Beach Access Restricted?

Although summer is gone and fall is nearing its end, the truth is that even in the heart of winter we never truly have to wait long to enjoy the beach in Florida. The problem this year however is who can access the beach.

During the 2018 Legislative Session, the Legislature passed House Bill (HB) 631, relating to “Possession of Real Property.” The bill dealt with the causes of action known as ejectment, forcible entry, and unlawful detainer. The bill also included what turned out to be controversial change in the law related to “customary use,” which may impact the public’s right to access beach property. If your home or condominium is on the beach, you will be interested in this change in the law.

It is first important to understand that private property owners who live on the beach in some cases own lots that are platted to include the beach area between the dunes and the high-water mark. This could include condominium associations if the common elements or association property includes the beach.

Before the Legislature passed HB 631, counties were adopting “Customary Use Ordinances” which essentially allowed beach access on private property. It was then up to the property owner (this would include condominium associations) to challenge the customary use of their property by non-owners.

HB 631 requires counties to go through a new process in order to adopt a Customary Use Ordinance and places the burden on the county to establish the customary use over each privately owned parcel included in the ordinance. The bill essentially makes it more difficult for counties to adopt Customary Use Ordinances as it shifts the burden from the property owner who previously had to challenge the ordinance in court to the county which now has to establish the customary use truly does exist for that parcel.

If you or your condominium association own beachside property, there is still some dispute regarding how much power a property owner has to “kick out” someone using the beach. The opponents of the new law (primarily the county governments) have stated that the new law lets beachfront property owners “wall off” portions of the beach from the public. However, Representative Paul Renner, a proponent of the bill, wrote an article stating that through the courts, Florida law has recognized the public’s right to the “customary use” of that private property, and that the public can still have beach access if it is an area that has been customarily used by the public. Nevertheless, the new law has caused disputes between beachgoers and property owners and in some cases, law enforcement has been called to mediate disputes.

 

Originally posted on www.floridacondohoalawblog.com. Written by Yeline Goin.

Charging the Way: New Law Opens the Door for Electric Charging Stations in Condominiums

A recent amendment to Chapter 718, Florida’s Condominium Act, facilitates a unit owner’s ability to install and use an electric-vehicle charging station within their condominium. Section 718.113(8), Florida Statutes, which took effect on July 1, 2018, created a new provision stating that a declaration of a condominium or the board of administration of a condominium may not prohibit a unit owner from installing an electric vehicle charging station within the boundaries of the unit owner’s limited common element parking area, under certain circumstances. A unit owner’s “right” to install a charging stating is not, however, without limits. An association may require that the unit owner comply with all safety requirements, applicable building codes or recognized safety standards for the protection of the association property and its members. An association may also require the unit owner to engage the services of a licensed and registered electrical contractor or an engineer that is familiar with the installation and requirements of an electric vehicle charging station. An owner wishing to install an electric vehicle charging station may also be required to comply with any reasonable architectural standards adopted by the association that govern the dimensions, placement or appearance of the electric vehicle charging station. However, such standards cannot substantially increase the cost of installation.

The new law also provides for additional safeguards for the association. For example, installation of an electric vehicle charging station may not cause irreparable damage to the condominium property. The electricity for the electric vehicle charging station must be separately metered and paid for by the unit owner making the installation. Cost of installation, operation, maintenance and repair of the electric vehicle charging station, including hazard and liability insurance, is the unit owner’s responsibility. Additionally, an association may require the unit owner to reimburse the association for the actual cost of any increased insurance premium attributable to the electric vehicle charging station. The law also shields condominium associations from construction liens resulting from the installation of electric vehicle charging stations by unit owners.

The new law does not, however, say anything about what happens if the association voluntarily opts to install “common” electric vehicle charging stations. In other words, if a condominium association opts to install these “common” electric vehicle charging stations (after complying with the necessary legal requirements) it does not mean that unit owners no longer have the right to install their own charging stations. The new law also does not address who is responsible for any costs associated with upgrading the condominium’s electrical system if an upgrade is necessary to handle the increased electrical usage.

Originally posted on floridacondohoalawblog.com and written by Jennifer Horan

Associations Can Require a Key

Q: I recently received an e-mail from my condominium association asking for a key to my unit. I have a problem with the board having a key to my unit. Am I required to provide a key? Can the association enter my unit at any time? (J.M. via e-mail)

A. Florida law gives your association the irrevocable right of access to your unit. However, this does not mean that the board can enter your at any time, for any reason. The association can access your unit during “reasonable hours” when it is necessary for the maintenance, repair or replacement of the common elements or of any portion of your unit that is required to be maintained by the association.

The right of access provide by the Condominium Act has been interpreted by the state agency which regulates condominiums to be broad enough to support a requirement that unit owners must provide keys to their unit to the association. Therefore, if your association’s declaration requires unit owners to provide keys to the association, I believe the provision is enforceable. If the requirement arises from a board action, there is more room for debate, but the prevailing view is that such rules are generally enforceable as well.

Unless there is an emergency, the association should provide reasonable notice to you before accessing your unit. The association’s acceptance of keys imposes a duty to handle the keys in a reasonable fashion. For associations that require owners to provide pass keys, it is a good idea for the board to establish policies addressing safety measures such as how the keys will be stored and who will have access to the keys.

Q: I live in a gated community that is governed by a homeowners’ association. I am a veteran and I often display my American flag outside my home. I intend to display the same flag for other holidays and days of remembrance. I recently received a letter from the board of directors of my association complaining about my “unapproved” flag. Can my association prevent me from displaying my flag on Labor Day? (L.F. via e-mail)

A: Section 720.304(2) of the Florida Homeowners’ Association Act states that any homeowner may display one portable, removable United States flag or official flag of Florida in a “respectful” manner, and one portable, removable official flag that is not larger than 4 ½ feet by 6 feet, which represents the United States Army, Navy, Air Force, Marine Corps, or Coast Guard, or a POW MIA flag regardless of any covenants, restrictions, bylaws, rules or requirements of the association. A homeowner may also erect a freestanding flagpole not more than 20 feet high on any portion of the homeowner’s real property, regardless of any covenants, restrictions, bylaws, rules or requirements of the association as long as the flagpole does not obstruct sightlines at intersections and is not erected within or upon an easement.

Additionally, in 2005, Congress passed the Freedom to Display the American Flag Act to ensure that the right of an individual to display the United States flag on residential property not be abridged. The law generally provides that a condominium association, cooperative, or residential real estate management association may not adopt or enforce any policy that would restrict or prevent a member of the association from displaying the flag of the United States on residential property within the association. It is important to note, however, the law does permit associations to adopt reasonable restrictions pertaining to the time, place, or manner of displaying the flag of the United States necessary to protect a substantial interest of the association.

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

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?

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

Deadline looms for older Florida High-Rises to Install Engineered Life Safety Systems!

Florida’s 2019 60-day Legislative Session will begin on March 5, 2019 and is expected to end on May 3, 2019.

The Florida Fire Protection Code, Section 31.3.5.12 of the National Fire Protection Association (NFPA) 101 requires existing (pre-1992) “high-rise” buildings which are not otherwise exempt to be protected either by an automatic sprinklers system or by an Engineered Life Safety System (ELSS) by Jan. 1, 2019. Given the timing involved, any further legislative remedies no longer seem feasible.

The components of an ELSS may vary from one jurisdiction to another but the ELSS must meet all of the other requirements of the NFPA 101. A typical ELSS requires the following:

  1. A report by a licensed architect or engineer identifying the building’s existing condition and outlining the alterations needed to comply with the NFPA 101.
  2. A complete fire sprinkler system for all common areas.
  3. A partial fire sprinkler system for the condominium units which typically is one sprinkler head inside each unit located above the entrance door to the unit.
  4. A complete fire and smoke alarm system which complies with current life safety codes.
  5. An approved compartmentation plan designed to restrict a fire from spreading which typically includes either smoke-proof elevator lobbies or pressurized elevator hoistways, sealing of floor and wall penetrations, etc.

Naturally, it will take time to complete the necessary Engineer’s Report and to locate, vet and hire a contractor who can perform this work in your community. Also, there is the large matter of how to pay for the ELSS installation. If you plan on using reserve funds to do so you will need a membership vote to approve using those funds for that purpose unless you had a special reserve earmarked for ELSS installation. If you plan on obtaining financing to pay for the installation it takes time to apply for and secure such financing.

At this point, if your pre-1992 high-rise is not exempt and you have not yet made plans to install the necessary ELSS prior to the end of 2019 you need to speak to experienced Association counsel immediately to take the steps needed to ensure you do not miss the deadline and wind up being fined as a result.

Easements by Necessity – Goldman v. Lustig

In the recent case Goldman v. Lustig, Case No. 4D16-1933 (Fla. 4th DCA January 24, 2018), at issue was whether Unit Owners had the right to use and access a dock located behind an adjacent townhouse owner’s waterfront property.

The Unit Owners’ complaint sought a declaration of their rights to use the dock, as well as a permanent injunction to prohibit the adjacent property owner from preventing their use of the dock. The complaint also alleged that the adjacent property owner severed his riparian rights (simply defined as the method of allocating water among those who possess land along its path) to a portion of the dock when he entered into a quitclaim assignment with the Association. The adjacent property owner filed a countered seeking a declaratory judgment that would affirm his rights to the dock, and a permanent injunction to stop the Unit Owners from both using any portion of the dock and accessing the dock through his property. The Court found that the assignment was valid, as both the Unit Owners and the adjacent property owner executed the assignment, and riparian interests may only be severed by an express bilateral agreement (a reciprocal arrangement between parties which promises to do something in exchange for what the other is doing).

However, the central issue in the decision was whether the Unit Owners had a right to access the dock through the adjacent property owner’s land by way of an easement by necessity. In Florida, an easement by necessity is granted when there is no other accessible right-of-way to your own land except by crossing over someone else’s land.

While the Court held that the Unit Owners were entitled to use a portion of the dock, it explained that they were not entitled to an easement by necessity in order to access the dock, as they failed to demonstrate an absolute need for such easement. Although accessing the dock by land required the Unit Owners to cross the adjacent property owner’s land, the Court reasoned that they were not entitled to an easement by necessity, as they could also access the dock by water.

The Court provided that because the Unit Owners live on waterfront property, they could find an alternate way to access the dock. For instance, the Unit Owners could build their own access pier, which the Court considered to be a “reasonable and practicable way of egress or ingress.” The Court stressed that factors such as cost or inconvenience are not determinative for purposes of obtaining an easement by necessity.

Originally posted on floridacondohoalawblog.com and written by Esther Zuccaro

Legislative Review Wrap-Up

This week we conclude our annual review of 2018 legislation affecting Florida community associations, with a review of the amendments to Chapter 712 of the Florida Statutes, the Marketable Record Title Act, or MRTA, which become effective on October 1, 2018.

MRTA is primarily intended to facilitate real estate transactions, by eliminating “stale claims” against real property. However, the courts have found that covenants and restrictions of a homeowners’ association can be extinguished by MRTA. The general yardstick for MRTA extinguishment is thirty (30) years from the “root of title.” Though usually not the exact extinguishment date for most parcels, the most prudent yardstick for determining potential MRTA extinguishment is 30 years from the recordation of the original covenants and restrictions.

MRTA includes a process that allows residential homeowners’ associations to preserve the covenants and restrictions to prevent extinguishment. There is also a process in the Florida Homeowners’ Association Act, Chapter 720 of the Florida Statutes, which allows a community to “revitalize” covenants and restrictions that have been extinguished by MRTA.

One of the most significant changes regarding MRTA is actually found in the Homeowners’ Association Act. The new law requires that at the first board meeting after the annual members’ meeting, excluding the organizational meeting, the board shall consider the desirability of filing notices to preserve the covenants or restrictions affecting the community or association from extinguishment under MRTA.

Therefore, pursuant to the new statute, the board of every homeowners association, must annually consider the impact of MRTA even if the 30 year deadline is not imminent, or even if a preservation notice has already been filed.

Updates to Definitions in Chapter 712

  • Creates a new definition for “community covenant or restriction” to mean any agreement or limitation contained in a document recorded in the public records of the county in which a parcel is located which:
  • Subjects the parcel to any use restriction that may be enforced by a property owners’ association; or
  • Authorizes a property owners’ association to impose a charge or assessment against the parcel or the parcel owner.
  • Changes the term “homeowners’ association” to “property owners’ association” and defines the term to include a homeowners’ association as defined in Section 720.301, a corporation or other entity responsible for the operation of property in which the voting membership is made up of the owners of the property or their agents, or a combination thereof, and in which membership is a mandatory condition of property ownership, or an association of parcel owners which is authorized to enforce a community covenant or restriction that is imposed on the parcels.
  • Amends the definition of “parcel” to mean any real property that is subject to any covenant or restriction of a property owners’ association (and no longer requires that the property be used for residential purposes).

Filing Notice to Preserve

  • A property owners’ association may preserve and protect a community covenant or restriction from extinguishment by the operation of MRTA by recording, at any time during the 30-year period immediately following the effective date of the root of title:
    • A written notice in accordance with Section 712.06 of MRTA; or
    • A summary notice in substantial form and content as required under Section 720.3032(2) of MRTA; or an amendment to a community covenant or restriction that is indexed under the legal name of the property owners’ association and references the legal name of the property owners’ association and references the recording information of the covenant or restriction to be preserved.
  • The new law also includes a form which satisfies the notice obligation and constitutes a summary notice sufficient to preserve and protect the referenced covenants and restrictions from extinguishment under MRTA.

Revitalization of Covenants and Restrictions by Parcel Owners Not Subject To A Homeowners’ Association

  • Creates a process for communities not governed by a homeowners’ association to revitalize covenants and restrictions to revive covenants or restrictions, with certain exceptions.

Written by Joe Adams and originally posted on the FL Condo HOA Law Blog

Medical Marijuana and Your Florida Community

Citizens in the Sunshine State approved Amendment 2, which legalized the use of medical marijuana, by a 71% margin. Florida is expected to log more than $1 billion in medical marijuana sales by 2019, according to a report compiled by marijuana industry analysts New Frontier Data and Arcview Market Research. The full extent of this decriminalization of a Schedule 1 substance remains to be seen and much will depend on the rules governing medical marijuana which have yet to be passed by the State Legislature and the Department of Health. In terms of your community association, it is a safe bet that at some point an owner or resident will be discovered using marijuana in his or her unit or on the common elements or will request the use of same as a reasonable accommodation for a disability.

On December 29, 2014, the U.S. Department of Housing and Urban Development (HUD) issued a Memorandum regarding the use of marijuana in multifamily properties. That Memorandum reinforced that while the use of marijuana for medical purposes has been decriminalized by several states in our Union, the Controlled Substances Act (CSA), 21 U.S.C. Section 801, et. Seq. still classifies marijuana as a Schedule 1 substance and therefore the manufacture, distribution or possession of marijuana remains a federal crime.

HUD emphasized in that Memorandum that a public housing agency or owner of federally assisted housing must take active steps to terminate the tenancy of any household with a member who illegally uses a controlled substance or whose use of such substance interferes with the health, safety or right to peaceful enjoyment of the premises by other residents.

Naturally, the following questions have arisen with regard to private housing providers like condominium, cooperative and homeowners’ associations:

  • Do community associations have a duty similar to that imposed on public housing providers to deny occupancy to residents who will be using a substance that remains illegal under federal law?
  • Can a Florida resident request a reasonable accommodation to use medical marijuana and must the association grant that request?
  • Can the association inquire on a purchase or rental application whether or not any of the proposed occupants in the home or unit currently use or plan on using marijuana?
  •  Are owners who rent out their properties to Section 8 tenants required to investigate possible marijuana use and deny applications accordingly if such use is confirmed?
  • Does the prescription for medical marijuana mean an individual automatically has a disability as defined by state and federal law?

There is analogous case law we can consider when discussing the topic of medical marijuana use and its attendant issues for your community. In the case of Hidden Harbour Estates, Inc. v. Norman, 309 So. 2d 180 (Fla. 4th DCA 1975) the Court was presented with the question of whether a condominium association, through the exercise of its rule-making powers, could prohibit the consumption of alcoholic beverages in the common areas of the condominium. The Court held that the restriction on the consumption of alcoholic beverages was reasonable because it was designed to promote the health, happiness and peace of mind of the majority of the unit owners.

If an association were to pass a rule restricting the use of marijuana, medically prescribed or otherwise, on the common areas and perhaps even inside the units, the Board would have to clearly articulate its reasons for doing so. In the case of marijuana those reasons might include:

  • The fact that the use of the substance remains a crime under federal law regardless of the permissible use for certain medical reasons under Florida law.
  • The fear that the smoke from marijuana may create a hallucinogenic effect and/or health impact on others.
  • The impact on minors who might witness the use.

Since there are forms of marijuana (pills, edibles, oils) which do not emit smoke and thus are not easily detectable by others, allowing the use of the substance in other forms may provide a compromise position in some communities. In Florida, medical marijuana is now only available in ingestible form, although that may change.  Other communities may be most concerned about preventing the use of this substance on the common areas and limited common areas such as balconies or patios but for some communities, the concern may extend to use of the substance even inside the privacy of one’s unit, particularly if the building is old and the insulation between units is not great.

Fortunately, board members are not held to a standard of perfection; they are required, however, to be reasonable and to exercise prudent judgment when making decisions that impact their members and the community overall. In the case of medical marijuana use, the competing interests involved are clearly the resident’s desire to use the substance to alleviate the symptoms associated with a medical condition and the association’s concerns about the impact such use can have on the other residents as well as concerns about the continued criminality of such activity under federal law. Until accompanying rules are adopted by the State Legislature and the Department of Health (and those rules are imminent) the safest path to follow is to only allow medical marijuana (which is only available currently in ingestible form) to be used to treat children with seizures and a few other medical issues. It is too soon to predict how any claims brought under the Florida Fair Housing Act will fare.  Since the use of medical marijuana inside private residential communities is a new and emerging area, the decision on whether to regulate, restrict, prohibit or permit the use is one that requires a detailed conversation with the community’s association attorney who needs to be fluent in this area of the law.

Written by Donna DiMaggio-Berger and originally posted on FL Condo HOA Law Blog

New Condo Laws Have Potential to Increase Litigation

During the 2017 legislative session, new laws were adopted
which significantly change the way condominium associations are managed
and operated. Many of the new provisions are well-intentioned, but raise a
number of questions that remain unanswered and have the potential
to increase litigation in some condominiums. This article will address two particular issues—term limits and recalls—and provide suggestions for fixing them
during the next legislative session, which is scheduled to begin
in January 2018.

Term Limits
The new law provides that a board member may not serve more than four consecutive twoyear terms, unless approved by an affirmative vote of two-thirds of the total voting interests of the association or unless there are not enough eligible candidates to fill  the vacancies on the board at the time of the vacancy. One of the unanswered questions raised by this new law is whether it applies to boards with one-year terms.
The plain language of the statute suggests that it does not apply to one-year terms. Another unanswered question is whether the law is intended to be applied retroactively or prospectively beginning with terms starting after July 1. In other
words, if prospective, the earliest that a board member would be prohibited from running because of term limits is 2025. If retroactive, many directors may be
“termed out” now or at the next election. Interestingly, when Floridians
voted to amend the Florida Constitution to impose term limits on state office holders, it was implemented prospectively. The constitutional amendment was adopted in 1992 but became effective in 2000, thereby allowing sitting legislators to serve an additional eight years. The Division of Condominiums, Timeshare, and Mobile Homes has not announced its interpretation, although only an interpretation by an appellate court would be binding in the legal sense. As such, associations face uncertainty and will need to consult with counsel to decide how the law applies to them.
Another issue with the new law is that it allows a “term-limited” board member to continue to serve if approved by two-thirds of the total voting interests of the
association (i.e., two-thirds of all members). Assuming this means that the two-thirds vote is determined in conjunction with the election, (which is also debatable), it is my experience that the chance of getting two-thirds of the members to vote in a condominium election is slim to none. Further, the condominium law only requires 20 percent of the members to cast a ballot in order for there to be a valid election, acknowledging that it is hard to get condominium owners to vote. I suggest changing
the two-thirds threshold to twothirds of those who vote, and to allow an omnibus “opt out” from the statute to be included in the association’s bylaws. The “twothirds
of those who vote” threshold will still allow an incumbent director to be defeated if owners are truly opposed to the director continuing to serve on the board, or if enacted through the bylaws, would require super-majority support for an “opt out.”

Recalls
Under the “old” recall law, when the board was served with a petition for recall, the board was required to “certify” or “not certify” the recall. This gave the board the opportunity to review the recall petition to make sure it was actually signed by a majority of the owners. If the board did not certify the recall, the board was required to file a petition for arbitration with the Division of Condominiums, Timeshare, and Mobile Homes, and the arbitrator would decide whether the recall was valid or not. The old law was criticized because owners argued that boards were using their power to not certify a recall, even if clearly valid, just to stay in control of the association for as long as possible. The intent of the “new” law appears to be to make recalls effective immediately upon receipt by the board of directors of a recall petition. The intent also appears to be to require the individual board members who are recalled to file a petition for arbitration if they believe the recall to not be effective. However, the law leaves in the provision which requires a board meeting to be held when the board is served with a petition for recall arbitration, but removes the provision requiring the board to certify or not certify the recall. So, what is the board supposed to do at the
board meeting? Also, what is the board’s responsibility or duty with respect to a recall that is on its face is invalid, or that clearly is not signed by a majority of the owners?

In my opinion, the law should require the board to make an initial determination as to whether the recall petition is facially valid. The law should be amended to list the things that would make a recall petition facially valid—the most important being that it was signed by a majority of the owners. If the legislature wants to place the burden of challenging a recall petition on the board members being recalled, it should at least require that the petition be facially valid. Otherwise, the law could be easily abused, and would have the unintended consequence of undermining the integrity and reliability of the election process.

Written by Yeline Goin and originally posted on Florida Condo HOA Law Blog.