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.,

Not All Notices Can Be Sent By E-mail

Q: What legal notices does my association have to send to me, if any by U.S. mail. I signed an electronic notice authorization but keep getting a lot of association paperwork in the mail? (A.K., via e-mail)

A: Associations are generally required to send notices for membership meetings, committee meetings that require notice under the statute, budget meetings, board meetings to set the insurance deductible, board meetings to authorize electronic voting, and board meetings at which assessments or rules regarding parcel or unit use will be considered. However, Florida community associations are not required to send these types of notices by mail (or hand delivery, which is also usually a legally permissible method of delivery) when the owner has given written consent to receive notices by “electronic transmission,” which is usually e-mail, but could also be a fax number.

However, there are a few types of notices that cannot be sent by electronic transmission, even if the owner has consented to receive official notices by e-mail. These include certain notices related to recall meetings, notices given in connection with the collection of delinquent assessments, certain demand notices regarding violations of covenants and restrictions, notices pertaining to termination of a condominium, notices involving conversions under the “Roth Act” provision of the Florida Condominium Act, and notices under the Florida Homeowners’ Association Act demanding participating in mandatory pre-suit mediation.

Associations are still required to also post most types of legally required notice at a conspicuous location on the common areas (for homeowners’ associations) and a conspicuous location on the condominium property (for condominiums), both as designated by the board. The law was amended in 2018 to prohibit condominium associations from satisfying legal notice requirements by posting on association property.

Consent from an owner to receive electronic notice must specifically authorize, in writing, association to transmit notices electronically. Such consent must be made revocable at will by the owner. The consent forms must be retained as an official record of the association. Similarly, although owner e-mail addresses are generally protected from access by other owners, owners who agree to accept official notices by e-mail also consent to their e-mail addresses becoming part of the official records of the association.

The fact that an association has permission to use electronic notice does not mean that the association is obligated to do so. I have been told by several management companies that they do not like to use e-mail notices because they still have to do runs of the packages for owners who receive their notices by mail, and it is just as easy to run a mail package for the whole community as it is to separate out those which get e-mails. Managers have also expressed concern about having a meeting notice challenged when an owner who gets e-mail notices changes their e-mail address, and questions arise as to whom they told, and when about it.

Q: Is there a minimum dollar amount that is required to be in a condominium association’s reserves? (G.C., via e-mail)

A: The law requires reserves for roof replacement, building painting, and pavement resurfacing, regardless of the amount of deferred maintenance expense or replacement cost, and any other item that has a deferred maintenance expense or replacement cost that exceeds $10,000. Reserve funding obligation is to be determined by a formula based upon estimated remaining useful life and estimated replacement cost or deferred maintenance expense of each reserve item.

The statute allows the members to vote to waive or reduce the association’s annual reserve funding obligation and also permits votes to authorize use of reserves for a non-scheduled purpose. There is no minimum amount of reserves required by statute if the owners have properly voted to have no reserves. While this is not considered desirable, it is also not uncommon.

Originally posted on floridacondohoalawblog.com. Written by Joe Adams

Board Can Regulate Alcohol on Common Property

Q: Our condominium association board recently made a rule that no beer, wine, or liquor can be brought into our swimming pool area. This came about because of one situation where some people got out of hand. Many of us enjoy socializing during “happy hour” around our pool. This seems like overkill and possibly illegal. What do you think? (K.M., via e-mail)

A: As the old saying goes, “one bad apple doesn’t spoil the whole bunch.” However, legally speaking, the decision is probably entirely in the hands of your board.

The Florida courts have held that a board-made rule regulating use of common property must be “reasonable.” While this is a stricter test than the standard used to judge the provisions of your declaration of condominium, the courts do tend to defer to the “business judgment” of the board in deciding what is reasonable. In order for a rule to be found reasonable, it does not have to be the only choice, nor necessarily the best choice, or even the choice that the judge personally agrees with.

In the 1975 case of Hidden Harbour Estates, Inc. v. Norman, a Florida appeals court specifically upheld the legal validity of a rule made by the association board prohibiting the consumption of alcohol on the common elements of the condominium. The court noted that “restrictions on the use of alcoholic beverages are widespread throughout both governmental and private sectors; there is nothing unreasonable or unusual about a group of people electing to prohibit their use in commonly owned areas.”

Your choices include asking for a meeting with the president and seeing if he or she will bring this matter back to the board for reconsideration. You could also seek to petition for an amendment to your declaration, which would supersede a board rule. A final option would be to seek to remove the board from office, which can be done by majority vote, or campaign for a more sympathetic board in the next election.

Q: In a condominium association, is my vote for amendments to the condominium documents public information that other unit owners can see? (R.O., via e-mail)

A: Most likely, yes. In a condominium association, other than for the election of directors, owners cast their votes in one of two ways. For owners who do not personally attend the meeting where the vote is held, they can only vote by limited proxy in most matters. Since a proxy must be signed to be legally valid, and is part of the official records of the association, it can’t be secret.

Owners who attend a meeting can vote by ballot or sometimes by voice vote. When ballots are cast at a meeting by members who are personally in attendance, I generally recommend that associations use signed ballots. That allows the votes to be verified in the event of a dispute, and to ensure those that have turned in proxies but also attend the meeting in person don’t inadvertently vote twice. Some bylaws permit voting by secret ballot at members’ meetings, but that is not common. It is my view that the board has the ultimate say in the type of voting documents used, absent specific requirements in the bylaws.

With regard to votes to approve amendments to the condominium documents, there are times where even if secret ballots are permitted, it is necessary to be able to verify which owners voted in favor of the amendments. For example, certain amendments regarding leasing are only applicable to those owners who vote in favor of the amendment, or who take title to their unit after the effective date of the amendment. In that situation, the association would have to be able to verify how each owner voted in order to determine whether the amendment was applicable to them.

For the election of directors in a condominium association, the statute requires the use of secret ballots. Secret ballots are also typically used in the election of directors for homeowners’ associations.

Originally posted on floridacondohoalawblog.com. Written by Joe Adams

Who Replaces Condominium Building Windows?

Q: The windows in my condominium unit need to be replaced. My condominium association is stating that windows are my responsibility. Because the windows are part of the exterior building, doesn’t Florida law require the association to replace the windows? (S.R, via e-mail)

A: The Florida Condominium Act does not specifically address whether the association or the individual unit owners are responsible to maintain, repair, and replace windows. Section 718.113(1) of the Act states that the association is responsible to maintain the common elements. However, the statute goes on to state that the declaration can require that limited common elements be maintained by the individual unit owner benefited by the limited common element.

Therefore, whether the windows are the responsibility of the association or the individual unit owners will depend on whether the windows are part of the units or part of the common elements (and if a limited common element) and how the declaration assigns the maintenance responsibility. In my experience, it is fairly common to see the maintenance responsibility for windows and sliding glass doors placed upon unit owners rather than the association.

It is also important to note that the responsibility to insure windows and sliding glass door rests with the association as a matter of state law and cannot be altered through the condominium documents. Likewise, if the windows or sliders are damaged by an “insurable event,” such as a hurricane, the association is likewise responsible for repair or replacement of the windows as a “repair after casualty” at the expense of all owners, unless the association has “opted out” of that statute or if the statute is deemed inapplicable for constitutional reasons.

When the declaration requires the unit owners to maintain, repair, and replace windows, the current version of the statute also contains a procedure for the association, after majority vote of the owners, to install impact glass on a charge-back basis to the owners. Owners with compliant hurricane protection are excused from the assessment through credits. This provision of the statute is rather ambiguous and presents many technical legal issues, so a competent attorney should be consulted if this procedure is undertaken.

Q: A question has arisen in my condominium association concerning who has the authority to adopt the budget, the board of directors or the members. Can you clarify this for us? (D.A., via e mail)

A: As with many community association legal issues, the answer will be depend on the language of your condominium documents. The Florida Condominium Act does not specifically address the issue.

The statute states that board meetings where a budget is to be considered has to be noticed at least 14 days in advance by posting and mail or hand-delivery, and a copy of the proposed budget must be provided with the mailed/delivered notice. E-mail notice can also be used for those who owners who consent in writing.

Accordingly, the statute seems to contemplate that the board will approve the budget. In fact, the statute outlines a process by which the owners have the right to propose and adopt an alternative budget, when the budget adopted by the board requires assessments against the unit owners, which exceed 115% of the assessments preceding fiscal year.

However, it is not uncommon, particularly in older condominium documents, to see a requirement that the owners also approve the budget. In my opinion, such a provision is not at odds with the statute and would be enforceable. However, I do not believe such clauses are desirable for a variety of reasons.

It is also important to remember that even where the board has the authority to adopt the budget, the board does not have any discretion when it comes to reserves. Unless the owners have voted to waive or reduce the funding of reserves, any budget adopted by the board must include fully funded reserves.

Originally posted on floridacondohoalawblog.com. Written by Joe Adams is an attorney with Becker & Poliakoff, P.A., Fort Myers. Send questions to Joe Adams by e-mail to jadams@beckerlawyers.com

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

Association Requirements to Hurricane Coverage

Q:        To cut costs, my condominium association wants to stop buying hurricane insurance. Are they allowed to do this under the law? (S.W. via e-mail)

  1. No. Section 718.111(11)(a) of the Florida Condominium Act requires condominium associations to use their “best efforts” to obtain “adequate” property insurance. Pursuant to the statute, “adequate” insurance is based on the replacement cost of the property to be insured, as determined by an independent insurance appraisal at least once every 36 months.

The property which must be insured by the association includes all portions of the condominium property as originally installed, in accordance with the original plans and specifications, and replacements of like kind and quality. However, certain items, such as wall, ceiling, and floor coverings, cabinets, countertops and appliance within the unit, are excepted from the association’s insurance responsibility, and are the responsibility of the unit owner. Therefore, your condominium association is required to purchase and maintain property insurance on the condominium property, including windstorm insurance.

Q:        Can my condominium association include trees destroyed by Hurricane Irma in a special assessment for roof and building damage repair? (M.L. via e-mail)

A:        Yes. The association has the duty to repair the condominium property after an insurable event. This includes removal of debris and typically includes replacement of landscaping that was damaged or destroyed. Assuming that this landscaping is party of the common elements of your condominium, it is entirely proper for the association to include these amounts in a special assessment.

 

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

State Changes Barbecue Grill Rules

Q:        Has the law been changed to allow grilling on condominium balconies? (J.S. via e-mail)

  1. Yes. The Sixth Edition of the Florida Fire Prevention Code, effective December 31, 2017, permits the use of certain electric grills on condominium balconies. A new edition of the Florida Fire Prevention Code is required to be adopted by the State Fire Marshall every third year, pursuant to Section 633.202 of the Florida Statutes.

The current edition of the Code is based on the 2015 NFPA 1 Fire Code. With respect to cooking equipment, Section 10.10.6.1 prohibits using or kindling hibachis, grills, or other similar devices for cooking, heating, or any other purpose on any balcony, under any overhang portion, or within 10 feet of any structure, other than in one and two-family dwellings. However, Section 10.10.6.1.1 allows listed electric portable, tabletop grills, or other similar apparatus, so long as they do not exceed 200 square inches of cooking surface.

Even if permitted by the Code, you would need to confirm that your association has not adopted any rules which prohibit the use of electric grills and similar items on the condominium property. Board made rules, if reasonably related to safety, can be stricter than the minimum requirements of state law.

 

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

Requiring Licensed Contractors is Valid

Q:        My homeowners’ association requires contractors to be licensed and insured as part of the approval process for architectural review. Are they allowed to do this? (K.L. via e-mail)

A:        The Florida Homeowners’ Association Act, found at Chapter 720 of the Florida Statutes, sets forth the process by which homeowners’ associations can perform architectural review. The Act limits the Association’s authority to that which is specifically granted or reasonably inferred from the declaration, or other published standards authorized by the declaration.

Therefore, it would depend on the language contained in the governing documents. Many homeowners’ associations governing documents contain provisions that require properly licensed and insured contractors. In my opinion, such a provision, if properly enacted, is valid.

Q:        I recently purchased a unit in a condominium association and have learned that my association does not have a website. Is this common?? (T.I. via e-mail)

A:        Although I have no statistics on point, I would guess that a majority of associations do not have websites. There is no legal requirement that a condominium association have a website or other online resources for unit owners.

However, as of July 1, 2018, condominium associations with 150 or more units will be required to maintain an association website that contains certain information that is accessible only to unit owners. The information that must be maintained on such websites includes the condominium documents, budgets, financial reports, certain contracts, as well as meeting notices.

Q:        I own condominium units in the same condominium. Can I send in my ballots to elect the board together, or do I have to send them separately? (K.G. via e-mail)

A:        You can send in the ballots for your units together, however separate “inner envelopes” must be used for each ballot, and the “outer envelope” must identify your units.

The Florida Condominium Act requires members to vote by “secret ballot,” sent in inner and outer envelopes. The inner envelope (sometimes called the ballot envelope) contains the ballot, and should have no markings or signatures. The outer envelope is pre-addressed to the association and must contain the voter’s name, voter’s signature, and voter’s unit number(s).

The Florida Administrative Code permits several inner envelopes to be contained within one single outer envelope sent by an owner with multiple units. However each inner envelope can only have one ballot.

Q:        Is it legal for a manager to prepare and sign a certificate of amendment verifying that amendments to our condominium documents were approved? (A.L. via e-mail)

A:        No. According to the Florida Supreme Court, the preparation of documents related to amendments is the “practice of law” and must be done by a Florida-licensed attorney.

As to signing the document, the law requires certificates of amendment to be executed with the “formalities of a deed.” This generally requires signature by either the president or a vice-president, with adherence to certain other formalities, depending upon the manner, generally including a requirement for witnesses and notarization. Although not required by law, some documents also require “attestation” by the corporate secretary, and this should also be followed where required.

Q:        My community has a “villas association” for my neighborhood and a “master association” for the entire development. Is it permissible for a villa owner to serve as a member of the board of both our neighborhood association and the master association at the same time? This would seem to be a conflict of interest to me. (T.C. via e-mail)

A:        There is no legal prohibition against serving on multiple boards governing different aspects of the same community, and it is not uncommon. There may be times when the interests of the “master association” and the “neighborhood association” are at direct odds, and in such cases the individual serving on both boards should recuse himself or herself from both matters.

 

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

Associations Should Prepare for Disaster in Advance

We are now over a month past Hurricane Irma.  While it certainly could have been significantly worse for Southwest Florida, many community associations are still working  through a variety of difficult issues, including processing insurance claims, continuing clean-up, and property restoration. While immediate attention must be paid to those issues, now is also a good time for associations to work on developing disaster preparedness and response plans for the future, or refining current plans based on what has been learned from this hurricane.

The steps that community associations can take to prepare for major casualties such as hurricanes, tornados, and fires, include review of what coverage is actually provided by your insurance policies, consideration of having flood insurance, and preparation of disaster preparedness and response plans. Now is the time. I have found that when years go by with no major hurricanes, people tend to lose focus on the importance of good planning. Human nature, I guess.

Section 718.111(11)(d) of the Florida Condominium Act requires a condominium association to use its best efforts to obtain and maintain “adequate insurance” to protect the association, the association property, the common elements, and the condominium property. The condominium statute does not specifically require flood insurance.  In fact, the law states that a condominium association “may also obtain … flood insurance,” implying that flood insurance is permissive, rather than legally required.

For condominiums located within designated flood hazard areas, flood insurance could be considered mandatory by the “adequate” insurance requirement of the statute. If flood damage occurs, not only the structure of the building may be damaged, but the electrical system, plumbing, and other utilities may have to be replaced in their entirety. In a high rise condominium building, unit owners on higher floors often forget that they also own a share of the lower floors. Further, windstorm insurance does not cover damage due to flooding, and vice versa. This could result in associations being underinsured in the event of damage due to both wind and flood. Further, a high percentage of flood claims occur outside of flood zones, so every association should take a hard look at this issue.

The Florida Homeowners’ Association Act, Chapter 720 of the Florida Statutes, imposes almost no insurance requirements on homeowners’ associations. The scope of required coverage and types of insurance required will be dictated solely by the governing documents. For attached structures, such as townhouses or villas, the difference between good and bad documents can mean the difference between financial success and disaster. Talk to your insurance agent and attorney to make sure the documents actually say what you want them to say, and are consistent with how you are insuring.

Associations should develop guidelines as to what actions will be done both before and after a disaster occurs. Before a disaster, associations should ensure that important documents such as insurance policies and association records are secured in a safe place, including having such documents on-line, designating an out of state contact for the association, and taking photographs and videos to document property conditions for insurance purposes.

After a disaster occurs, associations should rely on established relationships with contractors to perform emergency repairs. Associations should assemble a list of post-disaster contacts such as board members, management, attorneys, engineers, insurance agents, insurance adjusters, and so forth. There are, unfortunately, some opportunists and charlatans who chase these storms.

Associations should develop a program to keep owners informed regarding the status of association matters, for instance by email updates or posting on a website. Many association-owner disputes arise from these events. Some could be avoided with a little communication.

Hopefully, it will be a long time before we have to deal with these issues again. However, we certainly cannot count on it and should let Irma serve as a wake-up call that an ounce of prevention is often worth a pound of cure.

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

Grant Funding Available Now for Wind Mitigation Retrofits for Vulnerable Condominium Community in Florida

FAIR (Florida Association for Insurance Reform) is seeking a low to moderate income condominium community to benefit from a Residential Construction Mitigation Program (RCMP) grant from the Florida Division of Emergency Management.  The $194,000 grant will be used to supplement the cost of wind mitigation improvements that increase community safety and reduce insurance premiums and energy costs.  Senior communities receive preference.

Funding must be used for a systemic approach to wind mitigation that involves the entire residential structure; for example, replacing roof coverings as well as installing wind-resistant windows and doors.  Grant money will be awarded to residents with the most financial need.  PACE (Property Assessed Clean Energy), grant assessments, or other financing, can be used to finance the balance of the project costs.

FAIR will use the grant-funded project as a case study to present options and strategies for wind mitigation, creating a blueprint for community associations throughout Florida on how to plan and execute similar wind mitigation projects using a combination of PACE financing, grant money, and other funds to finance the improvements.  Actual insurance and energy savings will be documented to provide better guidance on cost benefits and payback periods.

If your condominium association is a senior (55+) and/or low to moderate income community in Florida and is interested in this grant funding, please contact FAIR at (754) 200-4538, mdeen@floridainsurancereform.org.  The deadline is Monday, December 12, 2016.

Before applying for the grant, please be sure that your Board has a clear understanding as to whether there are any requirements for an owner vote for alterations to the roofs, windows, and doors.  Contact your association attorney if you have any questions.

 

Originally posted on Florida Condo and HOA Law Blog