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Condominiums generally consist of the following two components: 1) the units that are subject to exclusive ownership by one or more persons, and 2) the common elements, which are any areas not included within the unit boundaries. Unit owners, in addition to the exclusive ownership of their units, also own an undivided share in the common elements. Commonly, the association is responsible for the maintenance, repair, and replacement of the common elements at common expense, while the unit owners are each responsible for their individual units at their own expense.

What about those areas of the condominium property that are used only by one owner or a group of owners but lie outside the boundaries of the units, such as a parking space or balcony? These may be a subset of common elements known as limited common elements, if so designated by the declaration of condominium.

The Florida Condominium Act defines limited common elements as those common elements that are reserved for the use of a certain unit or group of units, as specified in the declaration of the condominium. This definition indicates that the limited common elements are a subset of the common elements. See Gary A. Poliakoff, Law of Condominium Operations §4:65 (“[A]lthough all limited common elements are common elements, not all common elements are limited.”). Unlike the common elements, the limited common elements are restricted to the use of one or a few unit owners. The right to use limited common elements is appurtenant to one unit or group of units, meaning that the right to use the limited common elements is tied directly to that unit or units’ ownership. Common examples include parking spaces, storage units, balconies, or patios. There are also less obvious elements external to the unit boundaries, but serving exclusively one unit owner or group of owners, such as plumbing lines or air-conditioning units, that may be limited common elements. The key component in making the determination as to whether something is a limited common element stems from the Condominium Act definition, which provides that the designation of these common elements as “limited” common elements is entirely dependent on the language of the declaration.

If the limited common elements are a subset of the common elements, does this mean the association is responsible for their maintenance, replacement, and repair? Sometimes, but not always.

The Florida Condominium Act states that the association is responsible for maintaining the common elements, which includes the limited common elements. This is logical, if all limited common elements are common elements, it follows that the association is responsible for the maintenance, repair, and replacement thereof at common expense. If the declaration is silent, maintenance of the limited common elements is an association responsibility, as a “common expense,” meaning all owners share the cost. This may sometimes seem unfair or surprising to condominium unit owners in that they are paying for the maintenance, repair, and replacement of condominium property that they are not permitted to use, such as the neighbor’s balcony. The law allows the declaration to delegate maintenance responsibility for limited common elements to the benefiting owner(s), or to the association but at the expense of the benefitting owner(s).

The Florida Condominium Act provides that the declaration can require that the limited common elements be maintained by the individual unit owners who benefit from the exclusive use of the limited common elements. Again, declaration language is key to this responsibility allocation. The maintenance responsibility delegation to the unit owners can also be accompanied by a provision that this maintenance is at the expense of the benefitting owners, rather than at common expense. Even if the association does maintain the limited common elements, it may be able to allocate the costs of the maintenance to those owners entitled to use the limited common elements in question. Again, the declaration needs to provide that the costs of the maintenance is the responsibility of the unit to which the limited common element is assigned. In such a case, the association can perform the required maintenance or repairs and charge the owner or owners who benefit from the use of these limited common elements.

Importantly, even if the maintenance and costs for the limited common elements are designated by the declaration as the responsibility of the unit owner, the board, nevertheless, has the right to enter and access a limited common element for necessary repairs in an emergency or after reasonable notice, in the same manner it can access a unit.

The designation of common elements as limited common elements can also be significant in determining the board’s authority to regulate or reassign these areas. For example, if parking spaces or storage units are limited common elements pursuant to the declaration, the board would not have the right to reassign the spaces or units without the permission of the owners who have exclusive rights to use the same. On the other hand, if those parking spaces or storage units are not designated as “limited” common elements by the declaration, the board may have the right to reassign the same.

Associations with ambiguous or vague documents can run into issues when it comes to distinguishing exactly who is responsible for what and determining the board’s authority over certain areas of the condominium. In the event that the declaration is unclear, it is important to discuss options with association counsel. The Condominium Act strictly limits the way an association can spend its money, which means it is important that the association understand what it is responsible for and what it is not responsible for before inappropriately spending association funds. If the association seeks to have the unit owner or group of owners who benefit from a certain common element to be responsible for the maintenance, repair, and replacement of the same, the declaration needs to both designate the area as a limited common element and allocate the responsibility to the benefitting owners. If the association prefers to handle the maintenance of certain limited common elements, but at the benefitting unit owner’s expense rather than common expense, it is also important for the declaration to provide that the association’s maintenance of the limited common elements charged to the owner(s) is secured by a lien in the same manner as the common expense assessment lien. It is best to obtain an opinion from association counsel as to the delegation of responsibilities before undertaking major repairs where the declaration is unclear or ambiguous. Association counsel can also work with the board to amend the declaration to better meet the needs of the association based on the design of the condominium property.

Karyan San Martano

Attorney at Law, Becker
Ft. Lauderdale |bio

 

As most condominium association boards and managers are aware by now, Section 718.112(2)(k), Florida Statutes, of the Condominium Act, was most recently amended to require a condominium’s bylaws to include a provision for alternative dispute resolution as provided in Section 718.1255, Florida Statutes. The alternative dispute resolution process outlined in Section 718.1255, Florida Statutes, was also amended, effective July 1, 2021, to allow for arbitration or mediation of certain condominium disputes. Previously, prior to filing a lawsuit in state court, condominium associations and unit owners were required to petition the Division of Florida Condominiums, Timeshares, and Mobile Homes of the Department of Business and Professional Regulation (“Division”) to conduct an arbitration hearing when there was a disagreement or “dispute” between the association and unit owner regarding the following:

  • The authority of the board of directors, under the Condominium Act or the association documents, to:
    • Require any owner to take any action, or not to take any action, involving that owner’s unit or the appurtenances thereto; or
    • Alter or add to a common area or element.
  • The failure of the Association to:
    • Properly conduct elections.
    • Give adequate notice of meetings or other actions.
    • Properly conduct meetings.
    • Allow inspection of books and records
  • A plan to terminate the condominium, per Section 718.117, Florida Statutes.

(Note that disputes regarding the following are NOT subject to the statutory alternative dispute resolution process outlined in Section 718.1255, Florida Statutes: title to any unit or common element; the interpretation or enforcement of any warranty; the levy of a fee or assessment, or the collection of an assessment; the eviction or other removal of a tenant from a unit; alleged breaches of fiduciary duty by one or more directors; or claims for damages to a unit based upon the alleged failure of the association to maintain the common elements or condominium property.)

Section 718.1255(5), Florida Statutes, now allows the condominium association or unit owner to choose between the Division’s arbitration hearing process or the presuit meditation process with which homeowner associations are required to comply per Section 720.311, Florida Statutes, of the Homeowners Association Act. (Condominium election and recall disputes are not eligible for mediation and are required to be arbitrated by the division or filed in a court of competent jurisdiction.) It is important for condominium boards to consider a number of factors when choosing whether to pursue presuit arbitration or mediation of a particular dispute. Below are guidelines for an association to consider and discuss with its attorney when considering its enforcement and alternative dispute resolution options:

1. Language of the Governing Documents

As always, the first place for an association to start when considering its enforcement and alternative dispute resolution options is the association’s governing documents (which collectively refers to an association’s declaration, articles of incorporation, bylaws, and rules and regulations). Some association declarations or bylaws may contain a specific notice and alternative dispute resolution procedure with which the association is required to comply prior to initiating a lawsuit against an owner. For example, the declaration may contain a clause that expressly states that the association “shall” submit certain disputes to arbitration, in which case, the association must arbitrate the dispute or amend the provision to remove the requirement. The association’s attorney may also conduct an analysis of the association’s governing documents to determine if there is certain language within the documents which automatically incorporates into the association’s governing documents future changes to the Condominium Act (“Kaufman language”).

2. Timing

The Division arbitration hearing process is similar to the hearing process followed in state court. When a party files a petition to initiate arbitration with the Division, an arbitrator is appointed to act as a “judge” between the parties who are responsible for filing motions and presenting evidence and testimony in support of their position. If required, the arbitrator may conduct a mini-trial or evidentiary hearing during which the parties may produce and present evidence and cross-examine witnesses. In light of the foregoing, the arbitration process can sometimes last a few to several months (if not a year or two) before there is a final opinion issued by the arbitrator. Even after the arbitrator issues a “final” opinion, Section 718.1255(4)(k), Florida Statutes, allows the parties to file a complaint for “trial de novo” in state court within thirty (30) of the arbitrator’s final decision. In which case, the parties would essentially have to “re-litigate” the dispute from the beginning before the state court judge.

The presuit mediation process outlined in Section 720.311, Florida Statutes, requires the association send a statutory offer to participate in mediation to the alleged violator. If the individual does not respond within twenty (20) days from the date of the letter, or if the individual does not agree to mediate, the Association can proceed with filing a lawsuit against the individual in state court, without any additional notice to the individual. Additionally, persons who fail or refuse to participate in the entire mediation process may not recover attorney’s fees and costs in subsequent litigation relating to the dispute, even if he or she is ultimately the prevailing party in the lawsuit.

On balance, the presuit mediation process may be quicker than the arbitration process in resolving the underlying dispute (if the individual agrees to mediate) or obtaining a final resolution of the dispute in state court. (Note that Section 718.1255(4)(c), Florida Statutes, does allow a party to file a Motion to Stay the arbitration if the Association is requesting emergency relief.)

3. Cost and Attorney’s Fees

Because the arbitration process is similar in time and, in some cases, effort to the state court hearing process, the Association can expect to incur costs, including but not limited to petition filing fee ($50), administrative or management company costs, mailing and copying costs, etc., and attorney’s fees; even if the individual does not aggressively fight or defend against the Association’s petition. On the other hand, if the Association chooses to offer presuit mediation, and the other party agrees, the Association will still incur administrative and management fees but the other party must also specifically agree to pay or prepay one-half of the mediator’s fee. Additionally, the attorney time/expense associated with preparing and attending a one or two-day mediation are generally less than the attorney time/expense time associated with the entire arbitration process.

With regard to attorney’s fees, Section 718.1255(4)(k), Florida Statutes, provides that the prevailing party in the arbitration shall be awarded the costs of the arbitration and the “reasonable attorney fees” in an amount determined by the arbitrator. It is important to note, however, that in any arbitration, the Association’s success as the “prevailing party” is not guaranteed and thus, the Association can be subject to paying its attorney fees and the other side’s attorney fees if the arbitrator issues an opinion against the association. Additionally, even if the association is ultimately determined to be the “prevailing party,” it is responsible for paying its attorney fees and costs up front and throughout the duration of the arbitration. Not to mention, there is no guarantee that the arbitrator will award the Association the entire amount of its costs and fees nor that the individual is financially capable of paying the Association’s award of attorneys’ fees and costs (ie: “judgment proof”).

Without a doubt, the presuit mediation process is generally cheaper than the presuit arbitration process with regard to both actual costs and attorney fees. Because the parties are encouraged to come to the table to discuss the dispute with the assistance of a neutral mediator, it is more likely that a resolution can be reached more quickly (and calmly) than if the parties first address the issues and their positions in an adversarial type of hearing (as is the case with arbitration or litigation in state court). Additionally, during the privileged and confidential mediation process, the Association is able to assess the strength of its claim and that of the other side’s prior to deciding whether it wants to pursue full blown litigation on the issue in state court. Lastly, and importantly, even if the other side does not agree to mediate or the mediation results in an impasse between the parties, the Association is not at risk of paying the other party’s attorney’s fees, as is the case if the Association is not the prevailing party in the arbitration proceeding.

4. Nature of the Dispute

As already outlined above, not every dispute is subject to the presuit mediation or arbitration process outlined in s. 718.1255(4)(k), Florida Statutes, so it is important for the association to review each dispute or potential claim with the association’s attorney as well as the association’s insurance carrier (as applicable). If the dispute is one that involves a topic or issue that involves or affects a number of owners, the Association may consider the arbitration process in order to obtain a “final” opinion from the arbitrator which might be applicable to other owners (ie: enforceability of the Association’s rules regarding official records and written inquiries). If, however, the issue is one that concerns only one owner or is highly fact-specific, the confidential, presuit mediation process may be advisable.

The latest changes to Section 718.1255, Florida Statutes, reflect the legislature’s continuing commitment to helping condominium associations and unit owners resolve disagreements in the most cost-effective and timely manner. Be sure to review your association’s current alternative dispute resolution process and procedures with association counsel today to ensure it is up-to-date and effectual in resolving the condominium’s disputes.

 

Shayla J. Mount

Attorney at Law, Becker
Orlando | bio

 

This past year has brought out divisiveness and discord at all levels of governance, including community associations. Although emotions always seem to run particularly high, community associations have been filled with neighbors with differing values, preferences, and opinions as to how the association should be run and maintained. Even pre-COVID, association governance could become intensely personal. The board makes tough decisions that impact members’ property values, enjoyment of the property, and quality of life. This makes communicating in a civil manner a requirement of living in a community association, especially in associations with shared amenities and with members residing in close proximity to one another.

When communications disintegrate and a lack of civility becomes the standard in a community, emotions, interruptions, and personal attacks can overshadow fundamental business and operational decisions. These meetings and communications are unproductive and can leave all involved with a distaste for the community or board members, which may lead to good directors no longer wanting to remain on the board or cause good staff to leave. This also takes time and resources away from the necessary operation of the community to resolve interpersonal conflicts between members, directors, and/or staff. Maintaining civility in association communications, both spoken and written, can go a long way in solving practical problems and resolving disputes. This includes emails and social media, which have made it easy to send or forward regrettably uncivil communications.

Disagreements are bound to happen in any community association, and striving for unanimity from members on issues is not the aim. In the majority of cases, board directors, members, and management all want what is best for the community but may disagree on the approach. A civil and business-like approach to association communications and decisions can allow members to respectfully voice their disagreements, while also understanding that the board may need to make difficult decisions they do not like or agree with. The board should have the ability to inform members what behaviors, such as personal attacks, are unacceptable. This applies to communications between board members as well. Directors should be ready to address poor behavior from another director if the need arises.

Some communities have implemented a board member code of conduct within their governing documents to set a standard for civility. Such a code can help set rules and guidelines for interactions between directors, and with members, management, staff, and contractors. This language can also help set reasonable expectations as to how directors must conduct themselves when it comes to maintaining the privileged nature of communications, disclosing potential conflicts of interest, and setting aside personal agendas. This helps directors better understand how to fulfill their fiduciary duties and helps members have more confidence that directors are conducting themselves in the best interest of the community as a whole. Association counsel can assist in drafting this language to best fit the needs of your community.

Implementing reasonable rules governing meeting conduct can also be helpful to ensure that meetings are conducted in a productive, business-like manner. Members have a right to attend board meetings and a right to speak on agenda items at the meetings. The association can adopt written reasonable rules governing the frequency, duration, and manner of unit owner statements. The board can emphasize that these rules are not to limit owners’ right to speak but rather so that all may have an opportunity to be heard and ask their questions. Where issues may turn contentious or difficult decisions need to be made, association counsel can attend and assist the board in conducting the meeting.

At the end of the day, the board members have a fiduciary duty to the members of the association, which means they must act in the best interest of the association as a whole, act in good faith, and avoid conflicts of interest. When directors are newly elected, they must certify in writing that they will work to uphold the association’s governing documents and policies to the best of their ability and will faithfully discharge their fiduciary responsibility to the association’s members. Whether or not a code of conduct is in place in the community, these are mandatory responsibilities of any director sitting on the board of a community association. These responsibilities also mean that the board will have to make tough decisions, which will not necessarily be popular with members, but that are beneficial to the community as a whole.  Maintaining civility throughout this sometimes-difficult process will go a long way in enhancing the members’ respect for the board members and the board members respect for each other and the members.

 

Karyan San Martano

Attorney at Law, Becker
Ft. Lauderdale | bio

 

Yes, it’s that time of year again. The six month long hurricane season in South Florida. South Florida has seen an increase in hurricane activity over the past years, and that is expected to continue this year.  Let’s look at some ways community associations to prepare for such storms.

Information on how to prepare for storms and emergencies usually revolves around preparing the building, securing association property, etc. Let’s talk about some of the other, just as important aspects that community associations need to be aware of in order to properly prepare for a storm, natural disaster or emergency.

Preparing for hurricanes, tropical storms and other disasters is a year round endeavor.    Management contracts, landscaping contracts, security contracts, elevator contracts and construction contracts should all be reviewed for emergency procedures and in particular named storms. Some of the particular provisions that can be added into these types of contracts are:

Management Contracts

  • What extraordinary relief services will be provided by your management company?
  • What is the priority of relief services to be provided?
  • What additional charges will you incur to have your manager oversee repair projects and does your management contract obligate the association to use your manager in this capacity?

 

Landscaping Contracts

  • What relief and cleanup services will be provided and in what time frame post-storm?
  • What preventative services can be provided pre-storm (i.e., tree trimming, staking trees, etc.)?
  • Tree trimming should be completed before June 1st.

 

Security Contracts

  • What relief services will be provided and in what time frame post-storm? How soon after a storm passes will you once again have security personnel in place?
  • In the event of a name storm, when will security leave their post? When do they return ?
  • If you have electronic gates, what does your contract require in terms of securing those in the event of a storm?

 

Elevator Contracts

  • What relief services will be provided and in what time frame post storm?
  • If you do not have a generator for your elevator(s) what arrangements has the board made in the event the power is out for any length of time and residents cannot use the elevators?
  • What preventative services can be provided pre-storm? Is a generator advisable and affordable?

 

Construction Contracts

  • Any contracts for construction work on the association property should contain a clause requiring the contractor to secure the premises and their work material in the advent of a storm.

 

Miscellaneous Contracts

  • Does the association lease any space to third parties? If so, do those contracts require the association to take any steps to secure the leased premises or clean up the leased premises in the event of a storm?

Association storm preparation and recovery should be a part of every one of the above types of contracts.

An association should have video and photographic documentation of the property condition, as well as an inventory of all association property, before a natural disaster or emergency occurs.  This documentation should he updated every year

Documents

Community associations are not-for-profit corporations and, as such, rely heavily on various documents to function properly. Association records should be scanned and uploaded for temporary secure internet storage with hard copies placed in watertight Ziploc bags and secured in a fireproof box. With proper advance planning, your board will have peace of mind that the following documents have been safeguarded and will be available in the immediate aftermath of a storm.

Documents to be secured include:

  • Insurance policies
  • Resident lists
  • Financial records
  • Employee records
  • Contracts
  • Association Governing Documents
  • Community Plat
  • Plans & Specifications for the community
  • Video, photographs and inventory list of association and association property

Computer Records

  • Hard Drive back-up – thumb drive, online storage, thumb drive

Staff

Don’t forget your staff!  If the association has employees, the association’s policies and procedures with regard to those employees’ duties regarding storm preparation and storm cleanup need to be reviewed with legal counsel to ensure compliance with all local and federal ordinances. In addition, the board needs to discuss with counsel proper protocol to allow employees to leave early to secure their own residences and property in the advent of a storm and/or not to report to work after the storm until the property has been determined to be safe.

Post disaster

Immediate Actions

  • Account for the whereabouts of residents;
  • Attend to the injured;
  • Secure the community from acts of vandalism and looting.
  • Notify the police in the event of a theft;
  • Document damage with photographs and video;
  • Before making arrangements to remove storm debris other than life threatening or access obstructing, contact your city to see what plan of action it has for debris removal;
  • “Drying In”/”Shoring Up” the building structures in order to mitigate against further damage;
  • Remove, where necessary, wet carpet, wall board, cabinets, etc. when necessary to prevent the growth of mold;
  • Survey the property and identify areas needing priority attention; and
  • Open lines of communications with the unit owners, contact emergency services, and notify the contractors and employees, advising of their duties and needs.

Reconstruction & Restoration

  • Contact Your Attorney Immediately. This is critical to ensure that your insurance provider’s requirements are met and that your community’s rights are protected.
  • Contact Your Insurance Agent.
  • Resist the natural urge to use a public adjuster to shepherd your claim without first discussing advantages and disadvantages with legal counsel.
  • Do NOT sign any contracts or releases without having them properly evaluated in advance by legal counsel.
  • Resist the attempts by out-of-state and possibly unlicensed vendors who swarm to our state in the aftermath of a disaster to do business with you.
  • Do not suspend common sense and/or forget to use the resources available to you. Performing due diligence on contractors should still be the norm.
  • Discuss possibilities for conventional financing and/or SBA disaster loans to fund repair and reconstruction projects with your legal counsel.
  • Be aware that most damage is not apparent to the visible eye or to anyone other than trained experts. Even if hurricane damage is not readily apparent at first, experts should be consulted to determine the extent of battering your community suffered.

Claims process

DO NOT SETTLE A CLAIM WITHOUT YOUR ATTORNEY’S INVOLVEMENT.

Carefully document the event; this will provide the claims adjuster with a head start in evaluating the claim.

  • Retain damaged property until a claims adjuster approves disposal (unless retaining such items poses a danger to safety).
  • Prepare an inventory list of property damaged. List the quantity, the description, the actual cash value and actual loss. Attach bills, receipts and related documents.
  • The claims adjuster from the insurance company should contact you in 2-5 business days from the date that you reported your claim.
  • With your attorney obtain all possible evidence in the claim.
  • Evidence includes, but is not limited to invoices, receipts, pictures, estimates, governing documents and correspondence regarding the claim.
  • The evidence will be used to document the condition of the property and maintenance prior to the event, as well as damages caused by the loss, emergency repairs performed to mitigate further damage, and repairs made to the property.
  • The damages that still need repair will be determined with an engineering baseline.
  • Ensure compliance with all conditions precedent pursuant to the terms of the policy.
  • Hire forensic experts to obtain a scope of repairs to bring the property back to its pre-loss state.
  • Notify the insurance company that the association’s attorney is representing the insured (association).
  • Attempt to coordinate a re-inspection of the property with the association’s expert and the insurance company to review discrepancies between what the insurance company says is due and what the association’s expert says is due.
  • Make all attempts to settle claim amicably.
  • Do not “give in” just to settle a claim.
  • Take further steps as necessary after consultation with your attorney.

Taking the above steps will assist the association in preparing for natural disasters or emergencies, dealing with the immediate aftermath and properly processing insurance claims

 

Howard J. Perl, Esq.

Shareholder, Becker
Fort Lauderdale | bio

 

For many Homeowners’ Association (“HOA”) owners and board members, the words “turnover” and “transition” are two of the most anxiously anticipated yet mysterious terms in community association lingo. Often used interchangeably, the phrases generally refer to the period of time (or “triggering event”) in the development of the community at which the developer is required, either by the association’s governing documents or Section 720.307, Florida Statutes, to relinquish control of certain rights and exemptions as it relates to the Association’s operation and management of the Association’s property. While many HOA governing documents define the “turnover date” differently, as a matter of Florida law, the transition of association control from the developer to the owners of the association begins when the non-developer members of an association are entitled to elect at least a majority of the members of the board of directors of the association (Section 720.307(1), F.S.). Pursuant to Chapter 720, Florida Statutes (the “HOA Act”), members are entitled to do so by law when one of the following events occurs:

  • 3 months after 90% of parcels in the community have been conveyed from the developer to owners
  • Event or date provided by the governing documents
  • Developer abandonment of the responsibility to maintain and complete the community amenities and infrastructure
  • Developer filing a suggestion of Chapter 7 bankruptcy
  • Developer losing title to property through foreclosure or deed-in-lieu of foreclosure
  • Appointment of receiver by circuit court

Section 720.307(4), F.S., requires the developer, within 90 days of turnover, to deliver to the new board various documents, including but not limited to all deeds to the common property owned by the association, original copies of the association’s governing documents, permits, contracts, insurance policies and financial records since the inception of the association. Although the HOA Act requires the developer to “turn over” certain documents and items to the owner-controlled association, there is actually very little in the way of developer rights and reservations that a developer must relinquish after turnover, especially if not specifically required by the language of the association’s governing documents.

For example, a HOA declaration may contain language requiring the owner-controlled association to obtain the express written consent of the developer prior to any amendment to the declaration which affects that developer’s rights, even after the developer has turned over the association. Or, the declaration may grant to the developer the exclusive right to construct improvements within the community for “so long as Developer owns any Lot in the community” regardless of the turnover date. To the chagrin of many association boards, there may also be language in the governing documents which categorically exempts developer-owned lots from any obligation to pay any assessments (even after the developer has completed construction on the lot and is using it as a rental property!).

The ultimate question for many associations is: “If the developer has turned over the association, shouldn’t they have to turn over all of their rights in the community as well?” After all, many association members find it difficult, if not impossible, to effectively maintain and improve their home, specifically, and to operate and manage the community, generally, while the non-owner employees of an often out-of-state multinational corporation control the ins-and-outs of their neighborhood.

It does appear, as evidenced by the language of Section 720.3075(1), Florida Statutes, that the Florida legislature has considered the issue of developer-rights after transition. However, it is arguable whether this particular section of the HOA Act goes far enough in ensuring the protection of homeowners and their owner-controlled associations after developer transition. Section 720.3075(1), Florida Statutes, expressly prohibits any clause in the association’s governing documents that has the effect of: (a) allowing the developer to unilaterally make changes to the HOA documents after transition, (b) prohibiting or restricting an association from suing the developer, or (c) allowing the developer to cast votes in amount exceeding one vote per residential lot. Undoubtedly, each of the aforementioned rights are crucial in helping the association to “pick up the pieces,” after developer turnover. However, when the documents reserve rights such as the developer’s unilateral authority to make committee appointments or restrict vendor access to the community, it often leaves the board’s hands tied to deal with the day-to-day issues that quickly begin to arise in a new owner-controlled development.

Among the first things an HOA board post-transition should do is consult with the association’s attorney before, during and after the transition process in order to ensure that (1) the owner-controlled board is aware of its statutory and contractual obligations to the association’s members and (2) the developer has timely met all of its turnover obligations. This is especially important for communities where there might be a claim for construction defects or funding deficits. During those initial post-transition conversations with the board’s attorney, one of the second action items is to consider amending the governing documents to better reflect the post-transition community. This does not mean amending the developer completely out of each of the governing documents. To the contrary, the board might consider amending the documents in such a way that authority is shared between the association and the developer until the developer no longer owns property in the community; after which time, all authority is automatically vested in the association. Lastly, the board should solicit the input and assistance of the community-at-large. Many HOA boards have appointed an owner-led “Governing Documents” review committee which informs the board and the association’s attorney of owner concerns, recommendations, and suggestions throughout the amendment process.

The transition period can seem overwhelming and unwieldy for many HOA boards; however, it does not have to be. New owner-controlled HOA boards would be wise to begin the document review process early in order to determine how they can most effectively transition their community from simply another “development” to a place that looks and feels like “home.”

 

Shayla J. Mount

Attorney at Law, Becker
Orlando | bio

 

In many ways, the managing and operating of a condominium association is akin to operating a business. A primary similarity is the importance of careful and accurate financial planning and budget preparation. The board of directors of an association has fiduciary duties to its members. By paying close attention to the legal and technical requirements of condominium association budget preparation, the association can better assure its members of a smooth-running fiscal year ahead.

The legal and technical requirements of condominium association budgets can be found in Chapter 718, Florida Statutes (the “Condominium Act”) and Section 61B-22 of the Florida Administrative Code. An association’s bylaws may also contain certain financial requirements to which a board and/or budget committee should pay attention. Although the statutory and code requirements apply to all condominium associations, there is no one-size-fits-all for budget preparation. The intricacies of the budget will differ based on a number of factors, such as the size of the condominium, ongoing and upcoming projects, various maintenance obligations, etc.

The budget will cover one fiscal year, which typically tracks the calendar year. However, the association’s bylaws may indicate a different twelve-month period as its fiscal year. The important part is knowing when the fiscal year begins so that the board can ensure plenty of time for planning. For example, many associations which have a fiscal year that follows the calendar year begin planning their budget in the summer months in order to have a proposed budget by November. An additional time requirement to be aware of is that any meeting at which the proposed budget will be considered requires 14 days statutory notice. However, your association bylaws may require a longer notice, such as a 30 days’ notice of a budget meeting. If your bylaws require a longer notice (such as 30 days) rather than the statutory 14 days’ notice, you must follow the bylaw notice requirement. The notice must include the date, time, and location of the budget meeting as well as a copy of the proposed budget. The completed notice must also be posted in a conspicuous location on the property at least 48-hours before the meeting. Although the budget meetings must be opened to all members, the board is generally authorized to adopt the budget without a vote of the owners.

As for what goes in the budget, it is divided into two main sections: an operating budget and a reserves budget. Again, similar to a business, an association’s operating budget displays the costs of the day-to-day operations of the association. This means that this section reflects reoccurring monthly and annual expenses. The operating budget may include, for example, expenses for management fees, recreational facilities rent, insurance, and taxes. There are certain items that must be contained in the budget pursuant to Section 61B-22 of the Florida Administrative Code, such as the beginning and ending dates of the period covered by the budget, all estimated common expenses or expenditures of the association including the categories set forth in Section 718.504(21)(c), Florida Statutes, and other items. The total assessment for each unit type according to the proportion of ownership should also be included in the operating budget, either on a monthly basis or for the period for which assessments will be due (e.g., if the association collects quarterly assessments). A key point to remember about the operating budget is that the money budgeted is not restricted to the particular purpose specified on the adopted budget. If necessary, the association board may use its business judgment to spend money designated for one purpose for other purposes.  

The second section of the association’s budget is the reserves budget. The Condominium Act requires the association to maintain reserve accounts for capital expenditures and deferred maintenance. A capital expenditure is the purchase or replacement of an asset whose useful life is greater than one year. Deferred maintenance is any maintenance that is performed less frequently than a year or results in maintaining the useful life of an asset. This is distinguishable from routine maintenance, which needs to be included in the operating section of the budget. The Condominium Act also specifies that the reserves must include roof replacement, building painting, and pavement resurfacing, regardless of the amount of the maintenance or replacement cost. The association is also obligated to include any other item that has a deferred maintenance expense or replacement cost that exceeds $10,000. Unlike the operating funds which are not restricted to a particular purpose, reserve funds must be used for their intended purpose, unless a majority vote of the members is obtained to use the funds for other purposes. This means that the board cannot use reserve funds designated for one purpose to cover an unexpected expense without an approval vote.

Although as stated above, a board generally has the authority to adopt the budget without a vote of the membership, the Condominium Act does provide the members with two exceptions. First, the members can vote to waive reserves or partially fund reserves. The board can put the reserves question up to a vote if it so chooses. If no vote to waive or partially fund reserves is taken or not enough members vote to do so, the board must adopt the budget with fully funded reserves.

The second time at which a membership’s vote may be taken is if the board adopts an annual budget which requires assessments exceeding 115 percent of the assessment. At least 10 percent of the members must submit a written request for a special meeting of the owners to consider a substitute budget within 60 days after the adoption of the annual budget. A proper meeting notice must be sent out, and a membership meeting will be held. If there is not a quorum present at the meeting, or if the substitute budget is not adopted, the previously adopted annual budget remains in effect.

The ins and outs of preparing a condominium association budget can be complex, and association counsel should be consulted when needed. The board should begin early to assess the current financial picture of the community as well as its long-term financial needs and goals.

 

Karyan San Martano

Attorney at Law, Becker
Ft. Lauderdale | bio

 

What a year. Because of COVID-19 issues, associations have dealt with owners working from home, children remote learning, contractor issues, common area issues, the pool, the gym, the visitors, the cleaning, the quarantine, the masks, and so on. Quite a year indeed. Many associations have spent more time speaking with their attorney, and hopefully insurance agents, than they would have liked to. But along with all the other lessons, dealing with a pandemic has taught associations, perhaps the most important one in the long run will be – know when to contact your professional.

Of course, it is easy to determine when to contact your attorney when the association has a contract dispute, has been sued, violations, problem owners, problem tenants, etc. But there are other, not so obvious times as to when an association should contact its attorney. We will get to those in a bit. But what about other association professionals? When should an association contact its accountant, its insurance agent, engineer? Let’s discuss some of these scenarios.

Accountant

Your association should be working with an accountant that specializes in association work. There are many nuances in dealing with condominium, cooperative and homeowner associations, especially in regard to what forms to file, how to present the year-end financial statements, including statutory required information, etc. How will pre-paying a loan affect the association’s tax filing status? Are surplus funds taxable? Can the association sell a unit it owns via foreclosure and make a profit? Is that profit taxable? These are all questions that should be discussed with your association accountant before the association takes action on the questioned items. The response from your accountant may allow the association to make a more informed decision as it pertains to how such decisions affect the association’s year end statement and taxable items. The association should be in communications with its accountant as needed, and certainly more than once a year, especially when it is time for the year-end report. Utilize your accountant when assessing the above issues.

Insurance Agent

The association insurance agent should be involved in many aspects of your association. If the only time you hear from your insurance agent is when it is time for the annual renewal, the association should consider a new agent. Your insurance agent should proactively be working with management and the board to reduce risks in the community. Your agent should inspect the property at least once a year to identify risks and advise the association how to eliminate or mitigate such risks.

Large association contracts (roof repair/replacement, painting, concrete restoration, air conditioning, cooling towers, renovations, etc.) typically have association insurance requirements as well as indemnification provisions. These contract provisions should be sent to your insurance agent for review and comment before any such contact is signed (of course they should be reviewed by your association attorney as well). The contract may call for insurance the association currently does not have, or indemnification requirement specifically excluded by the association’s current policies. If the association signs a contract that contains insurance requirements or indemnification that the association’s existing polices do not cover, in the event of a claim, the association may be paying out of pocket for such claims. If the association is paying out of pocket to defend a contractor for damages or injury caused by the contractor, such costs can get very high very quickly. Always have your insurance agent review the insurance and indemnification provisions of these types of contracts after your association attorney has made any revisions he or she deems necessary.

Finally, you may want to contact your insurance agent in regard to social events. If the association plans on serving alcohol, such as at a holiday event, do you have insurance for that? What about allowing others to serve alcohol when a social room is used by the owners for an event – does the association have insurance for that? Are you inviting the public in for an event? Does the association have insurance for that?

Engineer

Most condominium and cooperative associations have engaged an engineer from time to time, whether to prepare specifications for a job or to oversee large construction or renovation projects. But there are other times an association may want to utilize an engineer.

The roofing company will tell you they will supervise the roof installation. The painting company will tell you they will inspect the paint job. The general contractor will tell you they will inspect the concrete restoration work. And they all will. So why should as association pay an engineer to inspect and oversee such work? I would hope the answer is obvious. No disrespect to any of the aforementioned contractors, but an association should always have its own engineer overseeing such work. The association engineer works for the association; the inspectors from the various companies work for the company. An association should always factor in the cost of its own engineer when planning the costs for such large projects.

There are other times an association should utilize its engineer. If your association is approving owner renovations through an architectural control board (“ARB”) or other similar body, or even just the board, generally board members are not qualified to review plans. If an owner is installing a new floor or changing out a door, an engineer may not be necessary; when an owner is making structural changes in a unit, combining units, installing a pool, adding an addition, etc., the association should engage an engineer to review all plans and inspect the work to insure it is done according to the association approved plans. Generally, an association can pass such costs on to the owner, but you need to check with your association attorney to determine if any amendments or rules must be enacted to do so.

Attorney

As you can see from the above information, there are many times an association should consult with its professionals. Typically, the attorney is the one associations consult with the most. I am not exaggerating when I tell you I have some clients I am in contact with on a daily basis. There are many factors at play when considering when to contact the association attorney – manager experience, board experience and involvement, age of the association, etc. Some associations contact their attorney regarding every violation or violation letter. Other associations only contact their attorney when they have been sued. There is no one size fits all.

Any large contracts should be reviewed by your attorney. Does that mean the attorney needs to review the contract for a $5,000 water heater? Perhaps not. But be wary of one page “proposals” contractors ask you to sign; be wary if asking for 50% or more down (never sign such a contract without attorney review); be wary of signing any proposal that is valid “today only” or “this week only”; and never sign an AIA contract before your attorney has reviewed the contract.

All requests for a reasonable accommodation (handicap parking, emotional support animal, service animal, ramp, pool lift, etc.) should always be sent to the attorney for review.

If the association is considering denying a sale or lease application for any reason, consult with your attorney before the association denies the transaction.

If there are any questions on official record requests, or written inquiries, contact your attorney. Rule interpretation. Guest interpretation. Vehicle towing questions. Employee questions. Document interpretation. Consult your association attorney for all of these questions before the association makes a decision that may require your attorney to untangle later.

Finally, please do not make the mistake I see all too often. The association sends the attorney a significant contact for review.  The attorney diligently reviews the contract, making notes as to revisions, addendum, etc. Turns to the last page of the contract – already signed by both parties. Asks the association why it is signed already – “we already signed it, just wanted to see if you had any comments”. Don’t be that association!

 

Howard J. Perl, Esq.

Shareholder, Becker
Fort Lauderdale | bio

 

Your condominium association elections for your Board of Directors are governed by the Florida Condominium Act (Chapter 718 of the Florida Statutes), and Rule 61B-23.0021 of the Florida Administrative Code.  Your association governing documents may also contain requirements for your election. Generally, these requirements are contained in the association’s By-Laws. With this in mind, there are a number of key deadlines and procedures that the association must follow to have a valid election.

The election should be held on the same day and at the same time as your association’s annual membership meeting.  Your governing documents may specify when the annual meeting will take place (such as, for example, the third Monday in January), or the documents may give the Board more flexibility in setting the date. The location for the meeting is specified in the governing documents, or if not specified, is required to be held within forty-five (45) miles of the condominium property. However, due to the pandemic, the location has become a more complicated issue. Many associations are now hosting their annual meetings virtually through platforms such as Zoom or Teams, or in a hybrid manner by setting a location for a limited number of masked attendees and/or to count paper ballots.  Whether an association decides to continue with the virtual component of its meetings once large gatherings are safe will depend on the association. As there is no size fits all, a conversation with your association attorney may be helpful.

Once the date is set, the board needs to be a wary of a number of deadlines. Sixty (60) days prior to the election, the association must send out a first notice. The first notice needs to contain the name and address of the association, and the date of the meeting. If the association has provided for and authorized electronic voting, this first notice is also required to disclose the procedure and deadline for members to consent to electronic voting. 

 

The association should not create a committee to nominate candidates, but the board may want to create a search committee to encourage members to run. Those who wish to be considered as candidates in the election must submit a notice of intent to run at least forty (40) days before the election is scheduled. The Florida Condominium Act contains a number of eligibility requirements for candidates. The candidate must not be delinquent in paying any monetary obligation to the association. The candidate must not have been previously suspended or removed from the board of directors by the Division of Florida Condominiums, Timeshares and Mobile Homes. Lastly, the candidate cannot have been convicted of a felony, unless the person’s civil rights have been restored for at least five years. The governing documents of the association may have other requirements for eligibility. A common requirement for many associations is that the candidate be a member of the association, or the owner of the unit. It is crucial for the association to ensure that the candidate is eligible by this fortieth day to be placed on the ballot. The placement of an ineligible candidate on a ballot is an error that has the potential to invalidate an election if discovered too late.

Candidates may wish to introduce themselves to their neighbors, especially in large condominiums or if the candidate is new to the community or has not previously been active in the community. To do so, the Florida Condominium Act allows candidates to submit one-sided information sheets, no larger than 8 ½ inches by 11 inches. This information sheet must be submitted at least thirty-five (35) days before the election. The Florida Administrative Code states that this information sheet may contain such information as the candidate’s education, qualifications or background. It is also crucial for the association to mail all timely received information sheets with the ballots and the second notice, as described below.

The number of vacancies on your Board may vary from year to year. For example, this may happen if your governing documents allow for staggered terms, wherein directors have terms which expire after different numbers of years. If there are not enough eligible candidates who give their notice of intent to run (in other words, there are more vacancies than candidates), the association is not required to have an election. Because these notices must be received forty days prior to the election, an association will know early on whether they will need to hold an election. If no election is necessary, the association will still hold its annual meeting on the date scheduled, and at this meeting, announce the names of the new board and the number of unfilled seats.

Between fourteen (14) and thirty-four (34) days before the election, the association must send a second notice to all members. This second notice is much lengthier than the first. It needs to include the agenda for the meeting, the candidate information sheets, the ballot, and two envelopes. These two envelopes consist of an “outer” envelope and an “inner” envelope, both strictly regulated by the Florida Administrative Code. This double envelope system allows the association to maintain the secrecy of the ballots and anonymity of the voter. The outer envelope will indicate the name of the voter, the unit number, and a signature space. The information should then be verified by the association, which can be done in advance of the meeting by an impartial committee. This is the time at which the association would check, for example, that the owner’s voting rights have not been suspended. The committee should not, however, open the envelopes prior to the meeting. The ballot will be contained in the inner envelope, which will have no identifying information. At the meeting, the envelopes will be separated  prior to tallying the votes so as to maintain secrecy.

The Florida Condominium Act requires that at least twenty (20) percent of the eligible voters in the community cast ballots for the election to be valid. This requirement is different than the requirement of having a quorum to hold various meetings. There is no quorum requirement for an election. Lastly, the election is decided by a plurality of votes.

There are a number of issues that may arise prior to, during, or even after your election. Your association attorney can guide you through the election process to ensure that your association is following all pertinent provisions of the Florida Condominium Act, the Florida Administrative Code, and your governing documents. 

 

Karyan San Martano

Attorney at Law, Becker
Ft. Lauderdale | bio

 

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

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