“Vaping” Rules Questioned

Q: We have a few people who “vape” at the swimming pool at our condominium. I complained to one of them once as the fumes were blowing in my direction. They pointed to the “No Smoking” sign posted at the pool and said “there’s no rule against this.” What do you think? (K.G. via e-mail)

A: While your neighbor’s actions certainly seem rude, whether they were (or will be) legally improper is a more complicated question. Generally speaking, restrictions on the free use of property are disfavored in the law, so the rule followed by the courts is that restrictions must be strictly construed.

Although I am not aware of any case precedents on point, I think “vaping” is different than “smoking” in the eyes of the law. However, just because the posted sign only deals with smoking, there may be other written rules that specifically address this issue. If not, you might want to suggest that your board look at updating the rules.

In my view, rules regulating (or even prohibiting) smoking on the commonly used common areas of a condominium would be given great deference by a court as far as the required legal element of “reasonableness.” I also believe that similar rules regulating “vaping” would be given the same treatment by a court.

I would also point out the Florida Clean Indoor Air Act prohibits smoking in indoor places of “work.” As that term is defined in the law, this will usually include the indoor areas of condominium and homeowners’ association common areas, such as meeting rooms and clubhouses. By virtue of an amendment to the Florida Constitution last November, effective July 1, 2019, “vaping” will be given the same status as “smoking” under the Clean Air Act. In other words, regardless of any Board rule on the topic, “vaping” in areas covered by the statute will be a violation of law.

Q: My condominium association is in the process of having its pest control company treat all of the units for insects. However, one unit owner will not give the association access to their unit and is stating that since it is private property, the association has no right to enter. Can the association amend the condominium documents to provide for a right of entry to the units?  (D.P. by e-mail)

A: I doubt that it is necessary for the association to amend its condominium documents regarding the right to enter units. Section 718.111(5)(a) of the Florida Condominium Act provides that the association has an irrevocable right of access to each unit during reasonable hours, when necessary for the maintenance, repair, or replacement of any common elements or of any portion of a unit to be maintained by the association pursuant to the declaration or as necessary to prevent damage to the common elements or to a unit.

Assuming that the declaration of condominium provides that the association has the authority to provide for pest control to the condominium property, including the units, the association has legal right to access all units for such purpose. Accordingly, while the association likely has the legal right to access the unit, if an owner is preventing access the association would have to take appropriate action to enforce its rights. There are arbitration decisions issued by the Division of Florida Condominium, Timeshares and Mobile Homes that have found that unit owners may not deny access by the association, nor may unit owners place conditions upon the association’s right of access to units. Therefore, if a unit owner is unreasonably preventing the association from accessing their unit for proper purposes, the association may be forced to take legal action in order to obtain such access. Although your association counsel should be consulted on the proper procedures, many associations also enact requirements for the posting of a key to all units, which has also been upheld by the Division.

Originally posted on floridacondohoalawblog.com. Written by Joe Adams is an attorney with Becker & Poliakoff, P.A.,

HOA Board Can Purchase Bulk Cable and Internet

Q: The board of directors of my homeowners’ association is considering a bulk contract for cable television and internet service for our community. The association has never previously provided cable or internet service to the residents. If the contract is signed, all of the owners would be forced to pay for the service as part of their assessments. Is this permissible without a vote of the membership? (E.E., via e-mail)

A: Section 720.309(2), the Florida Homeowners’ Association Act, states that if the governing documents authorize the association to incur the cost of communication services, information services, or internet services obtained under a bulk contract, such expenses shall be deemed an operating expense of the association.

However, even if the governing documents do not provide for these bulk services, the law states that the board can contract for bulk telecommunication services, and the costs of such services shall be an expense of the association. However, if the governing documents do not address such bulk service contracts, the board must allocate the cost of the bulk service on a per parcel basis, rather than on a percentage basis, even if the governing documents contemplate assessments being allocated on a percentage basis rather than a per-parcel basis.

Therefore, the short answer to your question is yes. The board of directors, without a vote of the membership, can enter into a contract for bulk services, even if the association has not historically provided such service. This law was first enacted in 2011, so there may be some room to argue about its retroactive application to communities created prior to that date.

The statute also provides that any such contact may be canceled by a majority vote of the voting interests present at the next regular or special meeting of the members of the association. However, if the vote is not taken at the next membership meeting, the contract is deemed ratified.

Chapter 718, the Florida Condominium Act, contains similar provisions regarding bulk telecommunication service contracts.

Q: Our condominium was originally 7 different associations who went through a “merger” into one condominium. Our biggest association is 48 units, and we have 242 overall. We have gotten conflicting information on whether the new website law applies to us. What do you think? (F.S., via e-mail)

A: It probably does not. A new Section 718.112(2)(g) was first added to the Florida Condominium Act in 2017.

That law required any association “with more than 150 units” to have a website. The law was amended in 2018. Among other changes (including deferring the effective date of the law to January 1, 2019), the statute was amended to apply only to associations managing a condominium with 150 units.

Based on the information you provided, it appears that you have 7 separate condominiums (not associations) operated by one corporation (the association) as the result of a “corporate merger.” Therefore, your association is what is known as a “multi-condominium association.” The new law would not apply to your association because although it operates more than 150 units in the aggregate, no single condominium has 150 units or more.

That does not mean that your association cannot have a website, it can. It does mean that you do not have to comply with all of the technical requirements of the new statute, including some detailed provisions on documents required to be posted on mandatory websites. In addition, if you do have a “voluntary website,” my interpretation of the law is that your “estoppel certificate” (the form people fill out before closings to make sure there are no unpaid maintenance fees) have to be posted on that website.

Originally posted on floridacondohoalawblog.com. Written by Joe Adams is an attorney with Becker & Poliakoff, P.A.,

Hoarders Present Difficult Challenges for Association

Q: Our condominium has a “hoarder” whose unit is filled with papers, newspapers, cardboard, plastic bags, and the like. I am worried about fire hazards and vermin infestation. Neither our board nor the manager are willing to do anything about this. Does Florida law provide me with any way to cure this situation? (H.R., via e-mail)

A: One line of inquiry is whether this person is over the age of 60 and/or has a disability; whether his unit is unsafe or unfit for human occupancy; whether he is also neglecting his health and hygiene, pets, and/or dependent children; and whether his failure to maintain the interior of the unit violates the condominium documents. Depending on the answers to these questions, there are several options you or your condominium association have to address this issue.

You or the condominium association may be able to report the unit owner’s self-neglect to the Florida Department of Children and Families (DCF). Florida law generally requires the reporting of known or suspected self-neglect or neglect of vulnerable adults, which include those over the age of 60 and those with disabilities, or children. DCF’s Florida Abuse Hotline receives reports 24 hours a day at 1-800-96-ABUSE or online at https://reportabuse.dcf.state.fl.us.

With the name and address of the unit owner, you or the condominium association can also request that a well-being check be performed by local law enforcement by explaining that there are concerns about the unit owner’s welfare and the habitability of his unit. Local law enforcement staff will then go out to the unit, knock on the door and, if no one answers, inspect what is visible from the outside. Depending on what is observed, local law enforcement may pursue a warrant for entry and to evaluate the unit owner. Further, to the extent the unit owner is over 60 years old or has a disability, or if dependent children reside in the unit, local law enforcement’s Special Victims Unit and/or DCF may also be consulted.

If the unit owner is failing to maintain the unit in a structurally safe and sanitary condition, local code enforcement staff may also be able to intervene. For example, Section 6-211 of the Lee County Land Development Code, incorporates the 1985 Standard Unsafe Building Abatement Code (“SUBAC”) by reference. Section 101.6 of SUBAC outlines maintenance obligations that if unfulfilled make a dwelling unsafe and unfit for human occupancy. To the extent the unit is not being maintained in good working order or in a sanitary condition, there may be a violation of SUBAC and local ordinance on which code enforcement staff can take action.

You or the condominium association could also seek the help and guidance of a local nonprofit organization that specializes in hoarding. While the local Department of Health generally does not have jurisdiction over hoarding or unhealthy conditions inside private residences the United Way of Lee, Hendry, Glades, and Okeechobee Counties, for example, and its social referral service can direct such concerns to the appropriate public or private agency. The United Way of Lee, Hendry, Glades, and Okeechobee Counties can be reached at 239-433-3900.

Condominium documents usually contain a nuisance provision prohibiting owners, lessees, and guests from using a unit in any way that unreasonably disturbs, is detrimental to, or is a nuisance to occupants of other units. This “catch all” language, at a minimum, may provide an opportunity for your condominium association to demand that the unit owner improve the conditions within the unit.

I recommend that you encourage your condominium association to speak with its legal services provider to assess how best to improve the condition of the unit and help the subject unit owner through one or more of these channels.

Originally posted on floridacondohoalawblog.com. Written by Joe Adams is an attorney with Becker & Poliakoff, P.A.,