Impact your Community

Often times, communities may be confronted by the nuisance behaviors of individuals or entities that are not members of the association and thus are not subject to the provisions of the HOA Act or the association’s governing documents (i.e.: a deteriorating wall abutting the community that is owned by the neighboring association or an incessant, loud noise or smell created by the activities of a neighboring property owner).  In these cases, the appropriate claim is that the behavior or activity is a common law nuisance.  As outlined by the Court in Roebuck, because a claim for common law nuisance is not based on a particular statute or contract (i.e.: Declaration), the prevailing party in the litigation is not entitled to recover attorney’s fees and costs even if they are entitled to monetary damages and/or an injunction against the individual or entity requiring them to stop the nuisance behavior or activity.

Consult with your Association’s attorney today to review the nuisance and enforcement provisions contained in your governing documents!

 

Shayla J. Mount

Attorney at Law, Becker
Orlando | bio

 

Distinguishing between Statutory and Non-Statutory Reserves under the Florida Homeowners’ Association Act

Distinguishing between Statutory and Non-Statutory Reserves under the Florida Homeowners’ Association Act

Considering the fiduciary responsibilities officers and directors have to the homeowners’ association’s members, it is important to understand not only the importance of including reserve accounts in an association’s budget, but also to understand when reserve funding is mandatory under the Florida Homeowners’ Association Act. Unlike condominium associations, maintaining fully funded reserve accounts is not always mandatory for homeowners’ associations.

Reserve accounts allow the association to set aside funds for deferred or long-term maintenance of common areas or for capital expenditures, so as to eliminate the need for special assessments.

Although Homeowner Associations may collect periodic assessments from homeowners for the regular operation and maintenance of these common areas, such as routine pool cleaning, a large repair or replacement due to deterioration, such as pool remarciting or replacement of a clubhouse roof, will not typically be covered by these periodic assessments. Deterioration of common elements is unavoidable, and can be accounted for over years, rather than upon needing replacement. Akin to a safety net savings account or a rainy-day fund, reserves can also cover large and unexpected expenses, which will inevitably arise.  Without a reserve fund, the association may have no choice but to raise assessments or levy a special assessment on homeowners. Even if homeowners may initially be reluctant to pay more to fund reserves, they usually will be more displeased with a large, unexpected bill due to the association’s lack of planning. This also results in an uneven penalization of current homeowners, who are now responsible for deterioration that occurred over the years but was not paid for by prior owners. Additionally, delay in collecting on special assessments may delay repair, cause further deterioration, and result in a loss of property value.

Because of their significance in running a financially healthy community, the Homeowners Association Act was amended to provide for reserves. However, the statute does not mandate reserve accounts for all homeowners’ associations. Reserve accounts thus fall into two categories: statutory reserves, which are mandatory and must follow the requirements of the statute, and non-statutory reserves, which are board-created and limited by the association’s governing documents.

Statutory Reserves

The Homeowners Association Act was amended to provide for reserve accounts, but has only made reserves mandatory if they fall into the following two categories: reserves initially established by the developer or mandatory reserves affirmatively elected by members of the association. A reserve account established in one of these two ways means that the association must determine, maintain, and waive the reserves in accordance with the statutory requirements laid out in section 720.303(6) of the Homeowners Association Act.

If the developer initially established reserves, the developer has an obligation to fund the reserves while it maintains control of the homeowners’ association.   In the event that the developer fails to fund or properly waive the reserves, homeowners will have a cause of action against the Developer for recoupment of such funds. That type of action is beyond the scope of this article. The statute further requires that the budget reflect in what manner developer created reserves will be used. While the developer still controls the association, it will not be able to vote to use the reserves for other than intended purposes, unless approved by a majority of non-developer voting interests. Once the developer has turned control over to the association, the developer may still vote its interest to waive or reduce the funding of the reserves for the units it owns. It is therefore recommended that a community approaching turnover from developer control double check that the developer is properly funding its reserves or properly waived or reduced the funding.

In associations where reserve accounts are not initially provided for by the developer, the members may elect to establish statutory reserve accounts by a majority of the total voting interests of the association at a duly noticed meeting where the item is on the agenda. This can be done either by a vote at a duly called meeting or by written consent. Like developer-established reserve accounts, under this method, the vote must designate the components for which the reserves are to be used. In the years following the approval, the board must include the required reserve accounts in the budget and continue to do so every year after that.

Once established either by the developer or by the membership, statutory reserves must be funded, or must be waived. To waive or decrease funding for such reserves, a majority vote at a meeting with quorum present must be taken. Notably, this vote to waive or reduce the reserves applies to only one budget year. The association, if it so chooses, may terminate such a reserve account by approval of the majority of the voting interests of the association. The Homeowners’ Association Act also explains the formulas for properly calculating the funding of these reserve accounts, and the accounting must be done as provided. For those who are familiar with condominium reserves, statutory homeowner association reserves generally must be treated in the same manner as condominium reserves.

Non-Statutory Reserves

As noted above, funding reserves for homeowners’ associations is only mandatory under the statute if the developer has established reserve funding or if the owners have voted to establish statutory reserves. However, an association may choose to maintain a “non-statutory reserves.” Essentially, these accounts are board-created and their funding is limited by the governing documents of the association. The most significant difference is that these accounts are not mandatory and do not have be maintained or waived according to the Homeowners’ Association Act (as required in the Condominium Act).

Subject to document-based limitations on assessment increases, the board decides how much to include in the reserve account as part of its regular budgeting process. The association is obligated to prepare an annual budget reflecting annual operating expenses, including estimated revenues and expenses for the year. The association should endeavor to accurately calculate its estimated expenses and revenues as overstating anticipated expenses to put into a reserve account is not consistent with the statute’s budgeting requirements. As with calculating statutory reserves, it is recommended that the association consult  a reserve professional.

Because the reserve accounts are not bound by the statutory requirements, the board may choose to waive, reduce, or even eliminate the reserves. Further, the board may also decide to use the reserves for other than intended purposes. Although this means that the board may have more leeway in how to spend the reserves or in deciding to underfund the reserves in times of hardship, it is important to remember that the board still owes a fiduciary duty to the association’s members. Underfunding reserves or waiving reserves altogether may lead the association to rely on special assessments, as described above. An association that decides not to provide for reserves but is responsible for repair and maintenance that may result in a special assessment is obligated to include specific statutory language addressing this conspicuously in its annual financial report.

Since the amending of the Homeowners’ Association Act, a distinction between statutory and non-statutory reserves has arisen. Because the board may not have to fund reserves at all, or may have to strictly follow statutory requirements to fund such reserves, it is important to understand how the reserve accounts were initially set up. If reserves are not mandatory, it is recommended that the association nevertheless set up reserve funds to ensure a continuing healthy financial future for the community.

 

Karyan San Martano

Karyan San Martano

Attorney, Becker Ft. Lauderdale | bio

 

Political Signs

political signs

Political Signs

Increasingly, I am being asked by clients about whether they can prevent residents from displaying political signs from their units or lots. These clients all have restrictions against signs in their governing documents. The main concern, and response to enforcement, relates to the First Amendment: the right to free speech. 

Importantly, the First Amendment to the United States Constitution prevents state actors from limiting the right to freedom of speech unless such limitations are narrowly tailored and otherwise proper. This is especially true when the speech that is the subject of regulation is political in nature. 

The First Amendment applies to “state actors.” In Quail Creek Prop. Owners Ass’n, Inc. v. Hunter, 538 So. 2d 1288, 1289 (Fla. 2nd DCA 1989), the Second District Court of Appeal in examining an association’s sign restriction found that “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.

To be a “state actor,” the Eleventh Circuit Court of Appeal has held that a “Court must conclude that one of the following three conditions is met: (1) the State has coerced or at least significantly encouraged the action alleged to violate the Constitution (‘State compulsion test’); (2) the private parties performed a public function that was traditionally the exclusive prerogative of the State (‘public function test’); or (3) ‘the State had so far insinuated itself into a position of interdependence with the [private parties] that it was a joint participant in the enterprise[ ]’ (‘nexus/joint action test’). Rayburn ex rel. Rayburn v. Hogue, 241 F.3d 1341, 1347 (11th Cir.2001). “Like the Eleventh Circuit, the state courts of Florida have also determined that homeowners’ associations existing under the laws of the State of Florida, are not state actors for purposes of fulfilling the “color of state law” element.” Murphree v. Tides Condo. At Sweetwater by Del Webb Master Homeowners’ Ass’n, Inc., No. 3:13-CV-713-J-34MCR, 2014 WL 1293863 (M.D. Fla. 2014).

While an association may turn to the courts for enforcement of an anti-sign restriction, which arguably involves “state action,” the Eleventh Circuit Court of Appeal has limited the context in which judicial enforcement of a private covenant would involve sufficient state action to implicate the First Amendment to the enforcement of racially restrictive covenants. Id.

While there are risks in enforcing an anti-sign restriction in the context of political signs, it is likely that an association can have restrictions against political signs, that such restrictions do not involve state action, and that their enforcement would not be prohibited by the First Amendment.

 

Marielle E. Westerman

Marielle E. Westerman

Community Association Law, Becker Tampa | bio

 

Sit Back and Enjoy the Ride

Electric Vehicle Charging Stations

“Sit Back and Enjoy the Ride:

Practical Considerations for Condominium Boards Regulating Electric Vehicle Charging Stations”

On July 10, 2020, Governor Ron DeSantis announced over $8 million of the state’s budget this year will be dedicated to strengthening Florida’s electric vehicle infrastructure. The intent of what Gov. DeSantis described as a “long-term investment” is to “promote reduced emissions and better air quality” and to “improve mobility and safety for the ever-increasing number of Floridians that drive electric cars.” Undoubtedly, many of these electrically mobile Floridians also reside in one of the thousands of condominium associations located throughout the state. And while many Tesla enthusiasts await with bated breath the latest and greatest in electric powered vehicles, many condominium boards are fearful of how their condominium property may be negatively impacted by this latest Jetson-inspired craze.

What Your Association CANNOT Do.

In sum, s. 718.113(8)(a), F.S., prohibits any declaration or Board-rule or policy from prohibiting a unit owner from installing an electric vehicle charging station within the boundaries of the unit owner’s limited common element parking area. Importantly, unit owners do not have a unilateral, unrestricted right to install EV stations anywhere they please. The right is specifically limited to the owner’s limited common element (LCE) parking area.  In other words, owners do not have the right to install EV stations on the Common Elements, within their units, or anywhere outside of the boundaries of their designated limited common element parking areas as outlined in the Association’s Declaration.

What Your Association CAN Do.

Where the Declaration does provide an LCE parking space for units, the Association can do the following:

  1. The Association can obligate the installing owner to pay for the costs of installation, operation, maintenance, and repair, including the costs to obtain hazard and liability insurance to cover the charging station.

    2.  

    Because the EV station will be located on limited common elements, the Association can also require the Owner to provide to the Association proof that it is named as an additional insured on the Owner’s policy within 14 days of Association approval for the EV installation.

  2. The Association can also require the Owner to:
    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. 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.
  3. The Association can place a lien on the Unit in order to enforce payment of costs associated with the Owner’s installation and use of the EV station.

    4.  

    The language of s. 718.113(8)(d), F.S. allows the Association to enforce payment of EV costs using the lien collection provisions provided in s. 718.116, F.S.. What is not clear is whether the Association is required to specially or individually assess the owner for the EV costs prior to filing a lien for the same. It is best to consult your Association’s Governing Documents and your Association attorney for further guidance on this process.

     

  4. The Association can deny an EV installation, if there is proof that it will cause irreparable harm to the Association property.

    5. This is best determined by an electrical engineer or other expert who can assess the Association property’s optimal electrical capacity and usage.

 

What Your Association SHOULD do.

  1. Amend Governing Documents to provide express easement and obligations for Unit Owners related to the installation and maintenance of EV stations.

    2. Because most condominium declarations recorded prior to the statute change will not reference an owner’s statutory right to install an electric vehicle charging station, the language of Section 718.113(8)(g), F.S. provides a statutory “implied easement” across the condominium’s common elements for this purpose regardless of the easement language contained in the Association’s governing documents. 

    If the Association is able to obtain the necessary votes to amend the Declaration, it should do so to specifically include an express easement to Unit Owner’s for the installation, maintenance and repair of electric vehicle charging stations.   The amendment should also outline the costs and liability responsibility of Unit Owners for their stations.

     

  2. Amend Governing Documents to address subsequent Unit Owner obligations and responsibilities for charging station maintenance and removal.

    3. Section 718.113(8)(d), F.S. makes the “unit owner who is installing” the station responsible for the costs of installation as well as removal and repair. This language, as it is currently written, can be interpreted to impose this responsibility only on the installing owner and does not specifically impose any continuing maintenance responsibility on any subsequent owners who may purchase the unit (and the appurtenant charging station) from the installing owner.

    Any amendment to the Declaration or Board policy related to EV stations should make sure to specifically impose maintenance and costs responsibility upon the installing owner and any subsequent owners.

     

  3. Engage an engineer or professional to assess the Association’s electric capacity prior to an influx of EV installation requests.

    4. Although every Unit Owner is technically entitled by the Condo Act to install an electric vehicle charging station within their LCE parking area, it is practically impossible for any condominium association to grant every owner’s request given the energy constraints of the condominium property. The Association should consult with an electrical engineer or other professional to conduct an independent assessment of the Association’s capacity to safely accommodate EV stations at the condominium property.

 

Shayla J. Mount

Attorney at Law, Becker
Orlando | bio

 

Budgets

Budgets

With budget season approaching, Florida community associations must consider their capital expenditures and long-term maintenance needs. Community associations set aside a portion of their budgets for capital expenses and deferred maintenance, frequently referred to as “reserves.” The reserves are for expenses that do not occur on a regular basis and reserves are designed to ensure that funds will be available for repairs and maintenance without the need for special assessments. Different components will have varying useful lives; for example, a roof may have a useful life of several decades, whereas a building may require painting every few years. Community associations can either reserve, specially assess, or borrow funds to pay their capital expenditures and long-term maintenance needs. When preparing your annual budget, reserve requirements will depend on whether your association is a condominium, cooperative, or a homeowner’s association and the assets your association maintains.

Condominiums & Cooperatives

Condominiums and Cooperatives share similar concepts and reserve requirements. The Condominium Act and the Cooperative Act, and the corresponding Florida Administrative Code sections, have important nuanced differences. You should consult your Association attorney for him or her to review the relevant Act and Administrative Code sections in determining your association’s obligations when reserving for future expenses.

The Condominium Act and Cooperative Act requires that reserves include at least roof replacement, building painting, pavement resurfacing, and any other item that has a deferred maintenance expense or replacement cost that exceeds $10,000. The association may consider each asset separately when determining if a deferred maintenance expense or the replacement cost of an item exceeds $10,000. Alternatively, the association may group similar or related assets together. The condominium portion of the Florida Administrative Code give the example of an association that is responsible for two swimming pools, each with less than $10,000 in deferred maintenance expenses but together require more than $10,000 in deferred maintenance expenses, may establish a reserve for the pools. The reserves must be maintained in a separate account from the operating account unless they are commingled for investment purposes. In that case, the reserves must be separately accounted for in the combined account. Combining the accounts requires the Association to account for the reserves separately from the operating account and the Association must be very cautious to insure there are no mistakes in this regard.

Reserves are calculated using a formula based upon the estimated remaining useful life and estimated replacement cost or deferred maintenance expense of each reserve item that can be found in the statutes and/or Florida Administrative Code. The association may adjust replacement reserve assessments annually to take into account any changes in estimates or extension of the useful life of a reserve item as a result of deferred maintenance. The formula must provide funds equal to the total estimated deferred maintenance expense or total estimated replacement cost for an asset or group of assets over the remaining useful life of the asset or group of assets. The formula must be based on either a separate analysis of each of the required assets, “straight-line method,” or a pooled analysis, “pooled method,” of two or more of the required assets. Associations should periodically obtain a reserve study to determine the useful life and replacement costs of its reserve items and make adjustments to its reserve funding based on changes. Both the straight-line and pooled reserve methods require setting aside funds based on the cost to repair and replace the capital assessments and remaining useful life of the assets. The projected annual cash inflows may include estimated earnings from the principal’s investment, although the reserve funding formula may not include any balloon payments. The method of calculating each is beyond the scope of this article. The association’s accountant or attorney should be consulted for questions regarding each method.

When adopting a budget, the association must send every unit owner a proposed budget, including full funding of reserves. At the members’ meeting, reserves may be waived or partially funded by a vote of the membership. Limited proxies may be used for the vote to waive or partially fund reserves and the limited proxies must conform to the form adopted by the Division of Florida Condominiums, Timeshares, and Mobile Homes. The limited proxies must include specific statutory capitalized and bold language. If a vote to waive reserves is not conducted, if the vote falls short of a majority, or a quorum is not present, the budget with full reserves goes into effect. Your governing documents may provide a different threshold to waive or partially fund reserves, so your governing documents must be referenced to determine if a different threshold must be met.

Reserve funds must be used for the purpose that they were reserved. This means there is no such thing as “borrowing” from reserves. Any use of reserves for other than the intended purpose must be approved by the membership.

Homeowners’ Associations

Unlike condominiums or cooperatives, homeowners’ associations are not required to establish reserves unless initially established by the developer or the membership of the association affirmatively elects to provide for reserves. Member approval to establish reserves requires approval from a majority of the total voting interest. When establishing reserves by a membership vote, the approval must state that reserves shall be provided for in the budget and must designate the components for which the reserve accounts are to be established. Once the membership provides for reserve accounts, future budgets must include reserve accounts unless waived or partially funded by a majority vote of the members at a meeting where a quorum is present.

If the association maintains reserves, but those reserves were not initially established by the developer or a vote of the membership, then funding of such reserves is limited to the extent that the governing documents limit increases in assessments, including reserves. The annual budget may include reserves that are not required by staute.

Computation of the reserve accounts may be either via a pooled or straight-line method similar to that used by condominium and cooperative associations. If the developer initially established reserves or the membership elected to establish reserves, the reserves must be funded unless a majority of the members present at a members’ meeting votes to waive or partially fund.

If reserves were not initially established by the developer or by a vote of the membership and the association maintains improvements that may result in a special assessment if reserves are not provided, the association must include in its financial report the language mandated by Section 720.303(6)(c)1, Florida Statutes. Additionally, if the association maintains reserves, but those reserves were not initially established by the developer or by a vote of the membership, then the association must include in its financial report the language mandated by Section 720.303(6)(c)2, Florida Statutes.

Marielle E. Westerman

Michael​ Casanover

Attorney at Law, Becker
Ft. Lauderdale | bio

Association Loans/Lines of Credit

Association Loans/Lines of Credit

In this time of growing financial crises, associations are increasingly considering loans/lines of credit in order to have sufficient cashflow in the event of  budget shortfalls caused by increasing delinquencies or in order to pay for projects that cannot be funded through the operating budget alone but cannot be postponed.

In considering loan/line of credit terms as well as structuring repayment options for owners, associations must be aware of documentary limitations on borrowing and owner assessments as well as legal limitations on borrowing and owner assessments.

Loan/Line of Credit Terms

Associations must be aware of typical loan terms that can run afoul of common provisions in association documents if not handled properly. Such typical terms include the pledging of reserves, real property, personal property, and insurance payments.  In many instances, the inclusion of such terms requires membership approval rather than board approval alone by statute. For instance, the pledging of statutory reserves requires the same approval of the membership as is needed for using reserves for a purpose other than the specified purpose of the reserve account(s).   the Boards must also be aware that the governing documents can restrict the right to borrow money in ways different than the statutes, and such limitations must be addressed.

Repayment Options

In obtaining a loan/line of credit, the repayment of same must always be a consideration. Typical repayment options involve special assessments or the inclusion of payments in future operating budgets. Consideration must be given to the financial climate that is likely during the term of the loan/line of credit. For instance, if during the life of the loan/line of credit, financial instability or crises is likely, then the association needs to plan for the possibility that units/homes may go into foreclosure.  In such a circumstance, if the association has levied a special assessment, the payment obligation to pay the special assessment could be wiped out in the event of a bank foreclosure. Care must be taken to draft special assessments so as to avoid such a scenario.

In terms of repayment of a special assessment, the following cases are relevant. In a 2003 “Declaratory Statement” entitled In Re: Petition For Declaratory Statement, Walter Grover, Unit Owner, Portofino Condominium Apartments of Pompano Beach, Inc., DBPR Final Order No. BPR-2003-02688 (November 15, 2003) was issued. In this matter, the condominium association levied a special assessment and adopted a payment plan. It was determined that it was permissible for a condominium association to permit some owners to prepay a special assessment levied by the Board, while other owners paid over time at a stated rate of interest, where all of the owners were given the same option to either pay a lump sum or to pay in installments. Accordingly, to the extent that an association desires to levy a special assessment in connection with a loan, this statement would stand for the proposition that an association can give the owners the option to either pay up front or over time at the stated interest rate. It should be noted, however, that Declaratory Statements are, as a matter of law, only binding between the parties involved. However, they are at least persuasive authority as to the interpretation of the law from the state agency which has jurisdiction to enforce the condominium laws. However, these pronouncements are not “the law” in the same manner as specific statements in the statutes nor rulings from appellate courts. The second case that is problematic for association is a Fourth District Court of Appeals case entitled Gallagher v. Seagate of Gulf Stream Condominium Ass’n, Inc., 423 So.2d 640 (Fla. 4th DCA 1983). In the Seagate case, the lessor of a recreation lease offered an optional buyout proposal to all unit owners. The non-purchasing unit owners were then assessed a reduced monthly rent and purchasing unit owners were not assessed any portion of the rent. Because the Condominium Act provides that rent on a recreation lease is a common expense, and because common expenses are shared by all unit owners, the Court concluded that excusing one unit owner from payment of his share of the common expenses violated the statute unless all owners were likewise excused from payment. This case could be argued for the proposition that excusing any unit owners from their payment of interest is likewise unlawful.

Lastly, some associations desire to include a “due of sale” provision as to the payment of special assessments. Such a provision is likely not enforceable as it would create two different assessment collection categories which would likely be in conflict with the statutes and most governing documents. It is not to say, a “due on sale” provision of a special assessment would always be invalid but such provisions must be thoroughly reviewed by counsel.

In many instances, if possible, the inclusion of repayment of a loan/line of credit is best handled through inclusion in the regular annual budget of the association. This is so, because the pitfalls and risks of special assessments as to subsequent title holders is reduced since only the past assessments are, in some cases, limited or extinguished through mortgage foreclosure.

Conclusion

In this climate of fast changing economic conditions, associations must thoroughly consider the options available for financing their needs and how they can repay such obligations in order to best position themselves for financial stability.

Marielle E. Westerman

Marielle E. Westerman

Community Association Law, Becker
Tampa | bio

Not All Approaches are “Created Equal” When Getting Rid of Old Discriminatory Covenants

Not All Approaches are “Created Equal” When Getting Rid of Old Discriminatory Covenants

One of the most important and valuable aspects of a property owners’ rights is that owner’s ability to market and sell their property and to do so free from the fear of “hidden” or outdated restrictions or claims which may have previously burdened their property. What to do when a person raises a claim of a 50-year old unrecorded and unused easement agreement between neighbors executed by way of a “gentleman’s handshake”?  Or, what about the long lost great-grandnephew who arrives home from sea with an unrecorded quit claim deed to the property executed and delivered to him personally by his deceased beloved aunt 40 years earlier?  Chapter 712, Florida Statutes, or the “Marketable Record Title Act” (“MRTA”), was first introduced by the Florida Legislature in 1963 with the goal of protecting owners from certain types of stale and undocumented claims against property which are more than 30 years old from the property’s “root of title” (ie: deed).   Since its introduction, the application of MRTA in helping to clear title to property by automatically extinguishing potentially troublesome real estate claims has done much to provide stability and peace of mind to buyers and sellers alike. (Not to mention the cost and time savings for title companies in conducting and reviewing a 30-year title search as opposed to a 100-year title search!)

For years, state legislatures have struggled with balancing the need to protect an individual’s valid property rights while facilitating the removal of outdated, irrelevant and potentially illegal burdens or claims which undermine the free transfer of property.  This year, the Florida Legislature passed a comprehensive housing anti-discrimination bill (SB 374), which, among other changes, seeks to simplify the state-level administrative process for persons affected by housing discrimination.  In addition to removing the requirement that persons alleging housing discrimination must first exhaust their administrative remedies prior to filing a lawsuit for the same in state court, this bill also specifically amends the provisions of Chapter 712 to automatically extinguish any “discriminatory restriction,” defined to mean  “a provision in a title transaction […] that restricts the ownership, occupancy, or use of any real property in this state by any natural person on the basis of a characteristic that has been held  […] by the United States Supreme Court or the Florida Supreme Court be protected against discrimination under the Fourteenth Amendment [to the US Constitution] or under s. 2 Art. I of the State Constitution, including race, color, national origin, religion, gender or physical disability.”

Unfortunately, the existence and influence of discriminatory use restrictions in real estate transactions were at one time common place, not just in the Florida but throughout the country. For example, the 1948 United States Supreme Court case, Shelley v. Kraemer, 334 U.S. 1 (1948), involved the attempted and unsuccessful purchase of a home by an African American couple in St. Louis, Missouri, in which a neighboring property owner sued to enforce a 1911 race-based restrictive covenant which specifically prevented purchase of the property by “people of the Negro or Mongolian Race.”  In that case, the U.S. Supreme Court found that any state court action to enforce such a blatantly discriminatory restriction was in violation of the Equal Protection Clause under the Fourteenth Amendment of the U.S. Constitution.  

The Shelley case made it clear that state courts cannot enforce discriminatory covenants, however, the case did not go so far as to invalidate the existence of discriminatory covenants in the first place.  In other words, even after the Shelley case, community associations and individual neighbors (in lieu of a community association) were still free to create, impose and abide by such discriminatory restrictions, as long as they did not bring a claim to enforce those restrictions in a state court.   Although rare, the reminders and remnants of this period in American history are still evidenced today.  More specifically, some older associations may have provisions in their Declaration or other governing documents which contain obviously discriminatory restrictions based upon a person’s racial, national, ethnic, or religious identification.  To the extent that these restrictions exist in an association’s governing documents, even if they are not enforced, it leaves an association open to liability for claims of discrimination under the Federal and Florida Fair Housing Acts.

The intention of the proposed amendments to Chapter 712 are commendable and long overdue. However, legislators must be careful not to “throw the baby out with the bath water.”  In other words, the attempt to deal with the rare instances in which these discriminatory restrictions still exist should not have the affect of invalidating other restrictions which may be objective, yet unintentionally discriminatory. For example, does a declaration provision restricting holiday decorations to a particular time frame or holiday season diminish or infringe upon a person’s equal protection rights based upon their religion if that person wants to maintain Christmas decorations year-round?  Or is a pet restriction which prohibits or limits the number of pets a person may have in their unit, automatically subject to extinguishment under MRTA because, on its face, the restriction discriminates against a disabled person claiming to need a service or emotional support animal?

Other states have taken more narrowly tailored approaches to address old restrictions which are blatantly discriminatory. For example, in California, a restriction is found to be discriminatory and thus void as a matter of law after notice, review and confirmation by the county attorney.  In Washington state, the law includes a specific list of examples within the statute of potentially discriminatory provisions which are considered void.   The language of SB 374 as passed provides neither a preliminary or subsequent objective review process, by a court or county attorney, nor a list of examples which would help identify or more specifically define a “discriminatory restriction” which would be subject to automatic extinguishment under the new MRTA provisions.  A more narrowly tailored approach would help curb potentially disingenuous claims from owners that an otherwise legitimate and reasonable restriction is “discriminatory” just because it in some way restricts that owner’s use of their property.  Without further direction from the legislature in the first instance as to the type of provisions that are considered “discriminatory,” an Association’s Board is left to wonder whether they may be enforcing a provision that may ultimately be challenged as “discriminatory” and thus void and unenforceable under MRTA.

 

Shayla J. Mount

Attorney at Law, Becker
Orlando | bio