Those Pesky Little White Balls

Living in a golf course community is the ultimate dream for many. However, a golf course address can equate to some rather nightmarish liability issues for many community associations. Those issues often stem from misdirected golf swings or “errant” shots.

There is no statutory law that governs golf ball liability. However, the Supreme Court of Florida has established that the driver of a golf ball is charged with the duty to exercise “ordinary care” for the safety of persons reasonably within the range of danger. Similarly, several other Florida courts have concluded that an operator of a golf course is not required to maintain the course in such conditions that no accident could possibly happen.

Nonetheless, according to such court rulings, the owner or operator of a golf course does have a legal duty to maintain the course in a reasonably safe condition, commensurate with the facts and circumstances that an ordinarily prudent person would generally exercise. Moreover, if a person knows of the existence of the course before moving into a golf course community, he or she is presumed to have “assumed the risk.” As such, generally speaking, that person cannot hold anyone liable for any damage or physical injury which may result from an errant golf ball.

The question of whether a community association can be held liable for errant shot damage or physical injury is dependent on several factors. If approached from a safety perspective, it is well-settled that a community association is charged with a duty of protection from foreseeable common element danger. Such duty arises because an association is usually held to a landlord’s standard of care regarding the common elements in its control. Additionally, the duty to protect against flying golf balls can also be compared to an association’s duty to protect its residents and invitees from foreseeable criminal acts.

Based on all of this, community associations are not automatically insulated from liability regarding errant golf balls. The potential for significant liability does exist. As such, an association’s governing documents and marketing materials should clearly provide that the association cannot be held liable for any damage or injury caused by golf balls hit from a community, or adjacent course. The disclaimer should also be included on the face of an association’s website and in periodic newsletters as well.

Finally, if an association is aware of errant golf balls flying into the community, it should also display signs to warn of the issue, given that the “open and obvious nature” of such a hazard may not always suffice to discharge an association of its duty to warn its membership and invitees of foreseeable potential harm. But, warnings do not necessarily discharge an association from maintaining its property in a reasonably safe condition. Thus, even if an association places warning signs regarding errant golf balls, it still has a duty to try to alleviate any known problems, in an effort to keep its premises safe.

Originally posted on floridacondohoalawblog.com and written by Astrid Guardado, ESQ

Some States are Protecting First Amendment Rights, Will the Sunshine State Follow Suite?

In 2012, the New Jersey Supreme Court ruled 5-1 that a condominium owner could place election signs on his front door and side window of his townhome over the objections of his association.

Wasim Khan, an oncologist who was a Democratic candidate for the Morris County Board of Freeholders, fought the Mazdabrook Commons HOA when they began fining him $25.00 a day for each day his election signs remained. That wasn’t the first time that Khan tangled with his association; they had previously fined him for his rose bush vines growing too high.

Khan was ecstatic over the Court’s ruling, saying “We won for the rights of a million fellow New Jerseyans and countless more across the U.S.”

Well, maybe not so fast here in Florida. Our State’s Supreme Court has not ruled on the issue of whether a private residential community’s governing documents can restrict signs without running afoul of the U.S. Constitution’s First Amendment protections which prohibit government from abridging the freedom of speech. Generally speaking, there would have to be some “tie in” between a private residential community and state action in order to have the First Amendment apply. Some people think that the fact that Florida condominiums are regulated by the State is sufficient to create that necessary state action but that theory has not yet been tested in our highest court.

In a Florida decision that arose from a Naples neighborhood, a homeowners association sued an owner who refused to remove a “For Sale” sign, which violated the restrictive covenants, from their front yard. The trial judge ruled in favor of the homeowner, finding the association’s rule to be an abridgment of free speech. Upon appeal, the appeals court sided with the association, finding that the association was not an arm of government, that there was therefore no “state action, and enforcement of the no-sign-in-the-yard rule did not violate free speech rights.  See Quail Creek Homeowners’ Association vs. Hunter.  Since the Quail Creek case involved what is called “commercial speech”, which is afforded less protection than pure “political speech”, it is perhaps debatable whether the same result would have happened if the test case was a political yard sign.

Meanwhile, the State of California has also taken steps to safeguard the rights of those living in common interest ownership communities to express themselves via signage. A 2011 law sponsored by Senator Christine Kehoe even went so far as to ensure that tenants in these communities could display political signs. There were some limitations on this right including the requirement that such signs be no larger than 6 square feet and that the signs not be installed more than 90 days prior to the election or vote and must be removed no later than 15 days after such election or vote. Moreover, the signage must relate to a specific election, referendum, recall or issue before a public body and not just contain a general political sentiment.

A ride through my own HOA last weekend revealed one brave soul who had installed a small sign for a local candidate near his mailbox. Our community’s covenants ban all signs except the statutorily-permitted security signs. Sure enough, the latest issue of our HOA Newsletter contains a bolded section reminding us all that signs are not permitted including political signs.

What are your thoughts about private covenants and political signs given the upcoming midterm elections in November? Do such restrictions save us all from visual clutter and our neighbors’ questionable political choices or do they abridge our freedom of speech? Will Florida follow the examples set by other states or are we still a long way off from that happening?

10 Fun Ways to Engage Your Residents

Building great relationships with your residents will lead to lease renewals, positive online reviews, referrals, and less angry phone calls. There are plenty of fun, cost-effective ways you can show your residents you care about them and their experience at your property. Here are our top 10 ideas to boost resident engagement without breaking the bank.

1. Complimentary Gift Wrapping Station

Have an unused corner of your lobby area? Create a handy little gift wrapping station that your residents will swoon over! It is a great opportunity to check in and connect with your residents while they are wrapping gifts. Also, because you’ll need to stock it with different wrapping paper and ribbons depending on the time of year, it will nicely complement your holiday lobby decor. This unique and thoughtful, low-cost amenity will set your property apart from the rest! The Home Depot has a helpful blog with tips and suggestions for creating your own gift wrapping station.

2. Community Garden

Community gardens tend to attract higher-income residents, Baby Boomers, and Traditionalists, so depending on the demographics of your community, a garden may be the perfect addition to your property. First, consult a professional landscaper to develop an accessible layout. Also, consider adding a compost bin to offset waste and enrich the soil naturally. Once your garden is up and running, host a “green thumb” contest, and post a picture of the winning plant, fruit, or vegetable on the community bulletin board, newsletter, and facebook page. Read this awesome MultifamilyBiz article for more info on starting your own community garden.

3. Trivia Night

Trivia nights are becoming increasingly popular at bars, restaurants, and now, multifamily communities! Find a location on your property that will fit a few tables and chairs (maybe your lobby, or lawn area) and grab some beers, sodas, pretzels, M&Ms, notepads, and pencils. Enlist your wittiest staff member as the emcee for the night and find your trivia questions online, from a board game, or a book. Here are a few sites with a bunch of fun questions you can use:

Free trivia questions and answers.

More free trivia questions and answers.

Trivia questions you can buy.

Don’t forget to announce your Trivia Night on your community board, newsletter, social media, and email blasts. Your residents will love testing their knowledge, getting to know their neighbors, and most importantly YOU for organizing a thoughtful and enjoyable event.

4. Ice Cream Social

This idea is so sweet and simple, but there are certainly ways to spice it up! Everyone loves ice cream, but you can kick it up a notch by bringing in a local gelato cart vendor, or setting up a banana split bar. Maybe consider moving away from the idea of ice cream completely, and host a build-your-own s’mores bar (especially if your property has a fire pit) with unique ingredients to add like Nutella, peanut butter, oreos, or chocolate chip cookies (to use instead of graham crackers). As with any event you organize, don’t forget to announce it on every community platform available so you get the most bang for your buck. Sweet treats are the best opportunity to connect with your residents, and show them some love.

5. Interior Design Consultations

Not everyone is Martha Stewart, some residents may need a little help in the creativity department. Encourage them to make their space feel like home by offering interior design consultations. Decorist is a popular startup that offers custom designs for $299 per room with no hidden costs. Laurel & Wolf and Havenly are similar platforms that offer room design services starting as low as $79 per space. Hiring an interior design service would be a great draw for new residents, or a sweet way to reward loyal ones who sign longer lease agreements.

6. Scavenger Hunt

There’s no better way to bring out your residents’ “inner-child” than a good old fashioned scavenger hunt. You can purchase a bunch of ping pong balls or plastic rings, or rubber duckies like Camden Living did and hide them all over your property. When your residents find them, they can turn them into the office to claim a prize. This gives you the chance to chat with them, and maybe hand out some branded gear. Some argue the best scavenger hunts involve riddles! If you go this route, each riddle they find leads them to another riddle until they finally reach a prize (hidden mimosa bar maybe?). Feel free to use the following riddles, and/or come up with your own!

 

Your managers work to get lots of things done

Applications and leases and all kinds of fun

They sometimes will sit at their desk in their chair

Low and behold, your next clue is there

Treasure hunt clue answer: Under your office chair

 

I’m stuck with articles, ads, and info

Lots of things that people want you to know

Papers and invites just hanging around

Somewhere up there the next clue can be found

Treasure hunt clue answer: Notice board

 

Fire me up and I’ll get nice and hot

During fun summer nights I’m a coveted spot

Wipe me down when you’re done and don’t be a slob

But enjoy your burgers and corn on the cob

Treasure hunt clue answer: BBQ

 

7. Doggie/Kitty Photo Contest

If your property is pet friendly, let your residents show off their fur babies and compete for a prize. You can create categories like, funniest pet photo, sleepiest pet photo, happiest pet photo, etc. Just have your residents post their entries on social media using your hashtag, and then re-post the winning photos on your social platforms. People are bound to connect with like-minded pet parents in your community and plan playdates. When your residents know and love their neighbors, the number of complaints will decrease and number of lease renewals will increase.

8. Hashtag Contest

If your community doesn’t allow pets, you can still run a successful UGC (user-generated content) hashtag contest. Do you have a current hashtag for your management company or property? Build brand awareness, and increase resident engagement by running a few social media contests throughout the year. Maybe during the holidays, ask your residents to post a picture of the wreath on their door using your hashtag, and the most creative wreath photo wins. Or if your property has a defining sign, gate, or water feature, encourage your residents to post fun pictures posing with that feature (and be sure to use your hashtag!). After your contest is over and prizes have been distributed to all of your winners, don’t forget to share and re-post. This will make your residents feel special and involved in the community; it also gives you great content for your social platforms.

9. Car Wash Service

Hire a local or mobile car wash company like Spiffy to come to your property and get your residents’ cars spic and span in the parking garage or parking lot if you have one. Set up a waiting area with beer and snacks for residents to enjoy and mingle with each other while their cars are detailed.

10. Leadership Lectures

If you have solid relationships with your residents, and know what they do for a living, ask if they would be interested in sharing their expertise with the rest of the community. Host a monthly or bi-annual lecture in your rec center, or common area. Do you have a CPA at your property? Ask them to share tips and best practices during tax season. Maybe there is a nurse or doctor would be willing to answer general health questions, and share new medical practices. They may be willing to speak for free, or incentivise them with a gift card, $100 off next month’s rent, etc.

Take a look at your budget, analyze your community demographics, and conclude what the most successful resident engagement event will be for your property. What will be a hit with your residents? Please let us know if you have any other tips for resident engagement, or if you attempted any of our suggestions, we want to hear how they turned out.

 

Originally posted on www.paylease.com written by Victoria Rees

New Term Limit Law Not Retroactive

Q: In one of your recent columns, you wrote about a new law that imposes term limits of eight years on condominium directors. Is this retroactive? (S.L. via e-mail)

A: In my opinion, no. Of course, lawyers’ opinions are just that, and what the courts have to say is what ultimately counts.

My interpretation is based on a long-standing rule of statutory construction. Florida courts have consistently held that condominium legislation is not to be retroactively applied, unless the legislatures evinces an intent that it be applied retroactively. There are certain exceptions to this rule for “procedural” and “remedial” changes to the statute.

If legislation is intended to be retroactively applied, then a second level of analysis needs to take place which largely focuses on constitutional issues. However, in the case of the new “term limit” law, there was no statement of retroactive application in the new law, so no need to consider constitutional implications.

Of further relevance is the fact that a similar law was enacted a couple of years ago (dealing with term limits on two-year terms) and most attorneys conversant in this field of law, as well as the state agency charged with enforcement of the law, took the position that it was likewise was not to be retroactively applied.

However, internal term limits contained in an association’s bylaws have been legal for a number of years, and would still be effective regardless of the recent statutory changes.

Q: My homeowners’ association recently hired a management company. While the decision to hire the management company was discussed at a series of board meetings, there was no vote by the membership for this significant cost to our association. Can the board simply hire a manager without a vote of the owners when we’ve never had one before? (J.C. via e-mail)

A: Generally, the decision to hire a management company is a decision for the board of directors. That is because the governing documents for most associations either grant this specific authority to the board, and/or provide that all corporate powers can be exercised by the board except where the statute or governing documents specifically require a members’ vote.

Typically, members are afforded the right to vote on amendments to the governing documents, election of the board of directors, the waiver or nonscheduled use of certain reserves funds, and other items as set forth in the statute or the community’s governing documents. Unless there is some specific contrary requirement in your governing documents, which would be unusual (though I do see it from time to time), the board of directors can retain or disengage a manager or management company, without a vote of the membership.

Q: My condominium association holds a number of social events throughout the year and in order to help pay for the cost of these events, our social committee holds various types of fundraisers including raffles and “50/50 drawings.” Some owners are now stating that these drawings are “illegal” and that someone could go to jail. Is this true? (D.G. via e-mail)

A: Your question is timely in light of recent news reports regarding a local political candidate facing allegations that they broke the law by running a “50/50 game” at a campaign event. While I am not familiar with the details of those allegations, and how the law may or may not apply there, it does present an opportunity for community associations to review the issue.

Chapter 849 of the Florida Statutes regulates gambling in Florida. Section 849.09 specifically prohibits a person from promoting or conducting any “lottery for money or anything of value.” This section of the law essentially prohibits all raffle-type games including “50/50 drawings.” While there are exceptions for raffles conducted by certain charitable organizations, these exceptions do not apply to community associations.

Violation of Chapter 849 by holding a raffle or lottery is a first degree misdemeanor for the first offense. Subsequent violations can result in felony criminal charges.

Originally posted on floridacondohoalawblog.com and written by Joe Adams is an attorney with Becker & Poliakoff, P.A., Fort Myers. 

FL Division of Condos Proposes Greater Financial Penalties on Associations

Florida condominiums, cooperatives and, to a lesser degree, homeowners’ associations are subject to the imposition of fines and penalties by the Division of Florida Condominiums, Timeshare and Mobile Homes (“Division”) for a variety of mistakes and missteps.  The Division plans to pass sweeping changes to Chapter 61B-21 of the Florida Administrative Code which may go into effect in the coming weeks.

Why is this important for your Board to know?  Because many of the actions listed below occur on a regular basis in many associations that can otherwise be described as high functioning communities.

The category of minor violations has been narrowed while the category of more egregious violations has been expanded. The following violations are considered minor violations for which a Notice of Noncompliance will be issued:

  • Failing to disclose the beginning and ending dates of the period covered by the proposed budget.
  • Failing to disclose periodic assessments for each unit type in the proposed budget.
  • Distributing candidate information sheets consisting of more than one page.
  • Verifying the outer envelope information BEFORE the date of the election.
  • Failing to disclose the amount required to fully fund each reserve account as of the end of the fiscal period covered by the annual financial statements.
  • Failing to disclose the method of allocating income and expenses in the annual financial statements or turnover audit.

The following violations will result in a MINIMUM total penalty of $10-$30 PER UNIT or $1,000 whichever amount is greater. In a high rise with 350 units, a penalty for one of the following violations could cost $10,500.  As you can see, some of the violations below are much more egregious than others.

  • Failing to maintain complete accounting records.
  • Failing to maintain separate accounting records for each condominium.
  • Not passing assessments sufficient to meet expenses.
  • Collecting assessments less frequently than quarterly.
  • Not apportioning assessments correctly amongst multiple condominiums.
  • Failing to charge interest on past-due assessments.
  • Improperly excusing the developer or other owners from paying assessments.
  • Improperly amending the Declaration of Condominium to change the percentage by which the unit owners share the common expenses.
  • Imposing improper use fees.
  • Imposing late fees, transfer fees or security deposits without proper documentary authority to do so.
  • Failing to maintain adequate fidelity bonding.
  • Compensating board members or officers without proper documentary authority to do so.
  • Improperly allocating reserve requirements.
  • Failing to include a separate budget for each condominium operated by the Association as well as a budget for the Association.
  • Failing to obtain competitive bids fore each contract that exceeds 5% of the association’s budget.
  • Imposing fines and suspending use rights without proper notice and an opportunity for a hearing.
  • Allowing an ineligible person to fun for the Board.
  • Failing to adopt a budget each year.
  • Commingling reserve funds with operating funds.
  • Using Association funds for items other than proper common expenses.
  • Contracting with a service provider owned by a board member.
  • Using an association debit card for any association expenditure.
  • Failing to hold an annual election. The caveat here is that if you do not have more candidates running than open seats or if you do not have at least 20% of your eligible voters cast a ballot you will not have an election.
  • Failing to use ballots or voting machines.
  • Failing to provide space for the name, unit number or signature of the outer envelope used for elections.
  • Failing to provide timely first and second notices of the election.
  • Using improper nomination procedures in the election.
  • Holding the election at a time and place other than the annul meeting.
  • Failing to provide a candidate with a receipt for written notice of his or her candidacy.
  • Permitting ineligible candidates to be listed on the ballot.
  • Allowing members to rescind or change their previously cast election ballots.
  • Including comments from the board about election candidates in the Second Notice of Election and accompanying documents.
  • Not using an impartial committee to count the ballots.
  • Altering or editing candidate information sheets. The caveat here is that if a candidate submits a double-sided candidate information sheet or a candidate information sheet that is more than one page long, that candidate must be told that only one side of a page will be distributed.
  • Failing to place the inner envelope in a separate receptacle before being opened.
  • Not using uniform ballots.
  • Not checking the outer envelopes against a list of eligible voters.
  • Counting ineligible ballots
  • Failing to count properly cast ballots.
  • Opening outer envelopes prior to the election meeting or opening outer envelopes outside the presence of unit owners.
  • Failing to maintain official records.
  • Requiring a unit owner to pay a fee for access to association records.
  • Failing to timely provide access to records or failing to allow scanning or copying of records.
  • Improperly purchasing a unit at a foreclosure sale.

The foregoing list of violations is not inclusive and, in addition to the penalties established by the rule chapter, the Division may also seek to recover any other costs, penalties, attorney’s fees, court costs, service fees, collection costs and damages allowed by law. . There are a lot of other areas where a volunteer board can unknowingly go astray and wind up being monetarily penalized as a result. The changes being proposed by the Division to 61B-21.003 F.A.C reflect a shift in the Division’s focus from education to enforcement. While both are important, education helps boards avoid the types of infractions which result in fines and penalties.

The Division has posted notice of a Public Meeting/Workshop Hearing for Monday, August 13th from 9:30-11:30 am in Tallahassee. I realize that most of you reading this blog are not likely to make it up to Tallahassee for this hearing.  However, you can submit a comment regarding the proposed rules by sending an email to the following email address which has been set up for this purpose:

fctmh.rulehearing@myfloridalicense.com

The imposition of fines against associations will have a financial impact and may result in the community looking for ways to hold individual board members accountable for the costs to the association. Do not expect insurance to cover fines or penalties.  Given these new enforcement parameters, I am urging associations to consult with their management professionals and experienced legal counsel to ensure that they are operating within the requirements of the Statute and Administrative Code.  Particular attention should be paid to fiscal operations (budgeting, calculating and handling of reserves, collection of assessments), imposing fees of any kind other than assessments, elections and board member conduct and the awarding of contracts.  Serving on your board of directors is almost guaranteed to be a thankless job but you should try to avoid it also becoming a costly job!

 

Originally posted on communityassociationlawblog.com and written by Donna DiMaggio Berger

Putting the Puzzle Together Regarding Insurance Coverage and Exclusions

In those pages and pages of insurance documents detailing your available insurance coverage you’ll also find exclusions explaining what is not covered in your insurance policy. There might, however, be some exceptions to those exclusions that should keep the claim from being excluded under the policy. Confused yet?

That knotted paradigm is illustrated in a case that was decided by the Florida Supreme Court. In John Robert Sebo v. American Home Assurance Company, 208 So.3d 694 (Fla. 2016), the Florida Supreme Court was asked to determine whether coverage existed under an all-risk policy when multiple perils combined to create a loss and at least one of the perils was excluded by the terms of the policy. The court concluded that coverage did exist in such a scenario. In other words, the Florida Supreme Court decided that insurance companies should not deny coverage for property damage just because it had more than one cause so long as the policy covers at least one of the causes.

Let me explain. John Sebo, the insured homeowner, had an insurance policy that covered rain and hurricane damage but not damage from construction defects. His house was damaged during Hurricane Wilma. The investigation showed the damage was because of the rain andconstruction defects.

The Florida Supreme Court noted that it was “confronted with determining the appropriate theory of recovery to apply when two or more perils converge to cause a loss and at least one of the perils is excluded from an insurance policy.” Two competing theories had to be analyzed in reaching a final decision. The first, the efficient proximate cause (EPC) theory provides that the peril that set the other one in motion is the cause to which the loss is attributable. This meant that in Sebo a trial would have been required to determine which peril was set in motion first.

However, the Florida Supreme Court rejected the application of the EPC theory, preferring the application of the concurrent cause doctrine (CCD).  Under this theory, coverage may exist where an insured risk constitutes a concurrent cause to the loss even when it was not the prime cause for the loss.

Ultimately, the Court in Sebo concluded that there was no reasonable way to distinguish the probable cause of the property loss since the rain and construction defects acted in concert to create the destruction. The Court then looked at the plain language of the insurance policy and found that the policy’s plain language did not preclude recovery.

This confusing paradigm is also illustrated in the case of Bartram, LLC v Landmark American Insurance Comp., 864 F. Supp. 1229, (N.D. Fla. 2012).  That case centered on a dispute between an apartment complex and several insurance carriers. The apartment complex sustained significant water damage caused by faulty workmanship in the building’s construction. While the apartment owners acknowledged that the costs to repair the faulty workmanship itself was not covered, the water (a Covered Loss) that infiltrated and damaged the building should be covered because of the exception. Of course, the insurance companies disagreed and argued that the apartment owners were not entitled to coverage. Ultimately, the Court disagreed with the insurance companies and concluded that the apartment owners were entitled to insurance coverage.

These cases (Sebo and Bartram) illustrate the importance of understanding not just your available insurance coverages but also your applicable exclusions. While you may have coverage for, say, property damage from a hurricane, the insurance company may argue that coverage does not exist as a result of some exclusion in your policy such as faulty workmanship or wear and tear. While the cases I’ve discussed here suggest that in a scenario like that you should be afforded coverage, the fact remains that your insurance company may deny coverage as a result of the exclusion contained in your policy and its “no” should not be readily accepted. Understanding what is and is not covered under a policy is key, as is having an attorney experienced in dealing with carriers in these situations.

Originally posted on floridacondohoalawblog.com and written by Hugo Alvearez ESQ

Can or Should Community Associations Impose Firearm Regulations through Governing Documents

The recent senseless slaughter of school children in Parkland, Florida has fueled and reignited the long-simmering debate about gun control in our society. Community associations are not immune to violent tragedies, including gun deaths.

We are all familiar with the case involving Trayvon Martin, a teenager who was shot and killed by a neighborhood watch volunteer. In 2012, David Merritt, president of the Spring Creek Homeowners Association, called a homeowners association meeting to order. Approximately 30 minutes later, Merritt, and former president of Spring Creek Marvin Fisher, would be fatally shot by their neighbor, Mahmood Hindi. The dispute between Hindi and Spring Creek involved an unapproved driveway and fence installed by Hindi. Hindi was charged with murder, but committed suicide in jail prior to his trial. Other examples of violence within mandatory membership communities can readily be identified.

It is not the intention of this article to argue whether additional governmentally-imposed gun control is desirable, and if so, what that would entail. The focus today is whether community associations can, and should, impose firearm regulations through their governing documents.

While the “can” issue is a bit complicated, the “should” issue is perhaps easier to discuss. In general, community associations do not owe residents the duty to prevent criminal actions of third parties. However, that rule of law has been swallowed up by exceptions, mostly focusing on whether the association knew or should have known of the potential for third party violence.

In my view, one of the worst things a community association can do is impose regulations aimed at personal safety and then not enforce them. For example, let us assume that a board adopts a rule prohibiting lawfully licensed persons from carrying concealed weapons into association meetings. Let us also assume for the sake of discussion that such a rule would be upheld as legally valid. How would the association enforce such a rule? I doubt most organizations are going to install metal detectors at the door of their meeting room. If an incident occurs notwithstanding such a rule, it seems to me that the association is in a much worse legal position than simply not having had a rule at all.

As to the “can” aspect of the equation, community associations are not governmental entities for the purpose of the protections found in the United States Constitution, its Bill of Rights, or other amendments to the Constitution. On its face, the Second Amendment does not apply to community associations simply because an association is not a government actor.

However, and the law is not particularly well-settled on this point, it appears that the trend is that if an association uses a court to address an issue with constitutional implications, “state action” can be found to exist, meaning that the regulation would be subject to constitutional scrutiny. For example, in the recent case of Fox v. Hamptons at Metrowest Condominium Association, Inc., a Florida court of appeal struck down a trial court’s order that prohibited a unit owner from publishing blogs and website postings about the board of directors and the association. The appellate court found that the prohibition against future communications was a “prior restraint of free speech” in violation of the First Amendment to the U.S. Constitution. The apparent theory for applying the Constitution goes back to a 1948 U.S. Supreme Court case finding that the enforcement of private covenants which contained racial restrictions in a state court was tantamount to “state action.”

The reach of the Second Amendment is a matter of great debate, both among pundits and constitutional scholars. The U.S. Supreme Court’s 2008 ruling in District of Columbia v. Heller, a 5-4 decision, is often at the center of these debates. In Heller, the court found that an absolute prohibition against the ownership of handguns held and used for self-defense in the home was a violation of the Second Amendment. The court left open the possibility that there may be limits on the reach of the Second Amendment, noting that it does not necessarily confer “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”

So where does this leave community associations? In my view, certain regulations would be upheld, and others would not. Whether regulation (or what type of regulation) is a good idea is a serious issue for the board to consider.

Originally posted on floridacondohoalawblog.com and written by Joseph Adams

To Record or Not Record? That Is The Question!

Community association boards often ask the question of whether they must record a claim of lien on a property in order to protect the association’s right to recover past due assessments on the property. Although the answer to this question changes based on the specific set of facts controlling each scenario, there is at least one scenario where the answer is NO!

In Calendar v. Stonebridge Gardens Section III Condominium Association, Inc., the association was faced with a scenario where a property was sold at a tax deed sale and there were surplus funds in the registry as a result of the tax deed sale. Pursuant to §§197.582(2) and 197.522, Fla. State., the association was entitled to file a statement of claim against the surplus funds. However, the association did not have a claim of lien recorded in the public records at the time of the tax deed sale. The association filed a statement of claim against the surplus funds, as did the prior homeowner. The prior homeowner argued that the association was not entitled to the surplus funds as the association did not have a recorded claim of lien on the property. The trial court disagreed and entered an order awarding the surplus funds to the association. The prior owner appealed.

The Fourth District Court of Appeal affirmed the trial court’s ruling, citing to the case of Bessemer v. Gerstein, 381 So.2d 1344, 1348 (Fla. 1980) and the specific language found in §718.116(5)(a), Fla. Stat, which states:

The association has as lien on each condominium parcel to secure the payment of assessments. [T]he lien is effective from and shall relate back to the recording of the original declaration of condominium. However as to first mortgages of record, the lien is effective from and after recording of a claim of lien in public records of the county in which the property is located.

Based on this language and the holding in Bessemer that the owner’s acceptance of a deed referencing the recorded Declaration of Condominium puts the owner on notice of the lien provisions found in the Declaration, the appeals court found that the association had a statutory lien on the subject property and that this was sufficient to protect the association’s ability to collect the surplus funds from the tax deed sale.

While in this case the appeals court ruled in favor of the association despite the lack of a recorded claim of lien, uncertainty remains as to whether the statutory lien alone will always protect the association’s ability to collect past due assessments. In its opinion, the appeals court references scenarios in which an association also needs to have a recorded claim of lien to recover past due assessments, namely scenarios where a first mortgagee is also asserting a claim. Given this uncertainty and the various fact-specific scenarios faced by associations, obtaining the advice of counsel on this issue is the best way to protect the association and its membership.

Originally posted on floridacondohoalawblog.com and written by K. Joy Mattingly

Why is a Plat so Important?

As an owner of residential property in Florida, you are aware that your community is probably subject to a unique set of “governing documents.” Typically these will include a Declaration of Covenants and Restrictions, Association Articles of Incorporation and Bylaws, and various Rules and Regulations.

Less well known is the statutory process of “platting,” which is required whenever a developer wishes to subdivide a large piece of property into smaller parcels and tracts. These smaller areas become the residential lots, streets and parks of a new residential sub-division.

Creation of statutory subdivision plats is governing by Florida Statute 177 Part 1. The statute contains specific requirements for both drafting and filing a plat. Basically a plat is a map of the subdivision of lands, which is supposed to be an exact representation of both the subdivision and other information required by the statute and any local ordinances. The next time you have an issue with boundaries in your community, the extent or purpose of an easement, or whether a portion of property is within your property, check your plat in addition to other governing documents, it has a wealth of information.

Every plat of a subdivision must be accompanied by a survey of all the boundaries of the platted lands. The survey must be performed under the supervision of a professional surveyor. Each plat must be accompanied by a title opinion of a Florida attorney, abstractor or title company which shows that all the owners of the property are executing the plat, and that all mortgages on the property have been satisfied.

The statute lists 29 specific requirements for each plat, including the size of the plat and the color ink that must be used. In working with your community plat (which is recorded in the Public Records of the County in which your community is located) the following requirements can be particularly useful:

  • A prominent “north arrow” must be drawn on every page to allow you to orient the map.
  • Sufficient data must be shown on the plat to describe the boundaries of every residential lot, block, street, easement, park and all other areas shown on the subdivision plat.
  • Properties which adjoin the subdivision must be identified by subdivision title, plat book and page. If adjoining land is unplatted, that must also be designated.
  • Both the location and width of all easements must be shown either on the plat or in the notes or legend on the plat. The specific intended use of each easement must also be clearly stated.
  • If there is an interior parcel within the community that is not part of the plat, it must be clearly labeled; “Not A Part Of This Plat”. Without such a label, all property within the boundaries of the platted subdivision are included.

If your community decides to have another survey of any portion of the property, it is important to remember that the original surveyor who prepares a subdivision plat is presumed to have been correct. For this reason, the new survey will only locate the original monuments, points and lines of the original survey. If for any reason there is a discrepancy between what the subdivision plat shows and what the original survey indicates, the monuments placed on the ground as part of the original survey have precedence.

Originally posted on floridacondohoalawblog.com and written by Harry W. Carls ESQ

Community Association Legislative Guide, 2018

CALL’s Florida Community Association Legislative Guide 2018 is now available. The Guide is applicable to all three types of shared-ownership communities (condominiums, cooperatives, and homeowners’ associations).

Of the twenty-plus community association bills filed during the 2018 Legislative Session, just two community association bills were passed and approved by Governor Scott: HB 617, Relating to Covenants and Restrictions, and HB 841, Relating to Community Associations. The volume of bills filed, however, shows that Florida’s legislators remain very interested in community association legislation and how it impacts their constituents. This year’s Guide focuses on the two bills that passed but also discusses a few “miscellaneous” bills that passed that may also  affect your association.

The 2018 Guide features the following:

  • An overview letter from me
  • A summary of the community association bills that were signed into law
  • A summary of the miscellaneous bills that were signed into law
  • A summary of the community association bills that did not pass
  • A list of actions we recommend that you, as a community association board member, should take to comply with all of the new laws
  • A letter from Donna DiMaggio Berger, a shareholder with the firm and CALL’s Founding Executive Director

Please click on the following link to download your copy: Florida Community Association Legislative Guide 2018

We trust you like our new look and will find the Guide easy to use and informative.

Written by Yeline Goin and originally posted on the FL Condo HOA Law Blog