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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

 

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” –

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

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

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

 

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.

  3. 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.
  4. 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.
  5.  

    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.

     

  6. The Association can deny an EV installation, if there is proof that it will cause irreparable harm to the Association property.
  7. 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.

     

  3. Amend Governing Documents to address subsequent Unit Owner obligations and responsibilities for charging station maintenance and removal.
  4. 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.

     

  5. Engage an engineer or professional to assess the Association’s electric capacity prior to an influx of EV installation requests.
  6. 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