Community Association Counselor


Laura M. Manning


Roberto C. Blanch

See bios at bottom of page

Last Updated 11/21/2019

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Homeowner Feeding Wildlife Leads to Black Vultures Overwhelming Parts of West Palm Beach Community

By Laura M. Manning

Recent reports in the Palm Beach Post and on WPBF 25 News chronicled the devastating damage that is being caused to homes in the Ibis Golf and Country Club community in West Palm Beach by hundreds of black vultures. The large birds are being attracted by a homeowner who is feeding the wildlife with massive amounts of food.

The vultures fly in for their regular feedings and then stay to roost on and around the surrounding houses. Hundreds of the birds have torn apart screened enclosures and made themselves at home in neighboring pools and patios, and they have even dented residents’ vehicles with their beaks.

"The vultures just vomit everywhere," says a homeowner in the newspaper’s article. "Defecating and vomiting. It’s just gross."

Another homeowner who lives next door to the lady who feeds the birds says that after the vultures tore into her pool enclosure, they became trapped and began attacking each other. "Imagine 20 large vultures trapped, biting each other — and they can bite through bones," she said. "They would bang against my windows running away from a bird that was attacking them. Blood was everywhere. It was a vile, vicious, traumatic event."

The homeowners say that the neighbor feeding the wildlife puts out four 20-pound bags of dog food a couple of times a week in addition to occasional roasted chickens and trays of sandwiches.

According to the president of the Ibis Property Owners Association, the POA and Florida Fish and Wildlife Commission have warned the homeowner to stop. In fact, Fish and Wildlife officers pulled an adult alligator out of the area as a result of her feedings, but she still has not stopped.

"We called Fish and Wildlife in to give the lady a warning. We also issued a violation notice. She has to appear in front of our Rules and Compliance Committee and will get a fine," said the association president in the newspaper article. He also notes that she is to receive a cease and desist order from the association’s attorney, and they are also pursuing a citation from the Fish and Wildlife Commission.

The association for the community did the right thing by contacting and involving law enforcement with the Fish and Wildlife Commission officers. In cases such as this with recalcitrant homeowners who create an unbearable nuisance for their neighbors, associations need to look to both their own enforcement mechanisms as well as law enforcement, as appropriate, in order to remedy the situation as quickly as possible. They also need to move quickly with the filing of a lawsuit seeking damages as well as emergency injunctive relief to force owners to cease their offending activities.

Our firm’s community association attorneys write about important issues for associations in our blog at, and we encourage association members, directors and property managers to enter their email address in the subscription box in the blog to automatically receive all our future articles.




Association Rule Blamed for Tragic Death of Resident Sends Message to Communities Nationwide

By Roberto C. Blanch

A recent editorial by the South Jersey Times focused on the tragic and untimely death of a 25-year-old HOA community resident that is being blamed on an overly restrictive association rule. Tori Gerstenacker was struck and killed by a motorist while crossing Route 70 in Evesham Township. She parked her pick-up truck at a shopping center across the busy highway because the HOA for the Delancey Place community where she lived has a rule against parking commercial vehicles.

According to her roommate, Gerstenacker regularly parked at the strip mall because the homeowners association warned her that it would tow her truck if it was parked in the community. The roommate says she drove a Ford F-150 pickup truck similar to those several other Delancey Place residents park in the community without drawing the ire of the association. The difference is that Gerstenacker’s truck featured the logo of the company she worked for, identifying it as a "commercial" vehicle.

The editorial concedes that blaming the Delancey Place association for Gerstenacker’s death is not fair. "Several other circumstances could have contributed, including how much care she took in crossing a busy, dark state highway, and the actions of the motorist who struck her. (The driver stayed at the scene and cooperated with investigators)," it reads.

However, it also states that associations should avoid putting their residents between a rock and a hard place. It notes that there are no side streets along Route 70 where residents of the area’s multitude of developments can conveniently park non-conforming vehicles.

As a general concept, community association rules must be reasonable. While restrictions against the overnight parking of commercial vehicles may be common for community associations, the plaintiffs in this case may argue that the circumstances rendered the rule unreasonable for this particular association. However remote the possibility of an incident such as the one underlying this case may be, community associations considering the adoption or continued enforcement of commercial vehicle restrictions should consider the facts of this recent tragedy and evaluate the extent to which such rules should be adopted or enforced. The extent to which the unavailability or limited availability of alternate parking arrangements for the community’s residents plays a factor in the court’s consideration as to the reasonableness of the commercial vehicle restriction remains to be seen.

Some may claim that oversize vehicles or those towing trailers present more substantial issues to community associations than standard-size cars and trucks with commercial signage – and those may further claim that there is no legitimate or reasonable interest served by restricting the type of vehicle in this case merely because of the commercial signage displayed thereon given the ability of similar vehicles without such signage to be parked in the community. As such, it may be challenging for the community’s board members to justify why similar pickups without company logos were allowed.

Community association managers and directors should consider regular periodic reviews of their associations’ rules and regulations to help ensure they are in conformance with changes in laws and norms. By considering their options and acting in a uniform fashion for different classes of vehicles regardless of the presence of company logos, associations may maintain cohesive standards while demonstrating their progressive nature.

Our firm’s other community association attorneys and I write regularly about important issues for associations in our blog at, and we encourage association members, directors and property managers to enter their email address in the subscription box in the blog in order to automatically receive all our future articles.




FHA Financing Rule Changes Benefit Condominiums Nationwide

By Laura M. Manning

A new rule by the Federal Housing Administration that went into effect Oct. 15th is making it easier for first-time condo buyers, even those with less than perfect credit scores, to get approved for FHA-backed mortgages.

The new rule allows individual condominium units to be eligible for FHA mortgage insurance even if the condominium development has not been FHA approved. It introduces a single-unit approval process, which will make it much easier for many condominium residences throughout the country to become eligible for FHA-insured financing.

The rule changes also extend the recertification requirement for approved condominium communities from two to three years, and it allows more mixed-use projects to be eligible for FHA-insured mortgages. Condo developments will be eligible for FHA financing if their commercial/non-residential space does not exceed 35 percent of the total floor area (previously the maximum was 25 percent).

The FHA provides mortgage insurance on loans made by FHA-approved lenders, which benefit from the added protection against the risk of default. According to the U.S. Department of Housing and Urban Development, the rule change is expected to make 20,000 to 60,000 condo units per year eligible for the FHA-insured financing.

Prior to this change, if a development had not been pre-approved for FHA-backed financing, prospective condominium purchasers could only obtain conventional mortgages. According to the FHA, only 6.5 percent of the country’s condo developments are currently approved to participate, so the new rule will substantially open the potential pool for condominium loans under the program.

However, under the new rule, the FHA will only approve a limited number of units in any condominium community that has not been FHA certified. For developments with 10 or more units, no more than 10 percent of the residences can be FHA-insured.

Condominium developments seeking FHA approval cannot have over 10 percent of the residences owned by one investor or entity, and no more than 15 percent of the unit owners can be in arrears to the association. In addition, a minimum of 50 percent of the units must be owner occupied.

Securing FHA approval for a condominium community can enhance the sales of its units and, ultimately, the property values of all its residences. The approval process can be a bit complex, so condominium associations and their property managers should consult with highly qualified and experienced association legal counsel for their guidance and expertise.

Our firm’s other community association attorneys and I write regularly about important issues for associations in our blog at, and we encourage association members, directors and property managers to enter their email address in the subscription box in the blog in order to automatically receive all of our future articles.




Condo Associations Fined for Sea Turtle Lighting Violations Illuminate Need for Awareness, Compliance at Florida Beachfront Communities

By Roberto C. Blanch

A recent article by the Marco Eagle newspaper reported that the Marco Island Code Enforcement Magistrate recently issued $1,000 fines to three condominium associations for violating sea turtle lighting restrictions. For one of the properties, it was the second such violation in consecutive months.

The violations involved lighting in the pool areas that reflect on the oceanfront buildings. These lights could potentially disorient turtle hatchlings, causing them to move away from the shore.

The newspaper report also noted that the city’s code enforcement office had recently issued $1,300 in fines against six condominium associations for violating sea turtle lighting restrictions. To date, the municipality has issued 45 notices of violation during the 2019 sea turtle season, 25 more than in 2018.

The article also states that a local condominium resident recently posted in a Facebook group that she found a dead sea turtle hatchling inside of a Ziploc-type plastic bag in her building’s lobby accompanied by a note reading: "This is what you get when you don’t close the blinds. They crawl towards the light."

Marco Island is not the only Florida beachfront municipality that maintains and enforces lighting mitigation restrictions during the sea turtle nesting season, which runs from March – October. In fact, many Florida counties and municipalities have similar ordinances, and representatives of oceanfront community associations in Florida should consult with their legal counsel to determine the applicability of such laws to their community as well as the best manner by which they may comply.

Some of the steps suggested by experts to safeguard against violations of applicable restrictions include turning off any unnecessary lighting, closing the blinds/curtains, shielding lights away from the beach, avoiding decorative landscape lighting on the beach side, planting vegetation buffers between light sources and the beach, and avoiding flashlights and flash photography on the beach at night. These and other measures, some of which require owner communications and cooperation, can enable associations to avoid violations that could lead to costly fines and negative publicity.

Our firm’s other community association attorneys and I write regularly about important issues for Florida associations in our blog at, and we encourage association members, directors and property managers to enter their email address in the subscription box in the blog in order to automatically receive all of our future articles.




Condo Association Website Compliance Checklist

By Laura M. Manning

The Florida law mandating condominium association websites went into effect at the start of 2019. By now, all condominium associations with 150 units or more (excluding timeshares) should have launched a website that complies with the new law. Those that have not already created their website should do so immediately in order to avoid any potential repercussions.

Under the new law, password-protected condominium websites for the exclusive access by association members must include the recorded declaration of condominium and bylaws along with any amendments to each, the articles of incorporation filed with the state, and the association’s rules and regulations. The website must also include a list of all executory contracts and transactions to which the association is a party or under which the association or unit owners have an obligation.

After bidding for related materials, equipment or services, the website must include a list of bids received by the association within the past year. Summaries of bids in excess of $500 received from vendors during the past year for materials, equipment or services must be maintained on the website for one year. In lieu of summaries, however, the association may post complete copies of those bids.

Condo websites must also feature the current annual budget, the proposed budget to be considered at the next annual meeting, year-end financial reports, and any monthly income or expense statements that will be considered at a meeting. The current board member certifications for each director must also be included.

In addition, notices of all board and membership meetings along with their corresponding agendas and any other document(s) required for each meeting must be posted. All meeting notices must be posted on the homepage of the website or on a "Notices" subpage.

Time deadlines for posting notices online must comply with the Condominium Act. Notices of membership meetings must be posted online at least 14 days before the meeting. Notices of board meetings must be posted online at least 48 hours before a regular meeting or 14 days before a meeting to consider adoption of a special assessment or rules affecting unit use. Finally, any documents that unit owners will consider and vote on at a membership meeting must be posted online at least seven days before the membership meeting.

Some property management companies are providing their association clients with websites. Though these can be quite useful and streamline the process of starting a website from scratch, associations should keep in mind that any change in management can cause an interruption in service that leads to falling out of compliance with the statute. Associations and their attorneys should consider taking ownership of their website from their property management provider to avoid any gaps in service.

Associations should also designate a board member to oversee the ongoing website updates, and they should consult with highly qualified and experienced community association attorneys to help ensure that compliance with the statutory requirements is fully achieved.




Responding to Records Requests by Florida Community Association Unit Owner

By Roberto C. Blanch

Requests by unit owners to review official records of their community association should not present any difficulties for Florida condo associations and HOAs, yet records requests often become needlessly contentious.

Associations in the state are required to allow access to their official records within 10 working days after receiving a written request from a unit owner or their authorized representative. They may establish reasonable rules specifying the frequency, time, location and manner of record inspection and copying, but they cannot deny access. Those that fail to comply may be subject to compensate the requesting owner with a minimum of $50 per calendar day beginning on the 11th day after receiving the written request.

Some of the most common documents requested for inspection are certified copies of plans, permits and warranties provided by the developer, as well as copies of the declaration, articles of incorporation, bylaws, rules and regulations, accounting records and insurance policies. Association members also have the right to request a roster of all residents, but information such as health records, social security numbers, driver’s license numbers, credit card numbers, e-mail addresses, emergency contact information and other personal data are considered confidential records and should be omitted.

Legal documents involving ongoing litigation, information involving the sale or lease of units, personnel and salary records, and security information such as software passcodes used to safeguard the association’s data may not be accessible to members.

Association directors and property managers with any questions or concerns regarding member requests for official records inspections should always consult with highly qualified and experienced community association attorneys.

Our firm’s other community association attorneys and I regularly write about important issues for Florida associations in our blog at, and we encourage association directors, members and property managers to enter their email address in the subscription box in the blog in order to automatically receive all our future articles.




Added Challenges During Difficult Times

By Laura M. Manning

Changes and shakeups on community association boards of directors are common in Florida, and since the legislature has imposed term limits for association directors, communities are likely to see an even greater level of transitions to new board members in the years to come.

While it is still common to see the same directors serve year after year on association boards – mainly due to lack of participation – this practice does not present an ideal scenario for change. In a perfect world, board transitions should take place incrementally over time, enabling new board members to get up to speed on all the matters that are currently pending before the association with the help and guidance of experienced incumbent directors.

Wholesale changes to replace entire boards with new directors are never the best approach, yet unfortunately such total transitions do occur from time to time. Whether it is a board recall after a questionable election or a total overhaul election following some tempestuous controversy implicating the prior board, the new norm is entirely new boards comprised of completely novice board members taking over control from one day to the next.

What’s more, these total transitions are typically anything but smooth. Our firm’s other community association attorneys and I have experienced numerous total transitions under antagonistic circumstances, and they have all presented significant challenges.

A recent example involved an association whose directors were all voted out of office due to questions and problems involving a major remodeling and renovation project. Aside from complying with the Florida law mandating that they provide the new board with all of the association documents, files and financials records, the outgoing board members refused to meet with the newly installed directors to provide them with all the myriad details regarding the current state of the renovations and other association matters. The new directors were left to read between the lines of the association records to ascertain the exact state of every matter currently before the board, including the extensive renovations that were only partially complete.

Association boards that undergo major or total transitions to new first-time board members need to take a very proactive approach to get the new directors off to a strong start. If possible, new board members should schedule meetings with the prior board members to review all the issues that are currently before the board. New board members should also carefully review all the association’s records and financial documents and then discuss any questions that they may have with the property management and prior board members.

New directors should also schedule meetings with the association’s attorney, insurance broker, banker, accountant, contractor and all other professionals providing the association with important services and guidance. If the prior board members are unwilling to cooperate with the new directors, these professionals will offer invaluable assistance to enable the new board members to quickly gain an understanding of the current state of all matters pending before the board.

Also, keeping in mind that Florida law requires certification within 90 days after being elected or appointed to a condominium board, the best way to become certified and gain knowledge on how an association operates is by attending a complimentary board member certification seminar such as those offered by our firm on a regular basis.

The transition phase to a new board of directors represents a critical juncture for community associations. By taking a comprehensive approach and meeting with all of the individuals who can provide helpful guidance and information, new board members will be able to help ensure that their association does not miss a beat.




Condo Association Strategies, Services to Address Short-Term Rentals

By Roberto C. Blanch

Condominium associations and HOAs throughout South Florida as well as across the country are seeking effective responses to the problem of short-term rentals that are in violation of their rules and restrictions. These unauthorized rentals, which have become prevalent with the growth of Airbnb and other online home-sharing platforms, can create a revolving door for guests with none of the prior screening and background checks that are typically performed for new residents and tenants.

As many associations have already realized, enforcing rules and restrictions against short-term rentals can be very challenging. Savvy unit owners have been known to sneak their transient guests into properties by advising security that their visit is authorized.

As such, enhanced vigilance and guest-screening measures have become necessary, and many associations have developed and implemented new registration forms for use with guests and tenants along with written assurances and noncompensation statements indicating they are not paying for their stays.

That may not go far enough for some associations with owners who are highly determined to rent their units. For some, it has become necessary to retain a private investigator to gather and document incontrovertible proof that restricted rentals are taking place. Licensed private detectives can effectively investigate homeowners and tenants in violation of association bylaws and CC&Rs that prohibit turning units into short-term vacation rentals. Also, court actions may become necessary against some unit owners who flout the rules, and the evidence obtained by these investigators as well as their testimony can be very helpful in these proceedings.

Another option is offered by several service providers that have sprouted up to help associations and other landlords monitor and detect listings for rentals of their properties in the leading home-sharing websites as well as Craigslist. These companies use automated and proprietary search applications and algorithms to find and report listings in their clients’ communities and properties. Once the listings are identified, some offer additional investigation and enforcement services to help associations and landlords take the necessary steps to stop the rentals. Look for short-term rental monitoring and compliance in all the major search engines to find and research these options.

In addition to these monitoring and enforcement measures, the implementation of a clear fining or suspension policy, if permitted, is also essential for associations to address unauthorized short-term rentals. This will typically entail the adoption of a new rule in which all the fines and other consequences are delineated.

Some associations are responding by taking a more lenient approach and adopting new amendments, bylaws or rules to limit the number of nights a residence may be rented, which can offer a level of flexibility for owners while also avoiding the possibility of creating a constant flow of unfettered short-term guests.

Unit owners partaking in short-term rentals of their units need to be mindful of local laws or ordinances that may further restrict or govern the practice at their location. Condominium boards and management have also identified violations of such laws/ordinances as the basis for enforcement actions against unit owners.

The growth of Airbnb and its competitors in today’s sharing economy appears to have no end in sight. By working with experienced association counsel and utilizing these strategies and services when necessary, community associations can effectively enforce their rules governing short-term rentals.




Educational, Professional Resources Enable Owners to Answer Call of Community Association Board Service

By Laura M. Manning

Those who reside in association communities should view board membership in the same vein as a civic duty or public service. An effective board is essential for the financial and administrative wellbeing of associations, so all eligible unit owners should consider running for the board of directors as their contribution back to their community.

The responsibilities of serving as a director are neither too complex nor demanding for the capabilities and skillsets of most association unit owners. What is required is time and dedication, but not to the point where it becomes too daunting for the average owner.

To be a successful board member, it is essential to make effective use of the professional and educational resources available in the community. This begins with relying on highly qualified and experienced professionals such as attorneys, property managers, accountants, insurance brokers, etc.

At the start of one’s board service, Florida law requires that new board members become certified within 90 days of being elected or appointed to the board. The best way to do this is by attending an educational course that has been certified by the Florida Department of Business & Professional Regulation, such as the board member certification seminars offered by our firm on a regular basis. These seminars enable board members to gain a keen understanding for everything that the position entails. They cover all of the basics of community association governance and the laws which are involved, and they also touch on some of the most common problem areas that boards regularly encounter.

Board members should also make use of the ample online resources that offer the most vital information for associations. The Community Associations Institute, which is the largest organization representing community associations in the world, offers a great deal of helpful articles and guides at Also, our firm’s blog at is one of the leading sources for information for community associations in the state, and we encourage association members to enter their email address in the subscription box in the blog to automatically receive all of our future articles.

Expos and events that are aimed at community associations and its members are also very helpful, as are publications such as this one and the Florida Community Association Journal.

Those who are considering board service should first take part in their association’s meetings and perhaps serve on one of its committees prior to seeking election for a board seat.

Owners in community associations should answer the call of service to their fellow neighbors by serving on their board. By making effective use of the resources that are available to directors, owners can become equipped to make important contributions to the financial and administrative operation of their community.




Do Orderly Community Association Board and Member Meetings Exist?

By Roberto C. Blanch

All too often, community association attorneys are asked for guidance on how to prevent unruly behavior from disrupting board and owner meetings. Since items addressed at these meetings can have a significant impact on the welfare of an association and the financial responsibilities of its owners, conversations dealing with topics such as special assessments and annual elections can quickly become contentious. The following are helpful tips on how to try to keep your meetings on track and in order:

1. Use Robert’s Rules of Order – This common form of parliamentary procedure, including meeting protocols, allows meeting facilitators to manage meeting time effectively, all while ensuring that meeting discussions stay on topic. While not mandated in all associations as the method by which meetings are to be guided, owners and directors may be familiar with Robert’s Rules of Order, making this method a straightforward way for participants to follow and respect the meeting procedures.

2. Be specific about who can attend – The association should establish rules determining who can participate, and for what amount of time, in advance of the meeting. Generally, owners, directors and their respective counsel are the only people allowed to participate in such meetings.

3. Make the purpose of the meeting clear – Prepare an agenda that outlines the specific items to be discussed. Should the meeting require an owner vote on a topic, be sure to be transparent about the topic, providing participants with any supplemental documents they may need to make an informed decision.

4. Allow participation – Give each authorized attendee a voice, but restrict statements to those dealing with agenda items only and in accordance with the set time limitations contained in a rule. This will prevent anyone from derailing the meeting, as it enables the chairperson to control and minimize tangents.

5. Permit contributions – Rather than have an open-ended agenda item that opens the floor to miscellaneous topics, allow owners to submit desired talking points, on the specified agenda items, in advance of the noticed meeting. This method will enable owners to feel heard, while also avoiding the possibility of the board being blindsided by a topic that the directors may not be prepared to discuss.

6. Set the right tone – Set an example by remaining composed and following the meeting protocols that are in place. Be open to hearing other people’s perspectives and making the meeting feel more like a team effort, rather than a dictatorship.

7. Enforce the rules consistently – Make sure that all participants are following the rules. Do not allow someone to speak for longer than the allotted time just because they are making a good point. In the same light, take action against those who continue to break the rules. If providing a noncomplying attendee with a verbal warning does not stop them, then call for an immediate ejection the next time the person speaks out of order.

By working with association counsel to effectively apply the approaches outlined in this article, including having the right people in the room, streamlining meeting procedures, having effective rules in place, and using a clear and concise agenda, association meetings are sure to be more productive and effective.




Hurricane Preparedness: What Associations Need to Know

By Laura M. Manning

Hurricane preparedness is a significant undertaking for every community association in Florida. Being well prepared — and well informed — can determine whether association boards and their managers will sink or swim in the aftermath of a storm. Here are some helpful tips to enable associations to stay ahead of the 2019 hurricane season, which officially began on June 1st and will end on November 30th:

• Maintain an up-to-date paper roster of the current residents, and store it at an accessible off-site location. A separate list of residents who are remaining in the building should also be kept. Accounting for the whereabouts of all residents can be vital for emergency response teams who might have to provide medical assistance to any residents in need.

• Keep important documents at a safe alternate location. This includes a copy of the association’s governing documents, a certified copy of the insurance policies, bank account information, service provider contracts, and contact information for all residents, staff and association vendors.

• Take date-stamped pictures and videos of the entire property for insurance purposes. This should include the inside and outside of the property and all common areas, as well as equipment such as computers. Send these pictures and files to someone away from the state along with the contact information of your insurance agent and public adjuster.

• Consider pre-negotiated service contracts with vendors who typically assist in the aftermath of a storm. This can include water restoration companies to mitigate flooding, debris removal companies, and security providers. Have your attorney review ALL contracts before signing anything. Companies have been known to take advantage of associations. Your attorney will ensure that adequate protections are included.

• When creating the association’s hurricane preparedness plan, make sure you do so as if you will not be able to access your building in the aftermath of the storm. Make sure you have a plan in place for entry back to the property, designate who will be first on site, and create a backup plan for what will be done should local officials deny access to the building or close off the area. Also, implement a method where the board can call and hold an emergency board meeting, should one be necessary.

Being prepared in advance of a storm is fundamental for every community association in Florida. Though no one can control the intensity of a hurricane or where it decides to make landfall, community associations can control how prepared they are to deal with one.




Talk About a Condo Commando! Director Fires Gun to Shoo Away Teens from Pool

By Roberto C. Blanch

"I’m putting my own life at risk!" That’s what an Ormond Beach, Fla. homeowners association director is reported to have said after he fired his gun into the ground in an effort to shoo away two teenagers from the community pool.

Thankfully, nobody was hurt in the incident, which resulted in the arrest of Richard S. Marcelle, 66, for three counts of aggravated assault with a deadly weapon without intent to kill and discharging a gun in public.

According to reports in the Daytona Beach News-Journal and local television stations, the encounter took place at approximately 9:15 on the evening of April 22 when Julian Johnson, an 18-year-old resident of The Village subdivision, and a younger friend visited the community pool. Marcelle, who is a member of the HOA’s board of directors, approached and informed them that the pool was closed.

When Johnson noticed a sign indicating the pool is open until 10 p.m. as he and his friend were exiting, they pointed it out to Marcelle. Apparently, residents had not yet been notified, and new signs had not been posted, announcing a recent change to the pool hours.

As they attempted to re-enter the pool area, the association director intercepted them and brandished a handgun, which he then fired into the ground. One of the teens then asked: "Did you really just shoot a gun?" Marcelle’s response: "Yes, I am putting my own life at risk!"

A surveillance camera captured the confrontation on video, which shows that the teens were not armed nor acting in a threatening manner toward Marcelle.

This case takes the slang phrase "condo commando" to new extremes. It demonstrates the potential safety and liability issues that could arise when directors go rogue in their enforcement of association rules and resort to using weapons and threats of violence to carry out their objectives.

While many community association stakeholders may relate to various aspects of this case, the use of a handgun or other deadly weapon should never be an option to carry out association duties. For instance, many association representatives can relate to the need to promptly notify the community of modified or newly implemented rules or restrictions. Similarly, many communities may have to address residents and guests which may or may not be using facilities in alleged violation of the community’s restrictions. Some directors and managers may feel as though they are performing a thankless job, which in some instances even entails being confronted by residents or guests.

However, no matter what the circumstances might be, the role of directors and managers should never include the use of deadly force to enforce or carry out community association objectives. Doing so may expose not only the individual director or manager to personal liability, but it may also result in adverse legal consequences for the association.

Community association boards of directors and property managers should work with highly qualified and experienced association legal counsel to establish reasonable and effective policies and protocols for rules enforcement, and they should remain vigilant and act quickly to detect and prevent any individuals from employing their own over-zealous tactics.




Wrongful Death Lawsuit Illustrates Potential Repercussions of Inadequate Enforcement for Community Associations

By Laura M. Manning

The horrific murder of an 11-year-old Las Vegas girl stemming from a shooting into her home, which had been mistakenly targeted by local gang members, has led to a wrongful death lawsuit against the homeowners association and property management firm. The tragic case delivers a very clear and important message for community associations contending with problem residents who may pose a threat.

The shooting last November was caught on surveillance video, which shows multiple assailants firing indiscriminately into the home where Angelina Erives lived with her mother, step-father and two sisters. The shooters were confused as to the location of their intended target, which was a home two doors down the street, when they killed Angelina.

According to statements of the attorney for Angelina’s mother and siblings in several news reports, the neighboring property had been occupied by as many as 20 different tenants and the police had been called to that property on numerous occasions. The homeowners association and property management company were aware of the problems and had been in communications with the owner of the home. However, the association’s apparent enforcement of the community’s covenants, conditions and restrictions fell short of evicting the problem residents.

"Defendant Traditions HOA owed a duty of care to act as a reasonable homeowners association," reads the complaint. "These duties include, but are not limited to, ensuring that tenants renting homes in the Traditions community abided by CC&Rs and ensuring tenants and properties were not a danger or nuisance to the community. Defendant also owed a duty to enforce remedies provided for in the CC&Rs, up to and including eviction, of tenants who committed three or more material violations of the CC&Rs within a 12-month period."

The suit also states that the HOA and property management defendants’ "conduct in not enforcing the CC&Rs, allowing gang members to reside at the Property, and allowing the Property to become a danger to the community was despicable and so contemptible that it would be looked down upon and despised by ordinary decent people and was carried on by Defendants with willful and conscious disregard for the safety of anyone in the Traditions community."

If these claims hold up in court and a jury finds that the HOA failed to enforce its rules and evict tenants who had committed three or more material violations within a 12 month period or were demonstrably a danger to the community, the potential liability could be significant. The lawsuit is seeking punitive damages, which are intended to punish and make an example of the defendants as well as deter other associations and property management firms from similar conduct in the future.

Even without the potential negative outcome for the HOA in this case, the horrifically tragic death of Angelina and the allegations that it failed to provide for the safety and security of the community’s residents should send a clear message to all associations. The restrictions against problematic and potentially dangerous residents are among the most critically important measurers that associations are charged with monitoring and enforcing. Lax attitudes toward these provisions could lead to extremely dire and devastating consequences, so associations must always remain vigilant against violators and expeditiously enforce their restrictions.



Condos and Cameras:

Privacy Concerns Involving Doorbell Cameras

By Roberto C. Blanch

Home automation is a fast-growing segment of the tech industry, and the use of Internet-connected doorbell cameras has become particularly popular for those seeking an extra level of security at a reasonable price. These motion-activated cameras enable users to monitor everyone who passes by their front door, whether on a live or recorded video feed. While use of these devices may present less privacy issues for those residing in single-family homes, what about for those who reside within condominium buildings with shared hallways?

Proponents of doorbell cameras in condominium buildings may argue that the convenience and safety benefits they provide outweigh the privacy concerns and any issues of improper alterations to the common element portions of the condominium building. For example, a doorbell camera, which may also be capable of recording audio, may view and record within another dwelling unit that may be located across the hallway when the door of such unit is open. The use of a doorbell camera in such a scenario may be considered an invasion of privacy.

Similarly, some condominium governing documents restrict the right of owners to install devices or other alterations upon doors or other portions of the condominium property located outside of the unit. Doorbell cameras may be considered in violation of such restrictions.

Irrespective of which side of the argument is favored, condominium association boards and managers should evaluate the extent to which they have the authority to govern and restrict the use of doorbell cameras by unit owners in common hallways and whether such regulations further the use of doorbell cameras in a manner that balances the interests of the association to protect appearance of its common elements, reasonably preserve the privacy of its residents, and offer residents a convenient manner to add a level of safety.

For condominium boards of directors that are considering rules and regulations over the installation and use of doorbell cameras in common-area hallways, they should understand that it is always best to set practical and uniform policies in advance to help prevent any issues from occurring. For instance, boards should consider requiring evidence demonstrating that the recorded video will not be able to view inside of other units, and they could also impose a ban on cameras with audio recording capabilities to ensure that the conversations of neighbors cannot be monitored. Boards of directors may also wish to consider requiring that owners install, maintain and repair all fixtures involving the use and removal of the device.

It is important for condominium associations to work closely with highly qualified and experienced association legal counsel to formulate and implement the ideal approach toward doorbell cameras for their community. The privacy concerns are serious, and they should be tackled in advance of any potential issues that may arise.




Article in The New York Times Titled "When Condo Boards and Residents Clash, Legal Bills Mount" Features Input from This Writer

By Laura M. Manning

Our firm’s other community association attorneys and I are often called upon by journalists for our insights into the issues impacting condo communities and HOAs. When The New York Times "Wealth Matters" columnist Paul Sullivan recently decided he needed to turn to a highly experienced community association attorney for input for a major article on association living, I am pleased to say that he called on me.

Paul’s article, which is titled "When Condo Boards and Residents Clash, Legal Bills Mount," appeared in the Your Money section on Saturday, March 30, 2019. It focuses on some of the most common issues that can cause disruptions and financial strains for community associations.

The article reads:

My mother-in-law recently regaled me with a tale of intrigue, money and power in her South Florida homeowners association.

Seeking to raise about $6 million to refurbish the 20-year-old community, the association’s board had voted to assess each homeowner $7,000. But a group of vocal residents fought back, setting up a power struggle.

This conflict is nothing new to anyone who has dealt with a condominium board or homeowners association, which has well-defined obligations to the residents. As the overseer, it hires workers to cut the lawn, take out the trash, clean lobbies and common areas and maintain pools, tennis courts, golf courses and other amenities. If the elevator breaks or the roof leaks, the board gets it fixed.

But if it wants to do something cosmetic — renovate the lobby, add pickle ball courts or install a fitness center — the board needs to put its idea to a vote of the residents.

The article continues:

. . . In Miami Beach, Fla., a condo called Nine Island Avenue became a case study in how not to remodel a pool area. One resident, the daughter of the developer, sued the condo president over renovations that were done to the building, including changing the color of a koi pond, removing an old trellis and selecting new pool furniture. The case went to arbitration, and the judge sided with the resident, saying the changes were never approved by the residents and had to be undone.

Most of these battles are settled in arbitration, but the legal costs can still run into the tens of thousands of dollars.

Laura Manning-Hudson, a partner at the law firm Siegfried Rivera, said she used Nine Island Avenue as an example for boards thinking of acting without input from the owners. "I try to keep my clients out of litigation as much as possible," she said.

. . . When boards and residents clash, tempers flare, residents take sides and big legal bills often follow. Yet determining who is at fault is never easy. One person’s selfless board volunteer is another person’s condo commando. But at the root of many disputes are issues of transparency, misunderstanding, overreach and, of course, money.

Ms. Manning-Hudson said a good rule of thumb for board members was to put big decisions to a vote. But they also need to know that deferring required maintenance can make a board member personally liable for negligence. Whether postponing a large assessment to complete a cosmetic renovation is good or bad often depends on neighboring buildings. Sometimes, a new development can depress the value of the older properties nearby.

It concludes:

. . . Sometimes, however, residents win the battle. In my mother-in-law’s community, the group challenging the assessment prevailed. It ousted the board, halted the assessment and set aside the renovations. Moreover, it did so without incurring hundreds of thousands of dollars in legal bills.

I was honored to be selected by this business columnist with The New York Times to provide legal insight on association disputes for the newspaper’s millions of readers across the globe. Visit to read the complete article in the newspaper’s website.



Stricter Disciplinary Penalties for Florida Community Associations Now in Effect

By Laura M. Manning

A couple of years ago we saw the Florida state legis-lature add teeth to Florida’s condo and HOA laws governing theft, fraud, abuse and conflicts of interest. Recently, the Department of Business and Professional Regulation, the state agency that governs community associations, followed suit by implementing harsher civil disciplinary guidelines for condominium association infractions.

The new guidelines detail the civil penalties and disciplinary procedures for violations of the Condominium Act and the Florida Rules of Administrative Procedure involving accounting records, assessments, boards, budgets, common expenses, conflicts of interest, debit cards, elections, estoppel certificates, final orders, fiduciary duty, investigations, records requests, financial reporting, reserves, special assessments and websites.

For minor violations, the disciplinary guidelines call for the agency’s Division of Condominiums, Timeshares and Mobile Homes to issue the association with a written Notice of Noncompliance "due to the violation’s lower potential for public harm." If the association fails to comply with the stipulations called for in the Notice, it could result in sanctions and enforcement with monetary penalties being imposed in amounts between $5 and $10 per unit for each violation. The maximum penalty for minor violations is $2,500, for a single minor violation.

The new procedures also eliminate the notice requirement for violations that are considered "major," which constitute the bulk of the infraction types listed above. For example, while in the past an accounting or records request violation would result in a warning letter, now the Division is moving directly to the issuance of fines. For all "major" violations, the penalty imposed will range from $10 to $30 per unit for each violation, with a minimum penalty of $500, whichever is greater. The exact amount will be based upon any aggravating or mitigating circumstances pertaining to the violation. For both types of violations (minor and major), multiple counts of violated provisions or combinations of violations would be added together to determine the total penalty.

The new guidelines for disciplinary penalties should send a very clear message to associations and managers about the potentially significant ramifications of any failure to comply with the applicable laws and regulations. These penalties can take a severe financial toll on associations, which should work with highly qualified and experienced legal counsel to help ensure that they always remain in compliance.




Rules on Drones All Community Associations Should Consider

By Roberto C. Blanch

Drones have become extremely popular for those who yearn for the latest gadgets and gizmos. Many associations have already adopted rules to address the use of drones in their communities, and those that have not done so should give it serious thought and consideration.

When equipped with cameras, drones can be used to violate the privacy of association residents, not to mention their ability to cause major property damage, so associations should take a proactive approach toward developing and implementing rules and restrictions to protect the interests of those residing within their community. Specifically, some examples of the rules and policies that associations are implementing include:

1. Restricting the space within which drones may be flown, such as over their operator’s personal lot, or those lots of adjoining neighbors (with their prior permission).

2. Limiting drone use to association common areas that are away from roads, buildings, playgrounds and other amenities.

3. Assigning all risks and liabilities involving the use of drones to their operators, and requiring such operators to also indemnify the association, as well as its directors and representatives, against all claims involving drones.

4. Specifying that drones must be operated in accordance with all applicable federal, state and local regulations. (Adding this to an association’s drone regulations provide it with the ability to implement remedies, such as fines for violators).

5. Banning video and photography of others in the community taken from drones without such individuals’ prior written consent.

6. Banning the use of drones in such a manner as to cause a nuisance or disturbance to others in the community.

These and other rules and policies enable associations to maintain control and implement common-sense restraints over the use of drones in their communities. Association boards of directors should work with their property management and highly experienced legal counsel to develop and implement the drone rules and policies that are the best fit for their community.




Saga of Nightmare Neighbor at Orlando Condo Ends with Conviction for Stalking

By Laura M. Manning

Residents of the Phillips Bay Condominium in Orlando, Fla. are finally breathing a sigh of relief after a years-long saga of a nightmare neighbor appears to be coming to an end with a conviction for aggravated stalking. Residents are now awaiting a final ruling from the court on the penalty for the third-degree felony, which under Florida law can be as high as five years in prison, five years of probation and $5,000 in fines.

According to an arbitration order from the state’s Division of Condominiums under the Department of Business and Professional Regulation, the complaints against unit owner Marianna Seachrist (41) at the condominium association began in early 2014, shortly after she moved in to the community. Neighboring unit owners complained of constant pounding and rumbling noises at all hours of the day and night, and police were eventually called when Seachrist threatened to hire someone to kill one of the board members.

The loud and disruptive noises continued, and the threatening behavior escalated to the point that some residents lived in fear of walking around the community. After multiple incidents and calls to police, her downstairs neighbor was granted a temporary injunction for stalking protection in 2015.

After Seachrist was served with the injunction, deputies had to return to her condo three successive days because of noise disturbances. In subsequent visits they heard low-bass rumbling and knocking noises, and after obtaining a search warrant they rammed the front door and discovered an elaborate sound system, including three low-frequency speakers mounted to a board and placed face-down on the floor in the living room, hallway and closet. The speakers were also weighed down by dumbbells and cinder blocks, and they were wired to an amplifier using a tablet to play a recording on a loop of bass-clicking noises that would vibrate the room. The setup allowed for the remote operation of the system using a smartphone.

In addition to the arrest for aggravated stalking, Seachrist’s civil penalties handed down under the arbitration in early 2017 included $1,000 per month to be paid to the association to subsidize the rent for a law enforcement officer to reside in the community as part of the municipality’s courtesy officer program. The order also called for $1,875 to be paid to the association for damaged landscaping and related services.

According to the latest reports by Orlando’s WFTV (Channel 9, ABC) in February, Seachrist was recently found guilty of the stalking charges and has been jailed while awaiting sentencing. Her parents have sent an email to the judge asking for spiritual help for their daughter so she may "confess and find peace in her soul," according to court records. Her unit is now in foreclosure.

The arbitration order and news reports in this case paint a picture of a troubled unit owner who made life very difficult for her fellow neighbors. While it may have taken years to resolve, it appears that the condominium association and unit owners did everything that they could to address the issues caused by this unit owner through both civil remedies and criminal charges.

Other community associations dealing with troublesome and disruptive unit owners should take note of this case and follow similar courses of action with the help of highly experienced association legal counsel to address such issues through both civil authorities and law enforcement.




Similar Reports of Association Theft on Both Coasts on Same Day Send Message to Boards of Directors Everywhere

By Roberto C. Blanch

Reports of association theft, fraud and embezzlement are no surprise to the community association attorneys at our firm, but two similar reports on the same day from communities on both the east and west coasts of the country drew our attention.

The media reports of the incidents, which both ran on Thursday, Jan. 17th, are very similar. The one in the Nisqually Valley News newspaper in the state of Washington chronicles how the Clearwood Community Association filed a complaint alleging its former bookkeeper embezzled nearly $300,000. The suit against Dolanna K. Burnett, the former bookkeeper, and her husband claims that she wrote multiple checks to herself and covered it up in the accounting system dating back to 2014.

The newspaper article states Burnett had a previous conviction in 2014 for theft, identity theft and forgery. She used counterfeit refund checks totaling $17,000 while she was working for the Tacoma Health Department and deposited them into her personal account. This information was discovered last summer and taken to the Clearwood Board of Directors, which stood by its decision to retain her and continued to use her as its bookkeeper.

This led to an outcry by the unit owners, eventually prompting a majority of the board members and Burnett to resign from their posts.

By the end of the year, the board hired a forensic accountant and discovered evidence that the former employee had been stealing significant sums from the association’s general account for years. It turned the case over to the county sheriff’s office and filed a civil suit against Burnett.

The complaint lists numerous suspect transactions. It claims Burnett in 2016 wrote a check for more than $41,000 to her business, Lovolt Communications, Inc., then she deleted the transaction from QuickBooks and created a false new entry using the same check number and citing the recipient as "Thurston County Auditor."

The suit also alleges that on at least five occasions she initiated debit transfers from Clearwood’s accounts to Capital One and used association accounts to make payments to Quicken Loans, which is the holder of her mortgage. At the time of the filing, the suit alleged approximately $261,000 had been stolen, but the sum was expected to increase as forensic auditors were still working to uncover additional fraudulent transfers.

The other news coverage hailed from the city of Washington in North Carolina. Several TV stations there reported that local authorities had accused the secretary/treasurer of the Mixon Creek Homeowner’s Association of stealing more than $97,000 from the association’s coffers. The Beaufort County Sheriff’s Office charged 36-year-old Charlotte J. Cutler with embezzlement after obtaining multiple court orders and analyzing bank records.

In both cases, it appears individuals entrusted by the associations with the management of their finances were able to take advantage of their positions to conceal and disguise their thefts.

To avoid becoming a victim of this sort of fraud, associations must put in place precautions and safeguards. These include monthly reviews of all bank and credit card statements by at least two people, ideally including both a board member and management staff. There should also be an annual audit by experienced and reputable accountants to provide a careful review and independent certification of the validity of all financial records.

Associations should also consult with their independent accountants and lawyers to discuss other protocols to implement in order to avoid what occurred at these communities.

Embezzlement of association funds and community association fraud have garnered more governmental attention lately, as evidenced by efforts to expand accountability. These include revisions to condo statutes providing criminal penalties under Florida’s 2017 condo fraud laws, which were aimed at giving law enforcement a mandate to take cases of association fraud extremely seriously and allocate the resources to addressing these issues that they deserve. Florida associations must make effective use of the proper safeguards, and those that do become victimized are now better equipped to engage law enforcement than they were prior to 2017.




Establishing, Utilizing and

Setting the Ground Rules

for Community Association Committees

By Laura M Manning

Not enough community association boards make effective use of committees. Committees can be very useful when it comes to providing recommendations to the board and assisting the board with carrying out its duties and responsibilities. However, many associations do not take the time to establish committees or set parameters for their work so that committees may assist in the operation of the association.

Setting up committees is the responsibility of an association’s board of directors. The board must appoint the members of each committee at a properly noticed board meeting, during which the directors should provide instructions and set parameters for the scope of the committees’ responsibilities.

One of the best approaches is for boards of directors to use their annual meetings to establish various committees, appoint committee members and establish areas of purview for each. Each committee should have at least three members.

With the exception of the rules enforcement committee, board members may also serve as members on committees. Many associations choose to have a board member on each committee along with two non-director volunteers, as this enables the board member to keep their fellow directors abreast of the committee’s work and progress.

The only committee that is required by law for Florida community associations is the rules enforcement committee, which is also often referred to as the fining, violation or grievance committee. Associations that wish to levy fines and impose the suspension of use rights for violations must utilize such a committee to do so. Per Florida law, this committee cannot be comprised of board members or spouses or relatives of board members in order to maintain its independence from the board.

Fines or suspensions may only be imposed after the association provides at least 14-days written notice to the owner, occupant, licensee or invitee to be fined or suspended, and they must be provided an opportunity for a hearing before the rules enforcement committee. During these hearings, the committee should hear and evaluate the alleged violator’s side of the story behind the underlying fine. The hearing should be closed to all members except for the alleged violator and the corresponding unit owner, should the violator be their tenant. At its conclusion, the committee members should vote on whether to confirm or reject the fine or suspension levied by the board, which requires a majority vote to be imposed.

The other most common types of committees are the budget committee, which assists the board with creating the annual budget, and the architectural review committee, which is typically charged with reviewing any requests for construction, improvements or alterations taking place on association property or within a unit or exterior of a lot.

By utilizing committees and ensuring that they are staffed by dedicated volunteers, associations can facilitate their operations while also avoiding overburdening board members with too many issues and responsibilities. When first establishing committees, boards of directors would be well advised to consult with highly qualified association legal counsel regarding their creation and setting forth the scope of their responsibilities.




Community Association Directors, Officers are Protected from Frivolous Lawsuits

By Roberto C. Blanch 

There are many objections to board service that are often cited by unit owners who are reluctant to serve on their community association’s board of directors. While the time commitment is a prevalent concern, some believe that the post also brings with it an unreasonable level of liability and exposure to lawsuits by disgruntled unit owners.

To quell those concerns, such individuals should recognize that condo associations and HOAs typically carry Directors and Officers Liability Insurance (aka D&O insurance), which serves to defend and protect directors from lawsuits to which they may be exposed. Additionally, directors are also protected by indemnification provisions of the Florida laws governing not-for-profit corporations as well as the articles of incorporation of their association.

These protections shield directors from personal liability for monetary damages to the association or any others for any statement, vote, decision, or failure to act to the extent the director or officer was carrying out their duties. The exception to such protections under Florida law and association governing documents tend to arise with knowing violations of criminal law, transactions from which the director derived an improper personal benefit, willful misconduct, recklessness, or an act or omission which was committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety or property.

Under the relevant statutes and association documents, unless directors act in such an egregious manner, they should be indemnified by the association and any legal actions taken against them should be covered under the association’s D&O insurance. The coverage tends to include their legal defense and may extend to damages that may result from claims and/or negligence.

Essentially, so long as directors act in a reasonable manner and seek the guidance of qualified professionals regarding association matters, they will be able to rest assured that their indemnity and insurance protections will shield them from liability. The fear of exposure to frivolous lawsuits should not prevent any unit owners from answering the call to serve as a director or officer for their community’s association.





Excessive Levels of Radon Gas Raise Legal, Insurance Questions for Florida Condo Association

By Laura M. Manning

A recent news report about excessive levels of radon gas in a Florida condominium raises some interesting questions about the proper response from a condominium association and its insurance carriers on this issue.

The report, which appeared in late November in the pages of the Venice Gondolier Sun, chronicled how the owners of a unit at the South Preserve II of Waterside Village Condominium were surprised to learn that tests conducted at the behest of their tenants found excessive levels of radon in their unit. The odorless and colorless gas, which comes from the radioactive breakdown of naturally occurring radium found in most Florida soils, rocks and groundwater, is the second leading cause of lung cancer overall and is the leading cause among non-smokers. In Florida, one in five homes tested has elevated radon levels above the limits set by the Environmental Protection Agency, and the gas can be found in homes, schools, offices and high-rise condominiums.

According to the newspaper’s article, the unit owners sent the test results to their association, which hired a different company to conduct its own tests that yielded similar results. The radon levels in the residence were more than five times the level considered safe by the EPA.

The owners obtained an estimate for $3,100 to mitigate their unit, but per EPA rules the company would be required to inform the neighbors of the mitigation process. It also requested that the owners sign an "inadvertent collateral mitigation form" stating the company would not be held responsible for any environmental impacts on adjoining units.

After consulting with the association’s attorney and insurance carrier, the property manager told the owners that because the radon levels existed within the boundaries of their unit, it was the owners’ responsibility to mitigate. The association agreed to allow the owners to conduct the mitigation, but it also demanded that they first sign an agreement making the owners liable for any radon infiltration into other units caused by the process.

Needless to say, the attorney for the unit owners told them that they would have to be crazy to sign such an agreement. The owners believe that there are probably elevated radon levels throughout the building, which would make it the responsibility of the association to mitigate. They have banded together with three other unit owners who are also concerned about the issue and have requested a meeting with the board of directors and property manager to discuss the next steps.

For this and other Florida community associations, the prospect of excessive levels of radon and related mitigation procedures can present unexpected challenges with the potential for legal and financial repercussions. Unlike HOA communities with detached single-family homes, a condominium association’s concern is the possibility that the mitigation process could affect adjacent units.

Association boards of directors and property managers that are contending with issues involving excessive radon levels should consult with highly qualified and experienced association legal counsel to assess the situation and determine the most prudent course of action from a legal liability standpoint. If the excessive levels are pervasive throughout the property and not contained within a single unit, associations will need to carefully consider any response with the guidance and assistance of their insurance carriers and attorneys.






Helpful Tips for Successful Condominium Association Annual Meetings, Elections

By Laura M. Manning

This is the time of year when many Florida condominium associations conduct their annual meeting and election of directors. Here are some helpful reminders about the process to ensure that your community’s meeting and election avoid potential glitches and remain in compliance with Florida law.

Board membership should be viewed as being akin to a civic duty for condominium owners. So long as individuals meet the basic legal requirements, to wit: they are current on all of their financial obligations to the association and are not a convicted felon, they are otherwise eligible to run for a board seat in most associations.

The election notices that are distributed by the association to all of the owners begin with the initial notice that must be sent out at least 60 days prior to the election. This notice should include information on the deadlines for submission of notices to the association for those who intend to run for a board seat. All candidates must provide their association with a written notice of their intent to run for the board of directors at least 40 days prior to the date of the election. Registered candidates are then able to lobby their fellow owners, and they may submit a resume to the association at least 35 days prior to the election. The resume, which may not exceed one side of a standard piece of office paper, should contain details about a candidate’s professional and educational background as well as any other attributes and qualifications that they would like to include.

A second notice of the election, which must be distributed between 34 and 14 days prior to the election, must include copies of all the resumes submitted by the candidates together with the ballot and the inner and outer envelopes.

Keep in mind that the use of two envelopes is designed to help ensure confidentiality in the voting process. While the inner envelopes containing the completed ballots should not include any identifying voter information, the outer envelope must include the name of the voter, their unit number and their signature. Failure to include the unit number and a signature on the outer envelope will result in the envelope being discarded and not counted.

For the annual meeting itself, associations should make blank ballots and envelopes available for use by the owners who did not already vote by mail. It is not necessary for a quorum of the unit owners to attend the annual meeting in order to hold the election, however at least 20 percent of the owners must have cast a ballot in order for the election to proceed.

At the election, the tallying of the votes must be handled by a committee of independent and impartial unit owners who have been appointed by the board and do not include any current board members or their relatives, or anyone running for the board or their relatives. The committee is tasked with verifying that the voters identified on the outer envelopes are indeed eligible to vote and have signed the envelopes. Only once the outer envelopes have been verified and a determination made that at least 20 percent of the owners have cast a ballot, then the committee may open the envelopes and tally the ballots.

Bear in mind that while Florida law now allows for online voting for board elections, the traditional process of using paper ballots must also be made available to the members. Boards of directors that have adopted resolutions to offer electronic voting must utilize a system that verifies voters’ identity and eligibility.

Associations that wish to adopt online voting or have questions about all of the necessary procedures under Florida law and their own governing documents should work closely with highly qualified and experienced community association attorneys to help ensure that their annual meeting and election run as smooth possible.




Takeaways from HOA’s Handling of "Parkland Strong" Yard Sign Controversy

By Roberto C. Blanch

In the aftermath of one of the worst school shootings in U.S. history, the residents of Parkland in Broward County have taken pride in the resilience and unity that they have demonstrated as a community. Memorials and messages of support were placed throughout the neighborhoods and enclaves surrounding Marjory Stoneman Douglas High School, and signs reading "Parkland Strong" and "#MSDStrong" became ubiquitous.

However, at the home of Donna Ali, whose daughter is a student at the high school, the Parkland Golf & Country Club HOA had requested that her "Parkland Strong" yard sign as well as those of some of her neighbors should be removed.

According to a report by WPLG-ABC Channel 10, the HOA sent an email to residents reading: "In keeping with the memorial plans, the community relations committee is asking residents that have shown solidarity with the MSD family by placing memorials in their yard to take them down by Nov. 15." The community is apparently working on installing a permanent memorial, which is expected to be completed by February.

After hearing about the station’s report, the board of directors of the HOA distributed a news release stating that the signs will now be allowed to stay up until the permanent memorial has been completed. It reads: "The board immediately decided to suspend the removal request until the permanent memorial is complete as our community does not want to bring any additional pain to anyone, especially an MSD student."

The HOA’s quick response to the media attention and its effort to mitigate the damage by revoking its request and allowing the yard signs to stay should be applauded. However, community association boards may find it difficult to balance their desire to empathize with residents seeking to commemorate a community-wide trying moment with their obligation to enforce the provisions of their governing documents. Such occasions should occur sparingly and in pursuing similar efforts, community association board members should work with qualified community association legal counsel to carefully communicate to the residents and owners the basis and duration for any departures from the restrictions. In this situation, once the community’s memorial is set in place, the board will likely need to explain to the homeowners that the association’s rules must be fairly and uniformly applied in order for the board to be effective in maintaining the property values for all the community’s owners.

Other associations finding themselves in similar straits, for instance, with the requested removal of yard signs should consult with qualified and experienced community association counsel in order to find a middle ground that would appease the interests of both sides. Perhaps limiting the size of the signs, the timeframe during which they may be displayed in the aftermath of incidents, and their placement near the front porches of homes could enable association boards to enact rules conceding some limited use of signs.

Compromises such as these may enable associations to avoid confrontations while still maintaining an adequate level of civility, compassion and control over the enforcement of their rules and restrictions.




Florida Condominium Association Website Requirements to Take Effect Jan. 1

By Michael E Chapnick

Earlier this year, the Florida legislature passed an important update to the new condominium association website requirements that the state’s lawmakers codified during the 2017 legislative session. The most important change was to extend the deadline for associations to launch their websites from July 1, 2018 to Jan. 1, 2019, providing condominiums and their property managers with an additional six months to develop and launch their sites.

In addition, the new website requirement no longer applies to multi-condominium associations with combined totals in excess of 150 units if none of individual condominium properties operated by the association contains 150 or more units.

The 2018 statutory amendments also changed some of the posting requirements to allow for the posting of summaries of certain documents rather than the documents themselves. The official records that must be posted on the new websites also now include monthly income or expense statements as well as all bids in excess of $500 received from vendors during the past year for materials, equipment or services.

It is important for associations to recognize that the website posting requirements do not negate other statutory requirements, including the posting and mailing of notices. They simply add to them.

With the Jan. 1 deadline now just a little over a month away, Florida condominium associations (excluding timeshares) with 150 or more units should be well on their way to developing and finalizing their websites. They should designate who will be in charge of uploading and updating the required documents, and they should also consult with qualified and experienced community association attorneys to ensure that compliance with the statutory requirements is achieved.




Golf Cart Liability Issues for HOAs Exposed by Accident Involving Teens in Florida Community

By Laura M. Manning

The recent news about an accident inside G.L. Homes’ Seven Bridges community in Delray Beach involving four children on a golf cart highlights the potential legal liabilities for Florida associations concerning kids driving golf carts.

According to a report by, four children were riding a 2014 EZ Go "Freedom" Golf Cart on the community’s main street when the unlicensed 15-year-old girl driving the cart darted in front of an oncoming car. The car, which was driven by Sunny Isles resident Eduard Hiutin, crashed into the golf cart, causing its driver and passengers, ages 11, 13, 14 and 15, to be ejected onto the street. The children were transported by ambulance to the trauma unit at Delray Medical Center, where one was treated for a catastrophic injury.

The golf cart driver, who lives in the community along with two of the other children, was charged with operating a motor vehicle in a careless or negligent manner as well as failure to yield to the right of way.

While the parent of the golf cart driver can be sued for negligence in such a case, the association can also be named as a defendant. In fact, according to the Seven Bridges community’s governing documents filed with the clerk of courts, Seven Bridges requires a golf cart driver to be at least 16 years old and carry a valid driver’s license. If enforcement of this rule was lax, potential liability could be alleged.

Typically, insurance companies and lawyers representing the injured in any golf cart crash will investigate every aspect of the incident. They will look into the association’s actions and warnings to enforce its rules involving underage cart drivers, and whether any notices had previously been sent to either the driver or their parents. They will also explore the actions of the parent/owner of the vehicle.

Florida law states that golf cart drivers may be as young as 14, so long as the cart is being driven in a private community that is registered with the Florida Department of Transportation as a "Golf Cart" community. Essentially, this enables gated communities to set and enforce their own rules regarding the minimum age and driver’s license requirements for cart drivers.

For communities such as the one in this case in which golf carts are prevalent, associations must develop and enforce their own rules and restrictions for age and license requirements for drivers, and security must monitor and stop all offenders in order to provide effective enforcement. Otherwise, the community risks potentially significant exposure and legal liability in the event there is an accident involving an underage golf cart driver.




Updated Methods for Preserving Association Governing Documents Under Marketable Record Title Act

By Roberto C. Blanch

The Florida Marketable Record Title Act (MRTA) re-quires HOAs to reaffirm and renew their covenants and restrictions 30 years after they were originally recorded in the local county records. MRTA was created to extinguish claims to property which are at least 30 years old in an effort to stabilize property law by clearing old defects from the chains of title to real property, limiting the period of record searches, and clearly defining marketability by extinguishing old interests of record.

One of the unintended consequences of the Act is that the declarations of covenants, conditions and restrictions recorded by HOAs may be set to expire after 30 years of the date in which they were recorded. Keep in mind that for most HOAs, if the residents are no longer compelled to act in accordance with the community’s declaration, the results could be catastrophic for the associations’ administration and finances.

The Florida legislature passed a law earlier this year to update the process for HOAs to renew and preserve their covenants and restrictions under MRTA in order to keep them in place after the 30-year term. Under the new law, which is now in effect, at any time during the 30-year period following the effective date of the title for the covenants and restrictions of a community association, the association may preserve and protect those covenants or restrictions from extinguishment by following more simplified filing procedures which include the following:

• The filing of a written notice in accordance with Section 712.06 (similar to prior requirements); or

• The filing of a summary notice as required under Section 720.3032(2); or

• The filing of an amendment to a community covenant or restriction that is indexed under the legal name of the property owners’ association and references the recording information of the covenant or restriction to be preserved.

The summary notice must have the legal name, mailing address and physical address of the association; the names of the affected subdivision plats and condominiums or, if not applicable, the common name of the community; the name, address and telephone number for the current community association management company or community association manager, if any; indication as to whether the association desires to preserve the covenants or restrictions affecting the community or association from extinguishment under MRTA; a listing by name and recording information of those covenants or restrictions affecting the community which the association desires to be preserved from extinguishment; the legal description of the community affected by the covenants or restrictions, which may be satisfied by a reference to a recorded plat; and the signature of a duly authorized officer of the association, acknowledged in the same manner as deeds are acknowledged for record.

The signed notice must be recorded in the official records of the clerk of the circuit court or other recorder for the county, and a copy must be included as part of the next notice of meeting or other mailing sent to all association members.

The new law also stipulates that governing documents can be preserved by a recorded amendment under certain conditions, but amendments recorded prior to the effective date of the new statute may not qualify for preservation purposes.

The new amendments to the MRTA statutes will help many associations to streamline the process for the preservation of their governing documents. However, it is imperative for associations to consult with highly qualified and experienced legal counsel in order to ensure that they select and utilize the best possible method for their specific needs.




Couple Convicted, Sentenced in HOA Fraud Scheme in Lantana

By Michael E. Chapnick

A Lantana couple that had been arrested for defrauding their homeowners association were recently found guilty and hit with a severe jail sentence and restitution order. The judge in the case found William and Darlene Cox, the former president and treasurer of Lantana Homes HOA (respectively), guilty of embezzling from the association that they helped to lead.

William Cox was sentenced to three years in state prison, while Darlene Cox was placed on probation for five years, the first of which must be served with a monitor. They were also ordered to pay more than $360,000 in restitution to the HOA.

According to a report by CBS 12 News in West Palm Beach, the current leaders of the HOA are frustrated because Darlene Cox is still living in the community. She remains a neighbor amongst all of those she defrauded and robbed.

Darlene and her husband were arrested in November 2016 after the current board discovered financial discrepancies in the association’s accounts. According to the arrest report, the two were accused of taking the HOA funds and using the money to pay their personal car insurance as well as their homeowners and life insurance premiums.

After the change in the laws governing condominium associations and HOAs last year focusing on antifraud measures and avoiding conflicts of interest among board members, Florida law enforcement has been issued a mandate to take cases of association fraud extremely seriously and give them the resources they deserve.

Cases such as this illustrate the importance for associations to use effective precautions and safeguards in order to help ensure that they do not become a victim. These include monthly reviews of all bank and credit card statements by at least two people, ideally including both a board member and management staff. There should also be an annual audit by experienced and reputable accountants to provide a careful review and independent certification of the validity of all financial records.

Together with the proper safeguards and vigilance in order to help prevent theft, fraud and abuse by association and management employees, the criminal penalties prescribed by the state’s new condo fraud law have now made associations better equipped to engage law enforcement than ever before.




Let Reason Dictate in Restrictions of Commercial Activity by Community Associations Against Residents

By Laura M. Manning

Many associations’ governing documents include clauses that prohibit commercial business activities from being conducted in a resident’s unit. Some include a blanket stipulation banning commercial activity altogether, while others make a distinction between permissible and impermissible activities. While it makes sense for associations to want to regulate and restrict businesses from operating within their communities, HOAs and condominium associations should take a prudent approach that is guided by reason.

When considering how to regulate and enforce restrictions against commercial activities, associations should focus on the impact that particular activities have on the community and the quality of life of those who make it their home. Today’s technology allows for a great deal of work to be done from home with no disruptions whatsoever to the community at large. Rather than attempting to ban all commercial activities in a community, the better option is to specifically delineate in the governing documents the types of activities that are not allowed.

Some of the activities that communities wish to ban are those that entail significant vehicular traffic, including from clients as well as vendors and delivery vehicles. The stockpiling of chemicals or other flammable/hazardous materials in residences and garages is also a concern, as is the number of commercial vehicles being parked in the driveways and parking areas in front of homes.

Rather than attempting to impose a blanket restriction on all commercial activities, which is impossible to enforce given that many people are able to work very effectively and discretely from their home offices, associations should consult with highly experienced and qualified community association attorneys to develop and implement reasonable restrictions that make sense and can be effectively enforced.




Fight Over $20,000 Special Assessment Illustrates Worst-Case Scenario for Community Association Financial Planning

By Roberto C. Blanch

A recent report by the Jacksonville, Fla., ABC network affiliate exemplifies the calamitous results that can ensue when condominium associations and HOAs are inadequately prepared to meet the long-term maintenance needs of their communities. The station chronicled the battle that is taking place at the Fountain Gate Condominium, which is composed of a number of buildings that were originally built in the 1980s and now need their wood siding replaced.

According to the report, the association’s board of directors has approved the procurement of a bank loan for $1.5 million for the project. It would be repaid by imposing a special assessment of approximately $20,000 per unit, to be paid monthly over seven years.

One of the directors on the association’s board, Jody Kilgore is against the special assessment proposal, which met with an immediate backlash by the unit owners. She is quoted in the report saying that the owners, who are mainly retirees in their 70s and 80s on fixed incomes, "feel like we’re being railroaded."

She goes on to say that the unit owners are being left out of the decision-making process, explaining that Florida law requires the approval of 75 percent of the owners for material changes such as this repair project. Instead, she notes that the board of directors alone voted to approve the changes.

The unit owners have not taken it lying down. They have filed for a recall of the current board with the Florida Department of Business and Professional Regulation, which could result in replacing the directors and property management company.

The association’s attorney is also quoted in the story. He explains that the board has a fiduciary responsibility to maintain the property, and this situation represents a serious challenge. He notes that the repairs need to get done, and the board of directors has adhered to state law and its own governing documents by approving the project and special assessment via the board vote and without the approval of 75 percent of the entire association membership.

While the attorney may be correct, the disruptions and financial strains that this situation is causing at the community continue to take a heavy toll. In order to avoid the friction that results from the impact of funding long-deferred maintenance projects such as the one in this case, associations and their property management should consider planning for the future by establishing and funding reserve accounts for major maintenance and renovation projects, and by annually assessing their financial position to adjust their long-term strategies as needed.

In fact, condominium associations are statutorily required to fund such reserves and may only waive them by a vote of the owners. In many communities, owners vote to waive the required funding of reserves, resulting in the consequences encountered by the association in this case. In light of such consequences, Florida statutes were revised to require certain disclaimer language on voting documents intended to be used for owners’ meetings at which a vote to consider waiving reserve funding would be considered.

In addition to the foregoing, association directors and managers should consult with highly qualified and experienced professionals to consider their long-term financial planning decisions and the impacts that may be felt as a result of a waiver of reserve funding. These reports and discussions should take place during board meetings, and all association members should be encouraged to attend so as to stay informed and provide their input.

By applying these fairly straightforward best practices for associations to adequately prepare and plan for the funding of their future property maintenance and renovation needs, community association boards of directors and mangers may avoid the potential for serious outcries by the unit owners that may further spill over to public spats showcasing the discord in a community on the local evening TV news.




Fair Housing Discrimination Suit Against Condo Association Offers Cautionary Tale on Overzealous Occupancy Restrictions

By Michael E. Chapnik

Condominium association boards of directors are al-ways considering measures to help maintain and enhance the quality of life of their community’s owners and residents. Some associations grow concerned about too many occupants per unit and the burden that additional residents place on a community’s amenities and services, so they decide to implement occupancy restrictions in order to limit the number of people residing in each unit.

However, as a Palm Beach County condominium recently found out, overly aggressive occupancy restrictions have the potential to run afoul of the federal Fair Housing Act bans on discriminatory housing practices against couples with children, and nonprofit housing agencies are willing and able to take up the case of aggrieved residents or proposed residents.

A fair housing advocacy group called the Fair Housing Center of the Greater Palm Beaches filed suit in federal court recently against the condominium association for the Fontana Condominium in Palm Beach as well as its president and property manager. The suit alleges that the defendants have discriminated against families, including those with minor children, by enacting and enforcing policies that limit the number of persons and children who may reside in the community’s units. It is seeking preliminary and injunctive relief as well as damages for the alleged discrimination against familial status in housing that violates the Fair Housing Act and the Civil Rights Act of 1968. The suit also seeks punitive damages, attorneys’ fees and a court order mandating that the defendants establish a victims’ fund for those were victimized by their discrimination.

The suit alleges that in 2010 the condominium community adopted a two-person maximum occupancy restriction for all of its units, which each have two bedrooms. It states that the occupancy policy of the U.S. Department of Housing and Urban Development adopted in 1998 holds that two occupants per bedroom is deemed to be reasonable under the Fair Housing Act. The suit also alleges that the two-person limit imposed by the condominium violates the local occupancy code in Palm Beach County, and the policy resulted in familial status discrimination when it was used to deny the tenancy of a couple with their infant child.

From a cursory review of the 16-page complaint, the plaintiffs appear to have a strong case against the association and its management, which will likely incur significant expenses in their defense. The end result will be a significant amount of legal and financial hardships for the community, all of which it may have been able to avoid by first consulting with highly qualified and experienced legal counsel prior to implementing the two-person occupancy restriction for its two-bedroom residences.

Condominium associations in Florida and across the country should take note of this case, as it illustrates the potential pitfalls that can come as result of overzealous occupancy restrictions.




HOA’s Tree Trimming Leads to Code

Enforcement Nightmare

By Laura M. Manning

One of the key takeaways from Hurricane Irma was a reminder about the importance of keeping trees properly trimmed in order to avoid damage to power lines from downed foliage. However, a recent report by Channel 7 News (Fox) in South Florida about a Hallandale Beach HOA’s troubles with the city over its allegedly exorbitant tree trimming serves as a cautionary tale for all Florida community associations.

According to the report, the insurance company for the Hallandale Village Homeowners Association asked association president Richard Masone to trim the trees around the property at the start of this year’s hurricane season. Masone complied and asked the association’s regular landscape maintenance company to trim the trees.

The job pleased the community’s insurer, but Hallandale Beach Code Enforcement officers were not happy with the tree trimming. City Manager Roger Carlton called the trimming unacceptable, noting that it "enormously exceeded any reasonable amount."

The association was told by the city that the trees were "hatracked," or over-trimmed, and they ordered the community to dig up and replace the trees, which entails hiring an arborist and pulling permits for each of the 10-15 trees that would need to be replaced.

Masone indicates in the station’s report that this has been a learning experience, and the association’s attorney has written to the landscaping company seeking its cooperation. He hopes that the company, which is licensed by Broward Country, will replace the trees, and notes that its representatives had indicated that they knew the proper way to do the job.

The company did not return Masone’s calls, but it will need to take part in the investigation that Broward County officials have indicated they intend to open after they receive an affidavit from the city of Hallandale Beach.

As the association president indicates in the news report, this has been a learning experience for his HOA, and it certainly also offers an important lesson for all Florida community associations that are planning to have their trees trimmed. Many local municipalities keep a watchful eye for excessive tree trimming that detracts from the verdant aesthetics of their neighborhoods. Associations should work exclusively with licensed and insured landscaping companies, and they should consult with experienced legal counsel to help ensure that they are properly indemnified from liability resulting from excessive trimming under their contracts with these vendors.




Unit Owner Charged with Attempted Murder, Arson in Plot to Burn Down Condo Tower

By Roberto C. Blanch

The recent news report by CBS4 Miami about a Miami Beach man who was charged with attempted murder and attempted arson for plotting to burn down his condo building should serve as a wake-up call for all condominium associations in Florida and across the country. It appears to be a case in which the warning signs may have triggered a call to authorities that averted a horrific tragedy just in the nick of time.

The report states witnesses told police that Walter Stolper, 72, had shown aggression toward his fellow residents and the members of the association’s board of directors at their building at 56th Street and Collins Avenue. As a result, he was facing an eviction action.

The breaking point for the initial call to authorities came when Stolper spoke with his friend Luis Diaz, who states in the station’s report: "He told me he was tired of the association and the Jews in the building and he wanted to do something about it. He said he wanted to burn down the building. At first, I didn’t think he was serious, but then I heard him talk about blocking the fire department and their hoses, I realized he was serious and I had to do something."

Diaz contacted the management office at the building, and the management called the police. Detectives went to the property, searched a storage room belonging to Stolper and found 28 containers with gasoline, sulfur powder and potassium nitrate. He was later intercepted by police with two filled gasoline tanks as he was coming back into the building, where he had already disposed of eight additional gasoline canisters down the trash chute from the 15th floor.

When the officers arrived at the building, they could smell gasoline, and a resident and security guard also reported strong odors of gas in the hallways and elevators. Inside of Stolper’s 15th-floor residence, the officers found Nazi reading material as well as a swastika and two firearms. Police also said he had purchased two electrical fans to fan the flames as well as padlocks to place on a nearby firehose cabinet in order to keep firefighters from accessing it. He had also destroyed some of the building’s smoke detectors.

Stolper was arrested and charged with attempted murder and attempted arson. "We do believe that we were minutes away from a potentially deadly situation," explained Miami Beach Police spokesman Ernesto Rodriguez in the TV station’s report.

Thankfully, this incident ended peacefully without any injuries or property damage, and the board members and unit owners at the Miami Beach tower can breathe a sigh of relief after averting a potential tragedy.

However, this case should serve as an important reminder for community associations and property managers in condominium and HOA communities throughout the country. Disgruntled or mentally ill unit owners may pose serious and potentially fatal dangers for their fellow neighbors. It is incumbent upon community association directors, property management and those who reside in community associations to exercise prudent vigilance and report any suspicious activities. By remaining vigilant and using sound judgment as to alerting law enforcement, communities with associations are able to help avert potential tragedies such as the one that was being hatched in this recent case.




Property Insurance Claim Denied?

Try, Try Again

By Michael Chapnick

After Hurricane Irma made landfall in Florida last year, many property owners were surprised at how unfamiliar they were with the property insurance claim process – mainly because of Florida’s remarkable hurricane-free streak. However, the 2017 Atlantic hurricane season marked the end of that winning stretch, catapulting many Floridians who experienced property damage into insurance claim purgatory.

By now, community associations, business owners and homeowners who filed a claim relating to Hurricane Irma damage should have heard back from their insurer as to whether their claim was denied, determined to be under the deductible or fully covered. For many policyholders, their insurer’s coverage decision came back as a disappointing slap in the face, leaving them as discouraged as they felt after receiving the pricey estimates for their repair costs.

If you are one of the many whose insurance claim got flat-out denied, received a letter indicating your claim was below your insurance policy’s deductible, or you received just a fraction of what it will actually cost to repair and rebuild your property, know that you are not alone. The grueling, long battle to restore your home or business may be far from over, but highly qualified and experienced insurance attorneys and independent adjusters are able to help you fight the good fight.

For the past couple of months, our firm’s attorneys have served as advocates for clients whose recovery efforts fell short of the actual repair costs. We have been able to recover millions of dollars for community associations, business owners and homeowners who chose not to give up and fought relentlessly to return their property to its original condition.

Policyholders need to understand that their insurer’s coverage decision is not final, and it may well be subject to challenge. We encourage anyone who received a denial letter, were told that the claim was below their deductible, or were unable to repair the damage caused by Hurricane Irma to obtain a second opinion and consult with an experienced attorney. It is likely that these insureds are entitled to receive additional money for their repair costs.

Though the road to recovery is filled with uncertainty and complexities, qualified attorneys can help you navigate the aftermath and become whole again.




Size Matters: Should Your Condo Super-Size Its Board of Directors?

By Laura M. Manning

For many condominium associations in Florida, the amount of board members serving on a board of directors is usually dictated by the association’s governing documents or bylaws. There are associations, however, whose documents are silent on the number of directors that can be elected. In the absence of such a provision, condominium associations would have to refer to Chapter 718, Florida Statutes, which provides that a board of administration of a condominium shall be composed of five members. For those bylaws that do include language with specifications regarding a board’s size, the average number of board members serving typically ranges from three to five board members. But is there an ideal size?

While there is no "right" size for a board of directors, community associations that are considering decreasing or increasing their existing board’s size should always evaluate the pros and cons of doing so. It is possible for a board to be either too big or too small. For example, associations that typically have a great deal of qualified candidates running for seats on the board might contemplate increasing their board’s size to accommodate those applicants, while benefiting from the value that each individual brings and the efficiency that comes with working in a bigger group.

However, there also may be unintended consequences of increasing the number of directors on a board. For instance, obtaining a quorum for the meeting requires the presence of a greater number of directors, or having to discuss and consider board action with additional opinions can prolong decision making, thus causing a board to be inefficient.

By the same token, boards with fewer directors are faced with a different set of challenges. For example, elected board members that fall off the radar or abandon their position can make it impossible for a board to move forward and take action with respect to association business.

Additionally, a three-person board needs to be mindful that one-on-one interactions between directors regarding association business may be prohibited by "sunshine laws" outside of properly noticed board meetings, as two directors would constitute a quorum.

It is important for condominium associations to evaluate their reasoning for wanting to change their board’s size prior to making any definitive changes. In doing so, they might realize that their existing size is just right, after all.




HUD Expected to Issue Revised Guidance on Requests for Emotional Support Animals

By Roberto C. Blanche

Some good news for community associations struggling with questionable requests for the approval of emotional support animals: The Department of Housing and Urban Development is expected to issue revised guidelines later this year focusing on ESA requests and approvals. According to The National Association of Realtors, the new guidelines should give landlords, property managers and community associations greater authority to verify that the need for such an animal is legitimate.

The NAR reports it has had separate conversations with HUD and disability rights groups. Senior Policy Representative Megan Booth recently told attendees at a conference that the disability rights groups have expressed concerns over the widespread abuse of requests for companion animals, as they believe it is already making it more difficult for residents with legitimate needs to receive the approvals they require.

It appears that the new HUD guidance will be specifically aimed at curtailing the use of online ESA certification mills.

"HUD is willing to put a caveat [into their guidelines] that tenants must have a letter from a licensed health care provider that they have a demonstrated ongoing professional relationship with, not just on the internet," Booth said. She concluded that landlords, property managers and associations would be permitted to call the health care provider to verify their relationship, and hopefully there will be language further clarifying what constitutes a reasonable accommodation for ESAs.

While some argue that there are many legitimate psychological and emotional disabilities that benefit from the use of emotional support animals, unfortunately the rules governing ESAs are frequently abused in order to circumvent legitimate community association pet restrictions. In fact, a cursory search of "emotional support dog" on Google produced more than five million results and provided links to multitudes of kits with "emotional support dog certifications" for sale.

Given the growing popularity of requests for emotional support dogs and other animals for both legitimate and illegitimate disabilities, community associations with pet restrictions should work closely with highly experienced legal counsel in order to avoid any potential legal liabilities stemming from denials of these requests.




Associations Should Keep Board Meeting Minutes Succinct, Non-Political

By Michael E. Chapnick

One of the changes to the Florida condominium laws from this year’s legislative session that are set to take effect on July 1 is the mandate that the minutes of all condominium association board meetings must now be kept permanently as opposed to seven years, as the law previously held. This new requirement should not present any difficulties for the state’s condo associations, as recording the meeting minutes and keeping them available for inspection as state law requires are basic functions of association administration.

The minutes of association board meetings must reflect all of the votes or abstentions of the directors in attendance. They are extremely useful association records for those who wish to gain an understanding for all of their association’s undertakings and decisions over a period of time.

Associations should record their meeting minutes in a well organized and uniform format, and the information should be very brief and to the point. The minutes should reflect the format and topics from the meeting agenda, and many associations break them down into standard sections for attendees, reports, old business, new business and others.

Meeting minutes should avoid lengthy explanations and detailed descriptions based on board member discussions that take place prior to votes. A simple note indicating that a matter was discussed by the board members prior to a vote is sufficient to inform readers that a discussion took place. Furthermore, the record should reflect motions made, by whom, whether or not the motions were seconded, and the outcomes.

Directors will often disagree over association business, but they should avoid politicizing the meeting minutes by using them to provide a high level of detail about their opposing viewpoints. The minutes should not be slanted to favor one option over the other; they should only be used to document what was discussed and decided in a succinct manner.

By adopting a uniform format for the board meeting minutes and including only a brief documentation of the issues discussed and decisions made, the meeting minutes will become effective association records that are simple to record and maintain for future review.




New Law Gives Condominium Owners Green Light for Electric Vehicle Charging Stations

By Laura M. Manning

With their eco-friendly promise to Mother Nature, electric vehicles have gained popularity among U.S. consumers and policymakers alike, and auto industry giants are predicting even further growth for this high-tech and environmentally-friendly segment of the market in the future. Notwithstanding the growth thus far, one of the challenges that has been potentially inhibiting the greater dispersion of electric vehicles throughout Florida has been the lack of clarity in the law with respect to the installation and use of electric-vehicle charging stations within condominium communities. However, the Florida Legislature recently passed a new law facilitating an owner’s capacity to install and use an electric-vehicle charging station within their condominium building that will surely ameliorate some of these challenges.

Before adoption of the new law, and as a result of the potential legal, engineering and financial liabilities that would result from the installation of electric-vehicle charging stations on a large scale, many boards of directors raised questions regarding the proper method to facilitate owners’ requests to install electric-vehicle charging stations within condominium building parking garages. The new addition to Florida’s condominium association laws provides clarity to some of these questions.

Specifically, the new law stipulates that a declaration of condominium may not be enforced to prohibit a unit owner from installing an electric-vehicle charging station at their own cost and within the boundaries of their designated parking space. However, an association may require that the installation comply with all applicable building codes, recognized safety standards, and reasonable architectural standards that it adopts. The law also shields condominium associations from construction liens resulting from the installation of charging stations by unit owners; although liens may be filed against the owners installing such stations.

The new legislation further provides that the installation of electric-vehicle charging stations may not cause irreparable damage to the association’s property, and the electricity consumed on account of the charging station must be separately metered and payable by the unit owner who installed such station. In addition to paying for the installation and electricity costs, the installing owner will also be responsible for any hazard caused by the charging station, for any liability insurance on the charging station, and for any increased insurance premium to the association’s insurance coverage attributable to the charging station.

On account of the new law, and rather than waiting for unit owners to request installation of electric-vehicle charging stations within their parking areas, some association boards of directors are now considering installing charging stations, with built-in usage tracking and billing features, in designated areas within their condominium buildings’ parking garages. While determining the location of these charging stations and the administration of their use may present challenges for some associations, the added appeal and marketability of having electric-vehicle charging stations installed as a convenience for all owners, residents, and guests could offset these burdens and enhance property values for all owners.

As the use of electric vehicles continues to grow, progressive-minded condominium association boards of directors that embrace this technology and "go green," either by installing electric-vehicle charging stations within their parking garages or by developing a plan-of-action to administer owners’ requests for the installation and use of such charging stations in line with the new law, may gain a significant marketing edge in providing such convenience to their unit owners.




$20 Million Verdict Against HOA for Playground Injury Serves as Industry Wake-Up Call

By Roberto C. Blanch

For many Florida residents, the appeal of living in con-dominium and homeowners’ associations is partly due to the many types of shared amenities and recreational facilities that these communities provide and maintain for the enjoyment of all residents and their guests. Swimming pools, tennis courts, playgrounds, fitness centers, and social rooms are only a few examples of the common elements or areas made available in community associations to enhance the residents’ quality of life.

While these amenities provide significant benefits, they also come with important responsibilities for the association with respect to maintenance and upkeep. These maintenance responsibilities must be taken seriously, as severe injuries from a lack of proper maintenance can occur and may expose an association to considerable liability.

One of the most telling examples of the potential ramifications of improper maintenance of recreational amenities came in the $20 million verdict that a Las Vegas jury reached earlier this year after a teenager suffered severe brain injuries from a swing set collapsing on his head at the Lamplight Village gated community. In that case, stemming from an incident that occurred in 2013, a crossbar located on the association’s common-area swing set had corroded and worn badly at the connection points. As a result, the 42-pound crossbar fell on a 15 year-old boy’s head while he was using the swing set, causing significant brain injuries.

Reportedly, the association believed that the three-year old swing set was new enough that maintenance was not yet warranted, and it did not perform any regular maintenance or inspection of the equipment.

Recently, the case concluded and the jury awarded $20 million to the victim, $10 million of which in punitive damages. However, as the association only carries $2 million in liability insurance coverage, the association and its owners have been financially distressed by the case, and owners are considering suing the association for failing to alert them of pending litigation or settlement offers that have affected their property values and their obligation to financially support the association.

Court records show that Lamplight Village was offered multiple settlement offers, initially for less than $1 million dollars, but these offers were declined by the association. Some of the community’s homeowners have told reporters that the association lied to them, refusing to tell them about pending litigation for the past five years. They said they are now afraid of the possibility that they will lose their homes as a result of their obligation to financially support the association in meeting the jury’s award.

The attorney representing Lamplight Village said the association will be appealing the jury’s decision to the Nevada Supreme Court.

There is a very important lesson in the case of this tragic injury and the resulting litigation for all community associations across the country with recreational amenities that could result in injury if they are not properly maintained. Associations must apply reasonable vigilance in maintaining and inspecting all such community recreational facilities. An association’s maintenance obligation includes regularly scheduled periodic inspections, followed by performing all appropriate and necessary maintenance and replacement procedures, including recommendations from the manufacturers of the equipment within the recreational facilities, to ensure that the equipment is kept in safe working condition. In addition, user weight and size restrictions, or limitations on the hours during which facilities or equipment may be used, could also help to potentially limit legal liability should an injury occur.

As this Las Vegas case demonstrates, associations must take the maintenance and upkeep of their recreational equipment and facilities just as seriously as they do for their roofs, structural elements and plumbing elements. All of the property and equipment within community associations wear down over time, and it is the association’s responsibility to ensure that reasonable care is taken to protect the equipment and facilities for the safe use by residents and guests.




Arbitration Not Required for Suit Alleging Breach of Fiduciary Duty by Association Directors

By Michael E. Chapnick

While most garden-variety disputes between unit owners and their condominium associations are mandated by law to go to nonbinding arbitration before going to court, certain types of more complex disagreements are specifically excluded from this requirement and can proceed straight to trial.

The latest ruling over whether a dispute between an owner and a condominium association involving an addition to a common element was required to first go to arbitration before trial came in the case of Palisades Owners’ Association v. Thomas F. Browning before Florida’s First District Court of Appeal.

Dan Phillips and Jamey Phillips, who each own a unit in the Palisades condominium in Panama City, Fla. and serve on the association’s board of directors, added a boat lift to the community’s dock in 2016 for their exclusive use without prior approval from the other unit owners. As a result, unit owner Thomas F. Browning sued the association, which moved to dismiss the suit based on the contention that it must first be submitted to nonbinding arbitration in accordance with The Condominium Act.

Because the complaint included claims of breach of fiduciary duty by the association, the trial court concluded that Browning’s claims were specifically excluded from the class of disagreements required to be submitted to arbitration under the law.

In its review of the lower court’s decision, the First DCA found that any alteration to the community’s common elements requires the approval of at least three-fourths of all of the unit owners, according to the community’s bylaws. In response to Browning’s initial complaint to the board that the unapproved boat lift violated the community’s bylaws and must be removed, the directors (including Jamey Phillips) voted to amend the community’s by-laws to allow for temporary personal boat docks.

Browning subsequently sued the association, which responded by asserting that the dispute was subject to the alternate dispute resolution procedures provided under The Condominium Act before going to court.

In confirming the trial court’s decision, the appellate panel found that Browning’s complaint did not allege a dispute within the meaning of section 718.1255, Florida Statutes, and therefore he was not required to submit his claim to arbitration prior to filing suit in court. Its conclusion is based on the clear and unambiguous language in the statute specifically excluding from the definition of dispute several categories of more complex disagreements between unit owners and condominium associations including title claims, interpretation or enforcement of a warranty, fee assessments, evictions, breaches of fiduciary duty, and claims for damages for failure to maintain common areas.

The panel concluded that the suit goes beyond a factual dispute about changes to the common areas and alleges a breach of fiduciary duty by the association through the action of two of its board members, conflicts of interest, and violations of the bylaws. Because the complaint alleges a "breach of fiduciary duty by one or more directors," the appellate court upheld the trial court’s ruling that the disagreement does not fall within the statutory definition of a dispute that must be submitted to arbitration before filing suit.

This ruling illustrates how directors who implement changes to the common elements for their own personal benefit without prior membership approval in accordance with their community’s bylaws will not be shielded from potentially costly litigation by the state law requiring pre-trial arbitration. Disputes involving such actions will typically include allegations of breaches of fiduciary duty, making them specifically excluded from the arbitration mandate.




Community Association Directors Must Be

 Cognizant of "Sunshine Laws" for Meetings,

Discussions of Association Business

By Laura M. Manning

Just as with the "sunshine" laws mandating public access to the decision-making processes within the state government of Florida, community associations have similar laws in place in order to ensure that unit owners are able to observe and participate in their governance. These laws, which include the owners’ right to attend and record meetings of the board of directors, and to speak on agenda items at those meetings, come into play in the association context when a quorum of the board of directors is discussing association business. Directors must always remain mindful of the fact that they should avoid discussing association business or making decisions which affect the association outside of properly noticed meetings.

The laws for both condominium and homeowners’ associations suggest that if a quorum of the board is present and association business is being discussed, then the gathering constitutes a board meeting that should be open to the entire membership. Consequently, for associations with a three-person board of directors, this means that any conversations about association business between board members that takes place outside of the official meetings should be avoided, since two directors constitute a majority of the board and a quorum.

Directors must always bear in mind that if a quorum of them are together at any gathering, any discussion of association business should be tabled for an upcoming properly noticed board meeting. This is not to say that board members may not speak to each other in social settings, but discussion of association business or making decisions that will affect the association should be avoided during those social gatherings. While this may seem to create a burdensome hurdle for directors in associations, especially those with three-person boards, it is necessary to uphold the "sunshine" laws governing community associations and ensure that board and committee discussions and decisions are open to membership participation.




HOA Hires Private Investigator

to Catch Owners Conducting

Short-Term Rentals

By Roberto C. Blanch

Condominium associations and HOAs throughout South Florida as well as across the country are seeking effective responses to the problem of short-term rentals that are in violation of their rules and restrictions. These unauthorized rentals, which have become prevalent with the growth of Airbnb and other online home-sharing platforms, are creating significant security and liability concerns for associations.

One response by a San Diego homeowners association recently drew the attention of its local ABC affiliate, which chronicled how the community had retained a private investigator to gather and document incontrovertible proof that specific owners were conducting the restricted rentals. The licensed private detective and his associates were hired by the HOA and other local associations to investigate homeowners and tenants who are violating association bylaws and CC&Rs that prohibit turning units into short-term vacation rentals.

While the hiring of private detectives may initially seem as an extreme measure for an association, it makes sense when one considers the risks and concerns that are brought on by these rentals for HOAs and condominiums. Also, court actions may become necessary against some unit owners who flout the rules, and the evidence obtained by these investigators as well as their testimony can be very helpful in these proceedings.

In order to get away with these rentals, savvy owners have been known to sneak their transient guests into the property by advising security that their visit is authorized. As such, enhanced vigilance and guest-screening measures have become necessary, and many associations are now developing and implementing new registration forms for use with guests and tenants along with written assurances and noncompensation statements indicating that they are not paying for their stays.

In addition to the use of private detectives, the implementation of a clear fining or suspension policy, if permitted, is essential for associations to address unauthorized short-term rentals. This will typically entail the adoption of a new rule in which all of the fines and other consequences are delineated.

Community associations are also responding by adopting new amendments, bylaws or rules to limit the number of nights a residence may be rented, which can offer a level of flexibility for owners while also avoiding the possibility of creating a revolving door of unfettered short-term guests.

As the concerns created by the growth of short-term rentals continue to mount for community associations across the country, appropriate and effective responses such as these will help ameliorate the problem.




Vigilance Necessary to Prevent Association Construction Workers Staying Overnight in Empty Units

By Michael E. Chapnick

A recent newspaper report about squatters in condo-minium units illustrates the level of vigilance that associations and their property management must employ to prevent any unauthorized uses of their residences.

The article in January by the Citrus County Chronicle documented the case that took place at The Islands condominiums in Crystal River, Fla. Work on the residences in the community became necessary due to extensive damage caused by Hurricane Hermine in September 2016, and it had been progressing well until several unit owners discovered workers were staying in the units without permission.

It began when one of the owners noticed wet floors near the shower and other indicators that the construction workers were not just replacing cabinets or working on the carpets. He and a neighbor later found workers sleeping overnight in the condo unit of another owner who did not know they were there, so they called the police.

According to a sheriff’s office incident report, the two workers said they were staying in the unit overnight to complete work the next day. They indicated the contractor that had employed them said they were allowed to do so.

A Sarasota-based contractor, Statewide Restoration Services was hired to make the units inhabitable, including renovations in plumbing, electrical and general contracting for 167 residences. The unit owners told the Chronicle that the workers admitted to deputies that they slept in some units without owners’ knowledge or permission, and showered in others.

The owners complained to the property management company, which alerted Statewide. The contractor subsequently informed all of its subcontractors that from now on they need to be off the premises soon after dark.

This story demonstrates the level of vigilance and wariness that is necessary to help ensure against unauthorized uses of units, especially when extensive renovation projects are underway and residences are being left unoccupied by their owners. Contractors that are retained by associations must be monitored closely by onsite management and security personnel, as well as board members and their fellow unit owners (as appropriate), to ensure that they are complying completely with the terms of their agreements. These agreements must include provisions requiring workers to wear identifying clothing, obey all of the association’s rules and regulations, and avoid accessing the property except during specified working hours and days of the week.

Associations that fail to prevent unauthorized uses of the residences in their communities by workers can expose themselves to potentially significant legal liabilities that may not be completely covered by their insurers. They must always keep a close and careful eye on the comings and goings of all those who are working at the property.




Association’s Rule Requiring Residents to Keep Garage Doors Open Exemplifies Overzealousness That Harms Image of All Associations

By Laura M. Manning

Community associations often have to wrestle with challenging issues and areas of concern that can be extremely difficult to remedy. While directors are charged with developing appropriate rules and regulations to solve all of the difficulties that may arise, without the proper guidance from highly experienced and qualified management and legal professionals they can easily make the mistake of over-reaching with responses that wind up doing more harm than good.

Such appears to be the case with the California association that made national headlines recently for its reaction to its discovery that an owner was allowing tenants to reside in their converted garage. To address the problem, the association for Auburn Greens in Placer County taped notices on all of the residents’ doors informing them that their garage doors must be kept open from 8 a.m. to 4 p.m. Monday through Friday, effective immediately, with violations resulting in $200 fines and an administrative hearing.

As one would imagine, the outcry from residents was severe. Residents had legitimate security concerns about the rule, which left them without any effective means for protecting their belongings in their garages during the day.

As is often the case, it appears that some of the residents alerted journalists at a local television station about the dispute, and the station ultimately aired a story about the controversial new measure and how residents are opposing it.

In the station’s report, residents are quoted questioning the new rule and pointing out that it renders their garages relatively useless for protecting their cars and possessions. The station says that it made numerous attempts to contact those responsible for the new rule, but the directors of the Auburn Greens association had so far refused to comment.

This rule appears to be an overzealous attempt by the association to crack down on a problem area that can be difficult for associations to resolve. The issue of unauthorized leases and tenancies has become particularly troublesome during the last several years with the growth of Airbnb and similar websites facilitating short-term rentals.

It is a problem area that is difficult to resolve. Measures that some associations typically implement include increased security precautions including video cameras, and increased efforts by management and security staff to detect and address unauthorized tenancies as they arise.

However, while a rule such as the one in this case is probably well within the association’s powers to enact, it should never be considered as a viable response to the issue of unauthorized rentals. It could easily be found to be unreasonable by a judge if residents choose to challenge it in court, and it is likely to alienate the majority of the owners. In addition, it only addresses the use of garages and does not prevent owners from renting other parts of their homes.

In truth, this and other examples of unreasonable and burdensome new rules from association boards detract from a community’s reputation. Even worse is that any resulting negative media coverage also diminishes the image and perception of community associations by the general public.

Members of boards of directors need to understand that finding the most reasonable and effective solutions to some of the challenges facing community associations can be very difficult, and ideas such as this one that are unreasonable will almost always do more harm than good. The best approach for directors is to discuss difficult issues with highly qualified professionals, research how other associations are responding, determine the pros and cons of various responses including monetary costs, and finally make highly informed and well thought-out decisions.

In addition, if an association does find that it may have gone too far with a new rule and the outcry against it by the owners is severe, the best approach is usually to quickly rescind it and advise the residents that the topic and other new measures to address it will be discussed during the next board meeting. This will typically help to mitigate the damage and hopefully prevent the entire episode from playing out in the local media.




Condo Should Weigh Pros and Cons of Variance for Dog Weighing Six Pounds Over Rule Limit

By Roberto C. Blanch

A recent Florida case involving a condominium association and the dog of a 70 year-old army veteran and widower drew national attention after it was covered initially in the Orlando Sentinel. The newspaper’s reports chronicle how the association for the Orange Tree Village condominium is attempting to ban the dog because it weighs 41 pounds, which is six more than the maximum weight under its rules, and it may be a banned breed.

As a result of the association’s decision, retired veteran Robert Brady filed a complaint with the U.S. Department of Housing and Urban Development after an arbitrator determined he had to surrender the dog by Jan. 11. The federal agency is now looking into whether the association can force the long-time resident to surrender his emotional support dog.

The attorney for Orange Tree Village said that his office has received calls sympathetic to Brady, but his client must enforce its rules that were established to keep residents safe. "If it’s not enforced and something happens, it’s a guarantee that the association will be named as a co-defendant in a case and have to contact the insurance company," he said in one report.

The article also notes that Brady lost his wife to cancer several years ago, and the case has drawn national attention after the newspaper published its initial story Dec. 23. Readers from around the country called and emailed to offer legal aid, alternative housing for Brady, and training for the dog. This included several groups specializing in training veterans’ dogs to become certified service animals.

One of the representatives of those organizations is Lauren Driscoll, a Palm Coast program director for the nonprofit Paws of War, which trains dogs for vets. "It’s so sad that just because the dog is a little bit overweight that they’re making it an issue," she said in a recent article. "This is the only thing this man has left in the world and it’s not hurting anyone."

The founder of Texas-based nonprofit Train a Dog, Save a Warrior, Bart Sherwood also offered free training to Brady’s dog via trainer affiliates in the Daytona Beach area. "We’re trying to show the [Veterans Administration] where these dogs cut costs and help bring vets to a balanced state rather than the vet taking drugs," he said.

Given the amount of negative publicity that this case is now generating for the Orange Tree Village condominium, certainly the association’s board of directors and legal counsel are now considering the issuance of a variance for Brady’s dog that would be contingent on the canine’s continued benign behavior, training as a support animal, and a veterinary determination that the bully-mix is not indeed a banned pit bull. It should also meet with its insurance broker in order to document to its liability carrier the extent to which the association has gone to vet the case and reach its decision.

Cases such as these can be extremely challenging for associations, which are dealing with explosive growth in requests for emotional support animals. While some requests may be highly suspect and dubious at best, this appears to be a case of a long-time resident whose dog has not previously demonstrated aggressive behavior.

In such cases, association boards of directors should work extremely closely with highly experienced legal counsel in order to conduct all of the necessary inquiries regarding the case. Among other requests, this would include a request for supporting material from a mental health professional who is caring for the pet owner.

Taking all of these formal steps and documenting them in the association’s meeting records from the onset will help to diminish any potential future liabilities while also demonstrating that the board will thoroughly investigate and reach a fair conclusion for every request for an emotional support animal that it receives. In addition, there is always the potential for negative publicity in such cases that could reflect poorly on the community, and avoiding such media coverage is always in keeping with the mission of association boards to maximize property values for all of the unit owners.




Tackling Hoarding in Community Associations

By Michael E. Chapnick

Hoarding is becoming an increasingly common problem throughout the nation, especially for community associations where people are forced to cohabitate at close proximities. For association board members and property managers, it presents a challenging issue that should be addressed with sensitivity and discretion.

Depending on its gravity, hoarding can pose health and life-safety threats to fellow residents, causing foul odors and pest-control issues that spill over into hallways and neighboring units, as well as potential fire hazards. Despite being a nuisance, it is important to remember that compulsive hoarding is a disorder, one which usually implies some sort of mental health issue.

Should Accessing the Unit be the First Step?

Most condominium associations have a provision in their governing documents that mirrors the Florida Statutes and allows association representatives to enter a unit for emergency reasons and to prevent damage from being caused to other units and the common elements. A typical example of when this scenario comes into play would be to help resolve a water leak that is causing flooding or seepage.

Though it would seem like these provisions would give an association the authority to enter a unit in order to investigate if hoarding is taking place, we discourage boards from entering a unit (without the owner’s consent) on this basis, unless an actual and verifiable emergency exists. Entering units under false pretenses could expose an association to significant liability.

Instead, I strongly recommend that associations contact their managing agent and legal counsel to assist in discerning and implementing a plan to address the situation. This may begin with a violation notice letter advising the alleged "hoarder" of the concern regarding the possibility that damage to other units and the common elements could arise from such a condition, and giving them a deadline to either confirm that such hoarding is not taking place or eliminate it.

What if a Notice Doesn’t Solve Things?

Should the resident ignore the violation notice letter, it is recommended that associations enlist the help of government agencies to handle the enforcement. Agencies such as the health, fire and building departments, as well as city and/or county code enforcement, can step in and attempt to resolve the issue or, at the very least, inspect the unit and create a report that the association could then use if it is compelled to file a lawsuit against the hoarder.

The key for associations is to tread carefully when handling problems posed by hoarders — they are complex and oftentimes very difficult to solve. Bear in mind the old adage: One man’s trash is another man’s treasure.




Condo Association Sues Unit Owners for Creating Nuisance

By Laura M. Manning

Our firm’s other community association attorneys and I are often called upon by association boards of directors and property managers with issues involving obstinate and disruptive unit owners who become a serious nuisance to directors, management and other residents. In such cases, after warnings, incident reports and fines have failed to have any effect, legal action can serve as an effective recourse.

Such appears to be the case in the recent lawsuit filed by the condominium association for The Mark Yacht Club on Brickell Bay in Miami-Dade Circuit Court. The association is suing Nuri Munis, Pelin Munis Cakov and Seda Munis, who own two units in the 36-story condo building, for putting the board of directors, property manager, staff and fellow residents through a hellish ordeal.

The suit contends that Nuri Munis and his relatives have engaged in a campaign to harass and intimidate condo association board members, property management employees and their fellow residents. The suit also states that the family stalks other residents and accuses them in a threatening manner of violating the association’s rules.

"Nuri Munis shows up to the management office unannounced and pushes other residents out of the way so that he can get immediate access to the manager. He repeatedly and rudely interferes with conversations taking place between management and other residents concerning personal matters," reads the complaint.

The suit alleges that during a five-week period, Munis made 21 unannounced visits to the property manager’s office without an appointment, and he sent incessant emails making unreasonable demands and asserting false accusations to the board members and property manager. The complaint seeks an injunction to stop him and his family from going to the property management office without an appointment, sending emails and harassing workers and residents.

Based on the allegations chronicled in the association’s complaint, a lawsuit of this nature seeking an injunction against a resident and his relatives to force them to cease their offending behavior appears to be entirely justified when the resident can’t be bothered with the rules or common decency. While it is generally best to avoid litigation whenever possible, in extreme cases such as this, litigation is sometimes the only truly effective option against recalcitrant owners and residents.




Tackling the New Website Requirement for Florida Condominium Associations

'By Roberto C. Blanch

In accordance with a new Florida law, all of the state’s condominium associations with 150 or more units (not including timeshare properties) must have an independent website or web portal by July 1, 2018. Now is the time for all of the corresponding condo associations to begin taking the necessary steps to ensure that they will be in compliance by the deadline.

If an association utilizes a management company, the board of directors may wish to first reach out to the company to determine if it will be offering independent website or web portal services that comply with the new law. Bear in mind that the websites or web portals can either be wholly owned and operated by the association, or operated by a third-party provider.

However, even if an association’s management company will be providing such services, it is important for the association’s legal counsel to review the management contract in order to determine who owns the website and whether it confirms that all of the required documents will be included. If it is established that the management company will retain ownership of the site, the association’s attorney should then assess whether or not the agreement details the terms for transitioning the association’s website content. Ownership of the website will come into play if the association decides to terminate the management agreement, as the association may be accused of violating the law if such a termination causes the website to be shut down for any period of time.

As such, associations may wish to consider hosting their own independent website. If creating an in-house website proves to be too burdensome, we encourage associations to contract third-party providers that can develop a website or web portal which will comply with the stipulations under the new law.

Regardless of which option is chosen, association boards of directors should designate who will be in charge of uploading and updating the required documents to prevent any confusion or violation of the law in the future. It would also be to an association’s advantage to have its legal counsel review the website in order to help ensure that it is in compliance with the new law.

If you or your association’s representatives have any questions regarding this new legislation, we encourage you to email your inquiries to us at




Signs by Homeowners in HOA Communities Cause a Stir That Can Be Avoided

By Michael E Chapnick

A fairly common problem area for homeowners association communities is the use of lawn signs by residents, especially during election season. When HOAs attempt to crack down on the use of signs in accordance with their governing documents, they sometimes become the subject of unfavorable media attention.

Such was the case recently in St. Cloud, Fla. near Orlando when an HOA’s battle with some of its homeowners over a yard sign supporting law enforcement became one of the lead stories by the local Fox Network television affiliate for Central Florida. According to the report, the Burgess family’s "Back the Blue" yard sign supporting the police in the wake of two Kissimmee officers being shot and killed in the line of duty became the subject of a major brouhaha with their association. Dozens of other residents began supporting them and displaying the same sign, which their association said had to go.

The report concluded by indicating that the homeowners planned to present their side at an upcoming meeting before the board of directors of the community, so the complete story of how this plays out is still to be continued.

The association in this case and others like it in similar straits would be well advised to work closely with highly qualified and experienced legal counsel in order to negotiate and find an equitable solution for both sides in disputes involving yard signs. They should apply a common sense approach, which should being by explaining to the homeowners displaying the signs that the association’s rules must be fairly and uniformly applied in order for them to be effective in maintaining the property values for all of the community’s owners.

That being said, associations should then be open to finding a middle ground that would appease both sides. For the association in the recent TV news report, perhaps limiting the size of the signs, the timeframe during which they may be displayed in the aftermath of incidents involving law enforcement, and their placement near the front porches of the homes could enable the board to enact a rule conceding some limited use of this and other similar signs.

This same approach also works for political signs during election season, and it is the type of compromise that can enable associations to avoid confrontations while still maintaining an adequate level of control over the use of signs in accordance with their rules.




Dealing with Noisy Neighbors in

Condominium Communities

By Laura M. Manning

Does your neighbor’s loud music, barking dog or late-night television keep you up at night? Is your right to "peaceful possession" of your unit being infringed upon? If you live in a condominium building, quite possibly your answer is "yes." A recurring complaint that our firm’s other community association attorneys and I receive from condominium unit owners is that they are able to hear their neighbors through shared walls, floors and ceilings, followed by the frustration of feeling as if they have no recourse.

Here are some tips on how unit owners and their associations can deal with noisy neighbors:

Take a minute to think: Is this excessive noise?

Depending on the materials that were used to construct your condominium building, it is possible that the walls, floors and ceilings are to blame for hearing everything your neighbor says or does. From routine noises, such as walking or watching television, to noisier activities such as blasting music or operating loud appliances, the building’s construction may be the reason that noises become magnified in your place of retreat. If this is the case, the issue may be common throughout the building.

Take a minute to think about whether the noises which you find so irritating are intentional. Recognizing that your neighbor may be hearing the same type of commotion coming from your unit may provide a different perspective. Bear in mind that anyone can get carried away with an occasional party that runs late, or a loud action film after midnight. However, if your neighbor is creating excessive noise, and frequently at odd hours of the day, it may be necessary to take the next step and ask the association to take action.

Do Not Confront

While you may think that you are a reasonable person and it should be okay to knock on your neighbor’s door to ask them to keep the noise down, your best (and safest) bet is to report the problem through your building’s management personnel or security. The manager may send security professionals to the unit in an effort to try to resolve the situation, and you should ensure that the incident is properly documented via an incident report.

If excessive noise still persists after management and security have visited the unit, the association may impose a violation and/or fines against the resident causing the noise. Depending on the source of the noise, the association could require the resident to take some action to diminish or minimize the sounds being heard. Sometimes the simple addition of large area rugs in apartments with hard flooring reduces what seems like excessive noise but is really just the sound of everyday living.

If management, security, violation notices and fines do not stop a resident from making excessive noise that rises to the level of a nuisance – remember, there is no expectation of complete silence in condominium living – then unfortunately, it may be necessary to take legal action. Ultimately, when dealing with noisy neighbors, it is important to try to resolve the situation in the friendliest terms possible while not surrendering the serenity you deserve to enjoy in your home.




New Legal Remedies Against Director Conflicts of Interest for Associations

By Michael Chapnick

In the pursuit of association fraud and embezzlement, one of the most important aspects of the major legislation that was adopted earlier this year is the law’s effort to curb conflicts of interest by association board members and officers.

The new law provides that presumptions of conflicts of interest exist in the following circumstances:

• A director, officer or one of their relatives enters into a contract for goods or services with the association.

• A director or officer . . . holds an interest in a corporation, LLC, LLP or other business entity that conducts business with the association or proposes to enter into a contract or other transaction with the association.

The law requires that directors and officers must disclose to the board any activity that may reasonably be construed to be a conflict of interest. The activity in question must then be properly noticed and put to a board vote. It will need to be listed in the meeting agenda, and all of the related contracts and transactional documents should be included with the agenda. The director/officer may attend the meeting and make a presentation to the board, but they must leave the meeting during any discussion and the ensuing vote.

The remaining members of the association’s board of directors will then need to vote on whether to allow the officer/director to remain on the board while engaging in the activity. If the board votes no, the director/officer must notify the board in writing of their intention to withdraw from office or cease the proposed activity.

Association officers/directors in situations which may be construed to be a conflict of interest would be well advised to disclose it in accordance with the new legislation. Unfortunately, if they do not disclose the matter, determining whether officers/directors "hold an interest" in companies that are contracted by an association can present some difficulties.

The good news is that the new law provides associations with legal recourse to address conflicts of interest when they are disclosed or detected. Because courts have not yet ruled on cases involving the rebuttable presumption of conflicts of interest for community association officers/directors under the newly amended statute, association directors and property management should consult closely with highly qualified and experienced legal counsel regarding the specifics of their circumstances.



Condominium Workers Charged with Theft in Wake of New Fraud Law

By Roberto C. Blanch

Changes in condominium association laws that were recently enacted with an aim to curb fraud in associations seem to have had a strong impact in increasing the general awareness of the problems facing Florida condo communities. A few major media outlets have followed up on the news of the law with reports about arrests involving South Florida associations.

Several months ago the Miami Herald reported that the administrator of an Aventura condominium named Admirals Port had been arrested on charges of accepting thousands of dollars in bribes and stealing cash from the building’s laundry machines. Donovan Staley was charged with organized fraud, grand theft and the use of a phone to plan a crime, "Donovan Staley abused the trust of the condo directors and owners to line his own pockets," said State Attorney Katherine Fernandez Rundle at a news conference at the time. "We want the community to know that the new law is going to make a difference."

The Herald article indicates that authorities believe Staley asked an electrical firm working in the building to add $6,000 to the invoice and remit it to him in exchange for the community’s future business. There is also video of Staley allegedly taking money out of the community’s laundry machines, from which authorities say he stole more than $3,000.

A case involving the theft of valuables from a Singer Island condominium by one of the property’s maintenance employees was recently covered by the Fox television network affiliate for the Palm Beaches and Treasure Coast. Police tracked the unit owner’s gold bracelet engraved with his name and discovered that it had been pawned by Steven Kos, who was a maintenance worker with access to the keys for the units at the East Pointe Condominiums where the theft occurred. In addition to the bracelet, police also say that Kos pawned additional jewelry and other items from the theft at local pawn shops, and he has been charged with burglary, grand theft and six counts of dealing in stolen property.

These recent cases should serve as a reminder to Florida community associations of the level of safeguards and vigilance that must be put in place in order to help to prevent theft, fraud and abuse by association and management employees. In addition to the implementation of security and administrative protocols that help associations to avoid becoming a victim, the criminal penalties prescribed by the state’s new condo fraud law have now made associations better equipped to engage law enforcement than ever before.




Rules Enforcement by Associations Requires Consistency, Persistence

By Laura M. Manning

All too often, our firm’s community association attorneys are asked by boards of directors and property managers about the steps that they can take to prevent troublesome residents from breaking the rules. In truth, we have found that associations which are active and persistent in disciplining their rule breakers are few and far between.

Typically, violations by unit owners and residents range from disobeying noise and nuisance provisions to more problematic issues such as ignoring an association’s prohibition of short-term rentals. Regardless of how big or small – or even how chronic – an infraction may be, it is important that boards do their part to enforce their association’s rules and regulations, which only work if they are uniformly administered. Choosing to look the other way when residents attempt to skirt or bend the rules can lead to chaos in a community, and ultimately an inability to enforce those rules even if the violations become egregious.

Upon the occurrence of any violation, the board of directors should contact their association’s legal counsel for a review of the governing documents to determine the specific provisions that have been violated based upon all of the pertinent evidence in the association’s possession. If it is determined that a violation has occurred, a notice of violation letter should then be sent to the resident. The violation letter should cite the provisions of the governing documents that were violated and provide the violator with either an opportunity to cure the violation or a demand that the violation cease and desist.

Association counsel should assist in the preparation of any demand letter, given that the enforceability of any restrictions or fine(s) imposed upon the resident will depend, in part, upon the use of a notice that is compliant with Florida Law and arbitration decisions rendered by the state’s Division of Condominiums. The notice is the first step required prior to taking further enforcement action, including filing a petition for arbitration against a resident for a violation of an association’s governing documents.

By following these relatively simple initial protocols, boards of directors can proactively minimize the amount of violations occurring in their communities.




New Board Member Term Limits Law has Significant Impact for Florida Condo Associations

By Michael E. Chapnick

Among the major changes to Florida’s condominium laws in 2017 is a new provision mandating term lim- its for board members. The new legislation marks a significant departure from the past policies for most associations pertaining to the tenures of their board members, and it only applies to condo associations and not HOAs.

The newly codified law allows for board members to serve two-year terms, if that is what is called for in their association’s bylaws. However, a board member may not serve more than four consecutive two-year terms. The only exemptions to this cap would be granted to candidates who achieve a 2/3 super majority of the total voting interests and to associations that do not have enough eligible candidates to fill the board vacancies.

The Legislature does not appear to have intended this law to apply retroactively. Therefore, board members who have been serving consecutive two-year terms will not have to be immediately concerned that they will be unable to run for board seats going forward. Additionally, as the law only limits serving for more than four consecutive two-year terms, those associations whose directors only serve for one-year terms are unaffected by the limitation.

For those affected associations, this new law may cause some serious concerns. Some board members who have served for extended numbers of years play vital roles as experienced providers of steady leadership. They are uniquely aware of all of the administrative and operational details of a community, including its finances and long-term maintenance and construction issues.

However, the intentions behind the new law to generate new leadership for condominium associations are worthwhile, as newly minted board members often bring different perspectives and skills to bear for associations that have not updated their policies and practices for years. The term limits also help to curtail opportunities for unscrupulous board members to develop schemes over the course to years that put their own interests ahead of those of the community.

Undoubtedly, the board member term limits law for Florida condominium associations will have a significant impact for many condo communities throughout the state. Condominium associations would be well advised to consult with highly experienced legal counsel regarding the ramifications of the new law and how it will affect any term-limited candidates.




Community Association Debit Card Provision

Uncertainties Answered

By Laura M. Manning

The outcome of this year’s legislative session evoked a lot of confusion from community association boards of directors and property managers. As a result, our firm’s other association attorneys and I have received many requests from our clients and the followers of our blog at asking for clarification on some of the laws that were enacted, including the new debit card provision.

The debit card provision was added to block any community association, its officers, directors and employees from using a debit card issued in the name of the association to pay for association-related expenses. In the face of an increasingly cashless society, this new regulation poses a problem for many, considering that plastic is becoming the most common and preferred method of payment. So how are associations expected to pay for services such as Internet and communal utilities, or expenses such as new patio furniture?

Though this new provision prevents associations from using debit cards, it does not prohibit the use of credit cards for association-related expenses. By not allowing the use of a debit card, direct access to the association’s cash is restricted. While this measure was likely intended to provide a level of legislative protection from dishonest individuals having access to an ATM machine and a large bank account, use of credit cards for association purposes remains a permissible form of purchasing power, if not still a risky endeavor.

Associations that utilize credit cards are encouraged to restrict their use altogether, limiting the risk of becoming victims of fraud or theft. However, if an association is inclined to have a credit card, we recommend allowing only one card to be issued, keeping a low limit on the card, paying the card in full every month, and frequently checking charges made to the account.

While we realize that some may look at this new legislation as an inconvenience, ultimately the goal was to help protect condominium and homeowners associations and their owners from theft and fraud – and with the disturbing amount of cases of deceit in Florida community associations, we can use all of the protection we can get.




Proactive Measures Help Community Associations

Diminish Exposure to

Negligent Security Lawsuits

By Roberto C. Blanch

Community associations, just as with all other property owners, can be held liable for crimes committed on their properties. In Florida, associations and other property owners owe a duty to their residents and guests to undergo reasonable steps to protect against foreseeable crimes.

There have been cases over the years of associations being sued by the victims of crimes that took place in their community for allegedly failing to implement adequate security measures. Some of these suits, especially those involving severe injuries, have been resolved in considerable rulings or settlements in favor of the victims. These awards, combined with the litigation costs and the possibility of increased insurance premiums, can be financially disastrous for many associations.

Exactly what is considered reasonable security is the key question before the courts in these negligence claims. Other considerations include whether the crime that took place was foreseeable. For instance, in a gated high-end community, residents and guests may expect a greater level of security, so some might argue that such community is to take measures at a higher standard.

In addition to implementing effective and reasonable measures with the help of licensed security services and professionals, associations should also consider protecting themselves against negligent security lawsuits by including certain disclaimers in their governing documents. If these disclaimers are to be added to the documents, they should be announced and discussed at a board meeting and other steps may need to be followed to ensure that the amendments to the governing documents are properly enacted.

Communications to the owners and residents about their responsibility to lock doors and windows or to install alarms or exterior lighting can also be helpful. Additionally, associations and their management should closely monitor and assess any known crimes that occur within or in close proximity to the community, and they should ensure that any security measures and systems put in place are functioning at full capacity.

By working closely with highly experienced legal counsel and security professionals, associations can help to diminish their exposure to potential liability stemming from negligent security claims.




New Legislation Adds Teeth to Florida’s Condo Laws

By Michael F Chapnick

The new Florida law that establishes criminal penalties for association fraudsters should help many associations to contend with suspicious and irregular activities by unscrupulous board members.

Association boards of directors control the purse strings for their condo communities, and as such they have always made for extremely appealing targets for fraudsters who conspire to assume control via their annual elections. In a Las Vegas case, a U.S. Justice Department investigation revealed that 11 associations were defrauded of tens of millions of dollars in a board of directors takeover scheme from 2003 to 2009. Forty-one defendants were convicted of rigging board elections through such tactics as traveling to Mexico to print phony ballots, using the master key at a condominium complex in order to remove ballots from mailboxes, and retrieving discarded ballots from condo dumpsters.

The new legislation has ushered in significant changes to the state’s laws and the Department of Business and Professional Regulation’s blanket jurisdiction in upholding them. Some of the most important changes include criminal penalties for matters of willful and intentional acts such as fraud and self dealing.

Specifically, the penalties include:

• Forgery of a ballot envelope or voting certificate used in a condominium association election is punishable as a felony of the third degree in accordance with Section 831.01, Florida Statutes, which can carry a prison term of five years.

• Theft or embezzlement of funds of a condominium association is punishable based upon the amount of the theft or embezzlement in accordance with Section 812.014, Florida Statutes.

• Destruction of or refusal to allow inspection or copying of an official record of a condominium association that is accessible to unit owners within the time periods required by general law in furtherance of any crime is punishable as tampering with physical evidence in accordance with Section 918.13, Florida Statutes or as obstruction of justice as provided in Chapter 843, Florida Statutes.

• An officer or director charged by information or indictment with a crime referenced above must be removed from office and the vacancy shall be filled, unless the bylaws provide otherwise, by electing a new board member, and the election must be by secret ballot. The vacancy created by the removal of such officer or director shall be filled until the end of the officer’s or director’s period of suspension or the end of his or her term of office, whichever occurs first.

• If a criminal charge is pending against the officer or director, he or she may not be appointed or elected to a position as an officer or a director of any association and may not have access to the official records of any association, except pursuant to a court order.

• If the charges are resolved without a finding of guilt, the officer or director must be reinstated for the remainder of his or her term of office, if any.

By establishing clear criminal penalties, association fraudsters’ actions now fall under the jurisdiction of the economic crime divisions of state and local law enforcement rather than the DBPR, which is now focusing more on condominium administrative issues that do not require extensive investigations and prosecutions.

Association directors, members and managers who believe they may have evidence of criminal violations under this new law should consult closely with highly experienced association legal counsel in order to determine their next steps.




Estoppel Bill Becomes Law, Brings Big Changes to Association Procedures

By Laura M. Manning

After several years of failed attempts, the estoppel bill has become law in Florida and mandates major changes to the way community associations in the state prepare estoppel letters (also called estoppel certificates), which are legal documents detailing the amounts owed by a unit owner prior to the sale of their residence.

Below are the changes required by the new law:

• Reduces the time associations have to respond to written or electronic requests for estoppel certificates from 15 days to 10 business days.

• Requires each association to provide on its website the identity of a person or entity (and their street or e-mail address) to which requests for estoppel certificates may be sent.

• Provides that estoppel certificates must be submitted by hand delivery, regular mail, or e-mail to the requestor on the date of issuance of the certificate.

• Changes authorized association signatories for estoppel certificates from officer or agent of association to any board member, authorized agent, or authorized representative of the association, including authorized employees of the association’s management company.

• Establishes the information to be contained in, and the substantial form of, an estoppel certificate. The following information must now be included in the estoppel certificate: the date of issuance, name of unit owner pursuant to association records, unit designation and address, parking space or garage number pursuant to association records, name and contact information for association counsel if the account is delinquent, fee for the preparation and delivery of the estoppel certificate, the name of the requestor, and assessment and other information, including whether any violations exist on the property or unit, whether approval is required for transfers of a unit, and whether the association has a right of first refusal.

• Establishes a 30-day effective period for estoppel certificates sent via e-mail or hand delivery, and a 35-day effective period if delivered by regular mail. Requires issuance of an amended certificate at no charge if the association learns of new information or a mistake made in the certificate prior to the sale or refinance of the unit.

• Caps the fees which may be charged for preparation of an estoppel certificate at $250, unless such certificate is requested on an expedited basis, in which case an additional $100 may be charged; if there are delinquent amounts due to the association from the applicable parcel, the association may charge an additional fee not to exceed $150.

• Provides that no fee may be charged if the estoppel isn’t provided within the 10 business-day deadline; and establishes an aggregate fee limit for requests for multiple units owned by the same owner if there are no past-due monetary obligations owed by such owner.

• Provides that the association waives the right to collect any amounts not included in the estoppel certificate from any person who relies on the information in good faith and his or her successors.

• Requires that the board of directors pass a resolution to establish the authority to charge a fee for the preparation and delivery of estoppel certificates.

• Provides that reimbursement for estoppel certificate fees for sales that do not occur may not be waived by agreement if the estoppel certificate fee was paid by someone other than the unit owner. Also provides for prevailing-party attorney fees related to actions for such reimbursements.

• Provides that the statutory fees authorized shall be adjusted every five years in keeping with the Consumer Price Index, and the adjusted amounts shall be published on the Department of Business and Professional Regulation website.

In light of all of the significant changes, Florida community associations and their property managers are advised to consult with highly experienced legal counsel in order to ensure compliance with the new law and new procedures to be followed when issuing estoppels.




Use of Drones by

Homeowner Gets

Tempers Soaring at Florida HOA Community

By Roberto C. Blanch

The use of drones by owners and residents of units in HOA and condominium communities has created concerns across the country over potential privacy and safety issues for community association managers and their boards of directors. Sales of drones to consumers in the U.S. are expected to grow from 2.5 million in 2016 to 7 million in 2020, according to a report from the FAA. As the popularity of drones continues to soar, associations will need to come to terms with how they wish to address their use within their communities.

At the FishHawk Ranch community in the Tampa area, the use of drones by a homeowner has created such an uproar that it drew the attention of local TV news. The area’s CBS affiliate recently chronicled the battle that is brewing in the community over homeowner Frank Bragg and his collection of a half-dozen drones.

Bragg demonstrated his drones and the images that they capture to the station’s reporter, but the HOA president says those images are proof of the problem. He says that Bragg has been flying the drones over the community pool, and there have been Facebook posts raising privacy concerns and calling the homeowner out for "hovering over the kids’ area with half-naked children."

Bragg contends he was practicing flying the drone while his daughter played in the pool, and he notes that drones are not restricted by the current HOA rules.

Police were called once when Bragg was told to stop flying the drones and refused to comply, but they did not take any action because he had left before they arrived. The latest move from the HOA was to revoke Bragg’s privileges to use the community’s amenities.

When the news of the TV report went out, several neighbors contacted the station to indicate that the violations of their privacy with Bragg’s drones go well beyond the community pool. They claim that the drones also hover very low over their yards and that he uses them to look into their garages from their driveways.

The HOA will be addressing the drones at its next board meeting, with both Bragg and his critics planning to attend what will surely a contentious gathering.

Florida community associations should consider getting ahead of the issues created by drones by establishing clear parameters for their use within common elements and common areas. Last year, the Federal Aviation Administration enacted new regulations for the use of drones. Recreational users must register their drones and label them with the registration number, they must only be flown below 400 feet and always within sight of the operator, and they are banned from use near other aircraft and airports as well as over groups of people, stadiums, sporting events, or emergency response efforts.

Privacy concerns over the use of drones with cameras were addressed by a new Florida law stipulating that drones with cameras may not be used to record images of privately owned properties or of the owners, tenants or occupants of properties in violation of their reasonable expectations of privacy without their written consent. Reasonable expectations of privacy are presumed if individuals are not observable by others located at ground level in a place where they have a legal right to be, regardless of whether they are observable from the air with the use of a drone.

The implementation of new association rules governing drones should begin with a discussion that is open to all of the unit owners at a board meeting. If an association concludes that it wishes to permit the operation of drones in the community, it should consider rules to help ensure safety such as the establishment of designated take-off/landing sites, restricting their use to daylight hours, developing penalties for violations, and clarifying that the association is not liable for any property damage that they may cause.

With the continued growth in recreational drones, now is the time for associations to work together with their members to create rules that will address the related safety and privacy issues.




Suspensions of Residents’ Use of Community Amenities Help Associations to Maintain Compliance

By Michael E. Chapnick

Florida community associations are always seeking to implement the most cost-effective options at their disposal to collect unpaid dues and compel unit owners/residents to comply with their rules and restrictions. Condominium associations used to have very few practical remedies at their disposal to address delinquencies and violations. They could file lawsuits or arbitration actions, but the costs of pursuing these cases can be a significant expense, and the imposition of fines requires the use of a fining committee and can be difficult to collect.

As a result of legislative changes to the state’s Condominium Act a number of years ago, associations are now able to suspend the rights of an owner, tenant or guest to use common elements and facilities if the owner of the unit is delinquent more than 90 days in paying a monetary obligation to the association. Condominium associations may also suspend, for a reasonable period of time, the right of an owner and/or resident to use common elements and amenities for the failure to comply with any provisions of the association’s declaration, bylaws or rules.

As with the imposition of fines, suspensions for rule and covenant violations may only be imposed if the association provides the owner/resident with at least 14 days advance written notice of the committee hearing. The committee must be composed of other unit owners who are neither board members nor persons residing in a board member’s household, and suspensions may not be imposed without the majority consent of the committee.

The effectiveness of these suspensions depends on whether communities have the types of amenities that would be sorely missed by residents, such as pools, tennis courts and fitness centers, and if they have the on-site personnel and monitoring capabilities that would be required to enforce the bans. Monitoring and enforcement of the bans against these residents will typically require concerted efforts by on-site staff as well as association directors and members.

The suspension of use rights against delinquent or unruly owners and residents can present its challenges, but it may also serve as one of the most effective collections and enforcement tools for associations. Board members and property managers should work closely with highly experienced legal counsel to discuss and develop their strategies regarding covenant and rule enforcement.




Insurance Reminders for Condo Associations at Start of Hurricane Season

By Laura M. Manning-Hudson

With hurricane season now underway, Florida con-dominium associations should take the time to ensure that they and their owners are prepared for a storm. In addition to ensuring that hurricane shutters are operational and all of the necessary supplies are on hand, associations should communicate with owners about insurance and liability under state law.

Florida law requires associations to maintain insurance for all portions of the condominium property as originally installed in accordance with the original plans and specifications, as well as alterations or additions made to the condominium property. Personal property, including floor, wall and ceiling coverings (i.e., paint, wallpaper, wood flooring), electrical fixtures, appliances, water heaters, water filters, built-in cabinets and countertops, and window treatments including curtains, drapes, blinds, and similar window treatment components, located within a unit or that unit’s limited common elements, and which serve only that unit, are not covered by the association’s insurance policies. Unit owners are responsible for maintaining their own insurance coverage for these items.

At the start of every hurricane season, association board members or property management should photograph and/or video all of the main public areas of the condominium property. These images could become vitally important in the event that a storm strikes and claims are filed. Associations should also take the time to store copies of their wind, flood and property insurance policies in waterproof cases in a secure location. If possible, digital copies should also be stored in several computers and devices.

It is also good practice for associations to develop a hurricane policy and distribute it to residents each year reminding them of all the things they need to do to prepare for hurricane season, including ensuring that shutters are operational, moving all furniture inside before they leave for the summer, and taking pictures of their personal property to keep as record evidence in the case of a storm. Importantly, that hurricane policy should also include a reminder of the importance of maintaining their own homeowner’s insurance policies to cover their personal property within their units and their limited common elements. This communication may also be used to request updated owner and resident contact information, including cell phone numbers.

In the event of a loss, there could be a lot of work to be done, and it is advisable to consult with the association’s legal counsel and insurance consultants to assist in reporting and filing any necessary claims.

By taking all of these preparations, associations can ensure that all of their insurance matters are in order and they are ready for any storm-related claims that may arise.




Unit Owners Beware:

The Developer May Have Stacked the Board Against You

Condo & HOA Board Members May be Neglecting the Duties You are Owed

By Roberto C Blanch

Are you concerned that the developer of your condominium did not deliver on the promises made to you when you purchased your condominium unit? Are you concerned with the construction of the condominium in which you live? For most individuals the purchase of a condominium unit can be their most important investment. However, many of the decisions impacting this investment are not up to the owner of the unit, but rather they are left up to a board of directors controlling the association.

At a specified time, the developer of a condominium is required to relinquish control of the association’s board of directors in favor of the unit owners. The turnover of an association from developer to the unit owners presents the first opportunity for the association’s board to hire a lawyer, an accountant and an engineer to perform important and time-sensitive inspections of the condominium. These inspections will identify construction defects and other concerns that may exist. As such, it should not be surprising that a developer would want a "friendly" association board of directors following turnover. But imagine the havoc an unscrupulous developer could inflict if the association’s newly elected board – or the attorney and engineer working for the unit owners – have financial ties to the developer.

A recent Miami-Dade grand jury report found that there was extensive fraud, mismanagement, stacking of boards and conflicts of interest among condominium association boards. Such misconduct is not limited to Miami-Dade, however. Perhaps surprisingly, one of the largest public corruption cases set in the fast-paced, scheming neon desert notoriously dubbed "Sin City" did not involve the usual Las Vegas suspects, but rather a contractor, a lawyer, and a stacked board of condominium directors. In 2015, Leon Benzer, a construction company boss, was sentenced to 15 and a half years in federal prison for orchestrating a scheme to take control of association boards for the purpose of channeling construction defect repairs to Benzer’s company. Benzer’s scheme involved a network of recruited purchasers and real estate agents who would get elected to association boards, hire Benzer’s attorney, and award lucrative contracts to Benzer’s construction company. Through these unethical practices, these individuals violated the duties owed to the association and its unit owners.

Condominium unit owners are considered shareholders of the association, and act in a fiduciary relationship to each owner. In such relationships, the law demands a higher than ordinary degree of care from each director and officer, with Florida law specifically demanding directors to discharge their duties in good faith. Simply put, directors should act to protect the best interests of the association and its unit owners, rather than their personal interests or those of affiliated third parties. The actions of the board members in Benzer’s scheme were in complete disregard of the unit owners’ rights, as they participated in rigging elections and seeking only personal gain.

In order to avoid a Benzer-type scheme, it is critical for unit owners to exercise due diligence in selecting truly independent individuals to become board members to represent the best interests of all the unit owners at the time control of the association is transferred from the developer. Since Florida law permits condominium association boards to settle claims concerning sums owed from the developer and matters of common interest to the owners, including construction defect claims, it is even more vital to ensure that an association’s board, attorney and engineer are not being led by ill-intended individuals to unscrupulously settle claims for pennies of their real worth, accept cosmetic repairs that do not fully address the underlying defective condition, and waive association claims for latent defects.

In order to ensure that meritorious claims of unit owners are adequately protected, unit owners must get involved and confirm that independent board candidates without financial ties to the developer or contractor are seeking election to the association’s board. Additionally, steps should be taken to confirm that the association’s officers and directors hire independent knowledgeable attorneys and engineering firms, not attorneys and engineers affiliated with the developer or contractor.

Unit owners should be cautious when dealing with an attorney that was selected, hired and paid by the developer-controlled board prior to the unit owners taking control of the association. Unit owners must ask critical questions of management, those seeking election to the board, and the attorneys and engineers being interviewed to represent the association as to their involvement or affiliation with the developer or contractor that built the condominium. Protect your investment, and avoid a Benzer "stacked board."

For further information regarding the turnover process, self-dealing, conflicts of interest, and the duties of your board of directors, please submit your questions on our website at and get the information you need to make sure you are safeguarding your investment.




Association Pool Tips for Safe, Fun Summer Season

By Michael E. Chapnick

At the start of summer, associations should evaluate their pool rules and procedures in addition to con-ducting all of the necessary inspections of their pools, spas and related equipment.

With the help of qualified professionals, the inspections should include all pools and pool equipment as well as the surrounding amenities, including gates, fences, signs, locker rooms, etc.

Association pool rules should focus on health and safety, and should avoid focusing on classes of protected persons, particularly families with children. Making the activities of children the focus of prohibitory rules can substantially increase the potential that an association will receive a complaint alleging discriminatory conduct under federal, state and local fair housing laws. Even prohibiting something as seemingly innocuous as "pool toys" could be deemed discriminatory, if directed specifically at children, rather than at all persons.

Likewise, unless your community avails itself of the Housing for Older Persons exemption to the anti-discrimination provisions of the Fair Housing Amendments Act of 1988, designating "adults only" pools or use times may give rise to FHA violations. Furthermore, some courts have found that not permitting children access to pools and other amenities unless accompanied by parents could also give rise to FHA violations.

Some of the most common safety-related rules include:

• No running.

• No glass containers.

• No diving in shallow areas.

• No pushing, horseplay, roughhousing, or dunking.

• No smoking and/or tobacco products in the pool area.

If on-site staff is charged with monitoring association pools, these employees should receive proper training addressing the pool rules and their enforcement, safety procedures, and calls for emergency assistance.

By conducting all of the necessary annual inspections and implementing appropriate rules to address safety, associations can help to ensure that they avoid wading into any rough waters during the summer pool season.




Association Board

Meeting Do’s and Don’ts

By Laura M. Manning-Hudson

Often times we are called upon by our clients with questions regarding how to more efficiently run their board meetings and control the conduct of members during those meetings. Very often it seems that directors who are simply trying to be polite and respectful of owners by allowing them to express their opinions wind up losing control of the meeting and actually accomplish very little business. This trend of owners seemingly "hijacking" board meetings is not a new one, but it does seem to be fueled in recent months by the political climate we find ourselves living in now where all people want to be heard. Fortunately, the HOA and Condominium Acts provide board members with the tools they need to control their meetings while allowing all members to also have their "say."

Association board meetings are defined as any gathering for the purpose of conducting association business by the members of the board of directors at which a quorum is present. Unless the association’s by-laws or other governing documents provide for a longer period, notice of board meetings must generally be conspicuously posted within the community 48 hours in advance of the meeting. However, in certain circumstances (such as the adoption of assessments or some types of rules), written notice must be posted and provided to the members at least 14 days in advance of a board meeting.

In accordance with Florida law, an item of business that is not noticed may only be addressed on an emergency basis, such as situations involving sudden damage to the building, natural disasters and similar events. Emergency actions must be ratified or approved at the board’s next properly noticed board meeting at which a quorum of directors is attained.

The notice of the board meeting should list specific business items on the agenda. Boards and managers should make every effort to ensure that all reasonably anticipated topics of discussion are included. The more specific the agenda, the easier it will be for the board to control the pace and flow of the meeting. When agendas list broad topics without specific business items, boards leave themselves open to having to address issues brought up by members that would arguably "fit" under broad category headings. As such, the agenda should be comprised of specific open items from the previous meeting requiring action; specific owner items that may require board action; building maintenance items, as required; project information, updates, requests and actions; and seasonal information, such as annual and budget meeting information as well as hurricane preparation matters.

Some of the most common board meeting issues for associations include excessively long meetings that seemingly do not accomplish anything, disruptions by disgruntled owners, digressions from the agenda items, and the lack of clear direction and purpose for the meeting. Both the HOA and Condominium Acts allow associations to adopt rules regarding unit owner participation at board meetings. While both statutes provide that members are allowed to speak on all agenda items, adopting these types of rules regarding participation helps boards maintain control over the overall meeting.

Boards should consider adopting guidelines for owner participation at meetings, publishing these guidelines before the meeting, and reading them at the beginning of every meeting for those in attendance. Typical guidelines provide that an owner may speak for three minutes on any agenda item, no member may speak more than once until all owners wishing to speak for the first time have done so, and owners may speak only twice on a single agenda item, the second time for one and a half minutes. Once guidelines are established, enforcement of the rules is key even if it means using a stopwatch, timer or gavel (if necessary).

While neither statute addresses the specific time when owner discussion on agenda items should occur, allowing owners to comment before the board votes on the item allows the individual board members to take into account sometimes very meaningful opinions and comments when making their decision on how to vote. Limiting owner participation on agenda items until after the board action has been taken on the item defeats legislative intent and erodes meaningful opportunity for owners to address the board.

By closely adhering to the statutory requirements and following clear policies and procedures at board meetings, associations can help to ensure that all of their meetings are as effective as possible while disruptive elements are kept to a minimum.




Community Association Boards Should Spread the Load by Relying on Committees

By Roberto C. Blanch

Association board members are asked to do a great deal for the communities they serve. They give up a great deal of their time and lend their varying expertise to help their communities run as smoothly and effectively as possible. Given that so much is asked of the directors, it is important that they take appropriate steps to delegate responsibilities to committees comprised of association members.

For most community associations, the benefits of involving committees are extremely worthwhile. Not only do they create a forum for the implementation and enforcement of vital policies and decisions, they also serve as ideal incubators for prospective future board members.

By their very nature, committees comprised of volunteer owners and residents should have a good understanding of the best policies and practices for their community. They may be ideally suited to oversee matters that involve the collection of information from the owners and the subsequent assessing of the data in order to make strong recommendations for suggested solutions.

Association boards should take the time to closely consider the use of different types of committees and their intended roles and responsibilities. Most association governing documents will include provisions governing the establishment of volunteer committees and how their decisions will be enacted.

Some of the most popular types of committees are:

• Architectural Control Committee (ACC) – Especially for single-family home communities, an effective ACC plays a critical role in maintaining property values by helping to ensure that all of the owners maintain their properties in accordance with the community’s covenants, conditions and restrictions.

• Communications Committee – Communicating association news via e-mail, text messages, websites, blogs, social media, newsletters, on-site notices, mailers, etc., requires a great deal of planning and execution, which may be ideally overseen by a committee.

• Financial Committee – This committee helps to oversee the association’s finances, budget, reserves and investments.

• Special Committee – This committee is charged with enforcement hearings, implementing fines, and the enforcement of the community’s covenants and restrictions.

• Landscape and Maintenance Committee – Primarily for sprawling HOA communities, its members oversee the aesthetics, maintenance and environmental sustainability of the property’s landscaping.

• Social Committee – Getting to know one’s neighbors is always a worthwhile endeavor, and this committee plans events for association members including seasonal festivals, movie nights, barbecues and fundraisers.

By utilizing committees and working to see that they are consistently staffed by dedicated association members who are eager to take part, associations are able to help ensure that they operate as efficiently and effectively as possible while also avoiding overburdening their board members with too many issues and responsibilities. When first establishing committees, associations would be well advised to consult with highly qualified legal counsel to help ensure their proper establishment and operation.




Residents of Florida HOA Speak Out Against Association’s Use of Drones

By Michael Chapnick

The residents of the Concord Station community north of Tampa in Land O’Lakes, Fla. recently shared their complaints and confusion with a reporter from one of their local television stations over their HOA’s use of a drone equipped with a camera in their community.

The residents indicate in the station’s report that they received an online notice from their HOA alerting them that it would be flying the drone, which the association confirmed that it operated over the community in addition to a vehicle equipped with a mounted camera.

The residents who expressed their opposition to the HOA’s use of a drone were concerned about the invasion of their privacy, especially if the drone is recording video of their backyards. One of them indicates: "If the drone is flying above my property, I’m going to consider that a trespass to our property and we’re going to take appropriate measures to make sure that we protect our privacy rights."

The property management company for the association explains in the report that they are using the drone to chronicle all of the physical characteristics of the community in hopes of helping to avoid the possibility of homeowner hassles in the future. The video from the drone is being used for documentation of the state of the community, which is now transitioning from a developer-controlled association to one that is controlled by the unit owners. The company also noted that the aerial images and video could also be used for promotional and marketing purposes in the future.

While it is not uncommon for community associations and their property managers to contract for professional videotaping as part of the engineering and structural inspections that they undertake when the control of the association is turned over by the developer to the owners, the use of a drone appears to be a new wrinkle that some are now implementing. Depending on the costs, it could provide a cost-effective option for obtaining comprehensive and detailed images of the physical state of the property should any issues of latent defects ever arise.

However, due to the potential for concerns by the owners over the possibility of invasions of their privacy by the association’s use of a drone, boards of directors and property managers should use all of the means of communication that they would normally use in order to alert the owners and schedule the matter for discussion at a meeting that is open to all of the association’s members. They should be prepared to answer questions about the use of the drone and the benefits that would be achieved from having the images and video that it would capture, and they also must be prepared to address and respond to questions regarding the potential for invasions of privacy.

By being as open as possible about the use of a drone as part of an association’s property inspections during turnover, an HOA should be able to address any residents’ concerns that may arise and gain the understanding and approval of as many of the owners as possible.




Why Stopping SB 398 Should Be a Bigger Priority for Community Associations

By Laura M. Manning

Each year, our elected state representatives and senators meet in Tallahassee for a legislative session where they review and debate an extensive amount of proposed bills, only to send a few of those bills to the governor to be signed into law. For the third year in a row, our elected lawmakers will be discussing a bill that has once again resurfaced, and if passed, may have a significant impact on community associations’ wallets.

House Bill 483 — also known as Senate Bill 398 or "the home tax" bill — proposes to place a considerable amount of requirements relating to the issuance of estoppel certificates on the condominium, cooperative or homeowners association responsible for preparing them. If signed into law, community associations will need to be both financially and operationally prepared to abide by the stringent changes set forth in the bill.

An estoppel is a legally binding document prepared by a community association or its agent that discloses any liens, overdue assessments or any other money owed to the association, such as late fees and attorney’s fees. Estoppels are required by title companies in standard real estate transactions in order to inform the seller and buyer of any outstanding financial obligation(s) on the unit or parcel. If prepared incorrectly, the community association could be liable for miscalculated or incomplete balances, resulting in a loss for the association.

Contrary to some people’s beliefs, estoppels aren’t generated by the push of a button. They take time and precision to prepare, which is why a bill that shifts even more of the burden on the association could be detrimental.

One of the main components of this proposed bill is to mandate more rigorous deadlines for the preparation of estoppels. Currently, associations have 15 days to prepare and deliver an estoppel once it is requested. The bill would shorten this period to 10 business-days, which could be difficult for associations of varying sizes and levels of sophistication, as some will be anchored by antiquated bookkeeping or a lack of resources.

The bill also provides a template for required information to be included in the estoppel, including any existing rule violations, approval requirements for sale or lease, and utilities included with assessments. Additionally, under the proposed law, estoppel preparation fees will be capped at a set amount, leaving the owners of an association to pay the bill for any differences in costs for the creation of an estoppel. Eventually, this could lead to higher assessments being placed on those residing in the community in an effort to offset the additional expenses incurred in the preparation of extensive estoppels.

Rushing the estoppel preparation process can also contribute to miscalculations of the total sums owed, adding to the association’s financial responsibilities because any discrepancies would have to be written off by the association.

The most notable and harmful requirement, however, involves imposing that associations pre-pay estoppel costs when services are rendered. This would mean that associations will have to advance money from their own account, regardless of whether or not the transaction goes forward, and wait to be paid from the proceeds of the closing. However, should the sale not close, the association may either seek reimbursement from the seller or be forced to lose the money it advanced. This will inevitably lead to higher assessments in order to make up for these losses.

Despite the significant push from the interest groups funding this bill, lawmakers still have a duty to listen to their constituents. We encourage community association members to reach out to their state representatives and senators to voice their concerns regarding how this bill will negatively impact their communities.




Condominium Association Parking Restrictions and Enforcement

By Michael E. Chapnick

One of the most common problem areas for condominium associations and their property management is parking. Spaces are at a premium in most communities, and issues arise when unit owners and tenants fail to park in their designated spots. Associations and their property managers must be well prepared in order to effectively contend with parking violations.

Most condominium bylaws allow for the adoption of reasonable rules and regulations governing the use of the common elements, which typically include parking areas and spaces. Boards and management should determine whether the bylaws and/or rules are already adequately addressing parking in the community or if amendments to the governing documents and/or rules may be needed.

Some of the most typical issues addressed by parking rules are designated parking areas and spots for owners, guests and vendors, and spaces for commercial vehicles, boats on trailers, recreational vehicles, personal watercraft, campers, motorcycles and all-terrain vehicles. Some communities have restrictions on the number of vehicles that a unit owner is allowed to park onsite, and some have time limits for the parking of vehicles in certain areas.

Bear in mind that all parking rules and restrictions must comply with the Fair Housing Accessibility Guidelines developed by the Department of Housing and Urban Development (HUD) with respect to designating handicap parking.

Once clear rules and restrictions are in place, condominium boards should develop effective enforcement measures, which will typically include warnings, fines (typically using a graduated scale that increases commensurately with each violation, but consistent with statutory constraints), and towing. The bylaws or rules pertaining to towing should allow for the association to assess the costs to the corresponding unit owner, and towing notices and requirements must strictly comply with Florida law.

If parking violations persist with wanton disregard by an owner, associations may seek injunctive relief through mandatory non-binding arbitration conducted by the Florida Department of Business and Professional Regulation, and/or by going to court. Injunction actions to enforce an association’s governing documents allow the prevailing party to recover their attorney’s fees and costs. If a unit owner continues to violate the parking rules after an injunction has been granted by the court, it is possible that the owner can be found to be in contempt of court.

Keep in mind that disabled unit owners may be able to request a reasonable accommodation related to parking that would enable them to deviate from some of the related rules and restrictions. Also, when there are not enough designated handicap parking spaces to accommodate all of the disabled owners, an association could be required to designate additional spots. Given the wide range of claims related to parking accommodations under the Fair Housing Act, associations should always consult with highly experienced legal counsel regarding each specific request to assess whether the accommodation is reasonable and should be granted.

Parking is a limited and valuable commodity in all condominium communities, and as such there will always be issues that arise. By carefully reviewing their bylaws, rules and enforcement measures to help ensure that they adequately address parking restrictions and violations, associations can help to minimize the potential disruptions that may be caused by parking issues.




Florida Medical Marijuana Amendment’s Impact on Community Associations

By Michael E. Chapnick

With the approval of Amendment 2 last November to legalize the use of medical marijuana in Florida, the state legislature and Department of Health are now developing the rules and regulations that will govern the use of cannabis by those who suffer from a number of ailments listed in the new constitutional amendment. Likewise, now is also the time for associations to begin discussing and considering the implementation of their own rules and restrictions regarding the use of the drug by unit owners in their communities.

For most communities, the question of whether the use of medical marijuana should be allowed in the common areas will likely cause the most unease. Other concerns include the use of cannabis inside of the residences, especially in condominiums where the odor could permeate into the common elements or other residences, and some properties may wish to ban the drug from the community in its entirety.

It remains unclear whether the state’s lawmakers will attempt to ban the smoking of medical marijuana. If smoking marijuana is allowed under the laws that will be adopted in order to comply with the amendment, community associations will need to address whether they must make exceptions to their rules in order to allow residents with a doctor’s prescription to smoke medical marijuana.

The exact wording of the amendment sheds some light into the question of whether associations can ban the use of the drug in their common areas. It states that "[n]othing in this section shall require any accommodation of any onsite medical use of marijuana in any correctional institution or detention facility or place of employment or of smoking medical marijuana in any public place." If the common areas of an association are deemed to be a "public place," associations will be able to prohibit the smoking of medical marijuana in their common areas.

Because marijuana is still regulated as a Schedule I drug under the Federal Controlled Substances Act, many questions remain to be answered as to whether the Fair Housing Act will require associations to grant reasonable accommodations to patients who are prescribed the drug. Will the U.S. Department of Housing and Urban Development consider it a reasonable accommodation, given that the possession and use of cannabis remains a federal crime? The agency’s general counsel has previously gone on the record stating that an accommodation request for the use medical marijuana is not reasonable and does not have to be granted. However, accommodations may also be requested pursuant to state and local fair housing laws, and if such a request is made, a different rule of law may apply.

Given all of the questions that remain unanswered, community associations should tread carefully in their responses to requests for reasonable accommodations under the FHA by patients with prescriptions for medical cannabis. They will need to keep a close eye on the new rules and restrictions governing medical marijuana that will be implemented by the state legislature and take effect later this year, and they should consult with highly qualified legal counsel to chart the best course on this issue for their particular community.




Associations Need to Seek 

Ejectment Rather Than Eviction 

for Some "Tenants"

By Laura M. Manning

When the Condominium Act was amended several years ago to allow associations to demand and collect rent directly from the tenants of unit owners who were delinquent in the payment of their monthly fees, community associations thought it was an answer to their prayers. Associations were struggling to recover from the foreclosure crisis, and many homeowners made the decision to rent their units to make some money but, unfortunately, they also chose not to pay their associations.

However, utilization of this amendment has proven to be difficult and sometimes costly to enforce in cases in which de facto tenants and their landlords are able to demonstrate to the court that a tenancy under the letter of the law is not actually in place. How many times have we heard that the tenant is "family," that the tenant does not pay the landlord, and that there’s no lease in place?

A noteworthy example is found in a ruling last year by the Miami-Dade County Circuit Court Appellate Division in the case of Cecil Tavares v. Villa Doral Master Association. Tavares had conveyed his condominium unit via quit claim deed to a new owner, but he and his wife continued to live there. When the new owner went into arrears with the association, it attempted to collect the rent directly from Tavares and eventually filed for an eviction.

The county court granted default judgment in favor of the association and issued a writ of possession to enable it to move forward with the eviction, but Tavares appealed on the question of whether the court erred by defining him as a tenant based on the quit claim deed.

The appellate division court found no language in the quit claim deed indicating that the owner and the resident had created a legal tenancy (which requires either a written or oral agreement), and the association did not provide a copy of a residential lease agreement. It also found that there was no evidence that any kind of written or oral agreement existed, and ultimately concluded that it could not define the defendant as a tenant under the law.

As such, the court vacated the order of default judgment and remanded the case for further proceedings to determine if the defendant was a tenant under the law. If the county court finds that Tavares is not a defendant, the appellate court ruling directed it to transfer the case to the circuit court for ejectment proceedings, which are typically reserved for use against squatters and fall under the jurisdiction of circuit courts rather than county courts. The appellate division court also granted the defendant’s motion for attorney’s fees from the association because he was the prevailing party.

Ejectments are typically more complicated than evictions, especially if they are contested, and the process can often take quite a bit longer than an eviction to complete. It begins with the filing of a complaint for ejectment, which must provide 20 days for the defendant to file a response. A hearing will follow the defendant’s answer, and the plaintiff association will need to demonstrate to the court that it has a present right to possession of the unit under Florida law.

Other associations attempting to collect the rent directly from the tenants of delinquent owners have also encountered similar defenses in which the tenants and owners claim to be friends, relatives or coworkers, and indicate that no agreement is in place and no rent is being paid.

In cases such as these in which it becomes apparent that it will be difficult to establish that an actual tenancy is in place, the appropriate remedy may be an action for an ejectment in circuit court rather than pursuing an eviction in county court.




Community Associations Responding to Soaring Popularity of Drones

By Roberto C. Blanch

The growing use of drones by consumers across the U.S. is leading to the adoption of new rules and restrictions by the federal government, state governments and community associations. Questions regarding safety, property damage and privacy abound with drones, and associations are responding by establishing clear parameters for their use by unit owners.

Last year, the Federal Aviation Administration enacted new regulations for the use of unmanned aircraft systems, which are more commonly referred to as drones. For recreational users, the FAA now requires that drones must be properly registered and labeled with the registration number. They must only be flown below 400 feet and always within sight of the operator, and they are banned from use near other aircraft and airports as well as over groups of people, stadiums, sporting events, or emergency response efforts.

Privacy concerns over the use of drones with cameras were addressed by a new Florida law that was enacted last year. The law stipulates that drones with cameras may not be used to record images of privately owned properties or of the owners, tenants or occupants of properties in violation of their reasonable expectations of privacy without their written consent. Reasonable expectations of privacy are presumed if individuals are not observable by others located at ground level in a place where they have a legal right to be, regardless of whether they are observable from the air with the use of a drone.

For associations, the implementation of new rules and restrictions concerning drones should begin with a discussion that is open to all of the unit owners at a board meeting. This enables all of the members of an association to share their thoughts and concerns, which are then taken into account by the board in the development of new rules.

If an association concludes that it wishes to permit the operation of drones in the community, it should consider the adoption of rules and restrictions to help ensure safety. These include the establishment of designated take-off/landing sites, restricting their use to daylight hours, developing penalties for violations, and clarifying that the association is not liable for any property damage caused by these aircraft. Additionally, the association board or management should consult with its insurance agent or consultant to confirm that it is adequately insured with regard to the risks that may be presented as a result of the use of drones at the property governed by the association.

Once the rules are established and enacted, associations should communicate them to the membership via email, mail, posted notices, newsletters, and any other means that they typically use.

Sales of drones to consumers in the U.S. are expected to grow from 2.5 million drones in 2016 to 7 million in 2020, according to a report from the FAA. With the continued growth in their popularity and usage, now is the time for associations to work together with their members in order to develop and implement the rules and restrictions that make the most sense for their specific community.




HOA Bookkeeper Gets Booked for Embezzling $95K

By Laura M. Manning

For community association practitioners, it often seems that no matter how much we caution homeowners and condominium associations to take all of the necessary safeguards in order to prevent theft and embezzlement, new cases of blatant fraud always seem to crop up.

The latest example was chronicled in a recent article by the Palm Beach Post. The article focuses on the arrest of the bookkeeper for the master homeowners association of Cypress Lakes, a 1,000-home, 55-plus community off Haverhill Road in West Palm Beach. Kristine K. Moore, the bookkeeper, was charged with embezzling nearly $95,000 over the course of years from the association. Moore was paid $44,000 per year and had been employed by the association for more than six years.

According to a police affidavit, management reviewed the association’s credit card bills and called police in April 2014 after discovering about $10,700 in charges for personal purchases during the preceding several months. Additional review then uncovered much larger losses, including missing cash deposits that had been paid by homeowners.

The purchases included nearly $3,000 at Best Buy, $8,000 at Wal-Mart and, and thousands more from such places as Springhill Suites, Supercuts, Sprint Wireless, Publix, K Star Diamond & Jewelry, and Victoria’s Secret. They included hotel bills, perfume, 46 cell phone cases, a Louis Vuitton purse, and even an engagement ring.

The preliminary accounting review revealed that Moore had been using the association’s funds for personal expenditures since 2011. On March 26, 2014, she overheard the property manager in the office discussing the discovery of serious discrepancies in the association’s financial records. She then promptly picked up her belongings, left the property and never returned to work.

Cases such as this illustrate the importance for associations to put in place the most effective precautions and safeguards in order to help ensure that they do not become a victim. These include monthly reviews of all of its bank and credit card statements by at least two people, ideally including both a board member and management staff. There should also be annual audits by experienced and reputable independent accountants to carefully review and certify the validity of the financial records for all association accounts and payments.

By using these and other best practices for avoiding fraud and theft of association funds, HOAs and condo associations are able to greatly diminish the possibilities for larceny and uncover it as quickly as possible if it does occur. Visit to read the complete article in the newspaper’s website.




Bank Loans Offer Worthwhile Financing Option for Many Associations

By Michael E. Chapnick

While maintaining an adequate level of reserve funds for deferred maintenance, capital improvements and other major expenses is always recommended, community associations that find their reserves do not cover all of their needs have a worthwhile option other than special assessments that they should explore and consider.

Bank loans and lines of credit for associations were very difficult to obtain during the height of the foreclosure crisis, but happily for many Florida communities those days are long gone. Now, there are a number of lenders that focus on loans for associations and offer highly competitive rates and terms.

Special assessments are typically the first option that associations consider to cover shortfalls in their reserves and take on important renovations or other unforeseen expenses. However, it may not be the preferred choice for many communities. Millions of U.S. homeowners are still recovering from the crash of the housing market and do not have the ability to secure a home equity line of credit in order to pay a special assessment. In addition, the implementation of a special assessment is viewed as a sign of financial distress in an association by lenders considering FHA-backed home loans for buyers in a community, and this can ultimately take a significant toll on sales and property values.

Most associations will begin their research into their financing options by first turning to the bank that maintains their operating and/or reserve accounts. While this is the obvious place to start, in the majority of cases they are also going to need to shop around.

Community association loans are significantly different than standard commercial loans because the collateral used to secure the loan is intangible. Lenders in the association context collateralize the debt by accepting an assignment of the association’s collection and lien rights for the current and future assessments paid by its members. Typically, the lenders that have a particular focus on association loans are best equipped to correctly ascertain their level of risk and exposure, and provide the best possible rates, terms and conditions.

Many lenders will require associations to move their operating and/or reserve accounts to the bank in order for it to grant the loan, and these deposits provide a commensurate level of leverage to help the association to secure a low interest rate.

In addition to a careful review of the association’s financial records, lenders considering these loans will also typically require an opinion letter issued by the association’s legal counsel confirming that they have reviewed the association’s governing documents and determined that it has the right to enter into a loan agreement and that, among other things, all conditions required to do so have been met. Experienced association counsel can also assist in reviewing and negotiating all of the terms and conditions of the loan to help ensure that the association’s interests are well protected.

When it comes to funding a major project, handling unforeseen expenses or even paying for annual insurance premiums, associations that do not have sufficient reserves or wish to adopt special assessments should consider their bank financing options. By shopping around and relying on highly experienced legal counsel to help negotiate favorable terms, associations may find that a commercial loan presents the best choice for their specific needs and circumstances.




Florida Supreme Court Decision

Represents Win for Residential 

Insurance Policyholders

By Laura M. Manning-Hudson

The Supreme Court of Florida recently issued a decision that represents a significant win for millions of Florida homeowners who rely on insurance to protect their residences.

The court’s decision in Sebo v. American Home Assurance Co. rejected the "efficient proximate cause doctrine" in favor of the "concurrent cause doctrine" for property insurance claims. The court determined that the appropriate theory of recovery for claims in which two or more perils contribute to a loss – but at least one of the perils is excluded from coverage – is the "concurrent cause doctrine." The ruling is significant because it means that when there are two or more perils that contribute to a loss, a carrier cannot deny coverage if one of the causes is covered. Prior to Sebo, if a claim was submitted where two perils contributed to the loss but one was excluded from coverage, the insurance carrier could deny coverage. Under Sebo, the carrier will have to provide coverage.

Policyholders should applaud this decision because under the efficient proximate cause theory, which the court rejected, when multiple perils caused a loss, if insurers were able to demonstrate that the efficient cause (the cause that sets the other in motion to which the loss is attributed) was excluded from coverage under the policy, they could deny the claim.

With this decision, insurers must now apply the concurrent cause doctrine, so they will be required to cover a loss even if the covered peril is the secondary cause of the loss that was concurrent with the primary or efficient cause.

Because many property losses in the state come as a result of hurricanes in which both wind and flood damage occur, concurrent causes are very common in Florida. If the lower court’s ruling in this case would have been allowed to stand, property claim litigation would have increased dramatically in order to determine the efficient proximate causes of losses.

Our firm’s other community association attorneys who also focus on insurance issues and I applaud this decision by the state’s highest court.




Firm’s Attorneys Discuss Ramifications of Thwarted Condominium Termination 

with Reporters from 

Daily Business Review, The Real Deal

By Michael F. Chapnick

Our firm’s Helio De La Torre and Lindsey Thurswell Lehr were interviewed recently by reporters from the Daily Business Review, South Florida’s exclusive business daily and official court newspaper, and The Real Deal, one of South Florida’s leading sources for real estate news and analysis. They were asked by the journalists for their insights into the ramifications of a decision by the Third District Court of Appeal that has significant implications for the future of condominium terminations in Florida.

The case pitted the Tropicana Condominium Association against the developer of the neighboring Ritz-Carlton Residences in Sunny Isles Beach. The appellate court ruled in favor of the developer, which had ties to a group of five unit owners at the Tropicana, finding that the property’s bylaws required unanimous approval for a sale, despite the 80 percent threshold in the amended condominium termination legislation from 2007. It agreed that the five holdouts’ refusal to sell was enough to block the termination that was favored by the association because the property’s 1983 governing documents predate the legislative amendment and require all unit owners to approve termination.

The Third DCA ruled that the 2007 changes to the Florida statute don’t apply retroactively to condominium declarations from prior to 2007 unless they contain certain language that incorporates amendments to the state’s Condominium Act.

The appellate court said in its ruling that "when referencing Florida’s Condominium Act, the declaration [for Tropicana] did not contain the words ‘as amended from time to time.’ Absent this language in the declaration, changes by the legislature to the Condominium Act subsequent to the effective date of the declaration do not become part of the declaration automatically."

As Helio De La Torre explained in the article from The Real Deal that appeared on Nov. 18:

"The statute seemingly had language that suggested the intent was to make it retroactive," said law firm partner Helio De La Torre, who has represented condo associations in similar cases centering on termination of associations through votes by unit owners. He is a partner of Coral Gables-based Siegfried, Rivera, Hyman, Lerner, De La Torre, Mars & Sobel, P.A.

"We had communities where bulk purchasers were coming with 80 percent [of the units] and terminating," he told The Real Deal, "and the only chance we had to fight them was to make the argument that it shouldn’t have been approved with 80 percent, that we had more than 10 percent opposed. So, under the new statute we could fight them."

But De La Torre said the ruling in the Tropicana case made that argument less potent: "Now, this court knocks out that argument."

Lindsey Thurswell Lehr’s analysis was featured prominently in the article that appeared in the Daily Business Review on Nov. 23:

The ruling will affect attorneys like Lindsey Thurswell Lehr of Siegfried Rivera Hyman Lerner De La Torre Mars & Sobel in Coral Gables.

Although the minority owners triumphed in the Tropicana appeal, Thurswell Lehr said the ruling eliminates a key strategy for others that rely on the law’s prohibition of sales in cases where 10 percent of owners object. In the past, these attorneys pointed to the wording of the legislation to argue it covered all properties in the state.

"The argument we like to make is the termination statute offers this protection," Thurswell Lehr said. "But now you have an appellate court basically saying that the amended termination statute does not apply retroactively. You are bound by what’s in your declaration."

Our firm congratulates Helio and Lindsey for sharing their insights into the ramifications of this ruling with the readers of the Daily Business Review and The Real Deal.




Shortening the Board Member Learning Curve

By Roberto C. Blanch

For those who live in community associations, board membership should be viewed in the same vein as a civic duty. An effective board of directors is essential for the financial and administrative wherewithal and stability of every community association, so all unit owners who are able should volunteer to serve at least one term to contribute to their community’s overall success.

Some association members have the mistaken perception that the responsibilities of serving as a director are too complex and demanding for their capabilities and skill sets. While it is a serious commitment in terms of time and attention, board membership should not be viewed as being too daunting of an undertaking for the average unit owner.

The key to success for practically every board member lies in their use of the most effective professional and educational resources that are available. Of course, this should begin with relying on only the most experienced professionals such as attorneys, property managers, accountants, insurers, etc., but that is just the start.

The Florida Legislature, in its recognition of the importance for board members to become educated and gain access to vital informational resources, enacted a law several years ago requiring that new board members become certified within 90 days of their taking office. The law establishes that they may do so by attending an educational course that has been certified by the Florida Department of Business & Professional Regulation, such as the board member certification seminars that are offered by our firm on a regular basis, or by signing an affidavit certifying that they have read the respective Florida Statutes, along with their association’s declaration, articles of incorporation, bylaws, and rules and regulations.

Needless to say, the educational seminars are by far the superior option for board members to effectively gain a true understanding for everything that the position entails. They cover all of the basics of community association governance and the laws that are involved, and they also touch on many of the most common problem areas that boards typically encounter.

In addition to attending a certification seminar, board members also have countless online resources that are replete with all of the most vital information for associations. The Community Associations Institute, which is the largest organization representing community associations in the world, offers a great deal of helpful articles and guides at Also, our firm’s blog at is one of the leading sources for information for community associations in the state.

To stay abreast of new laws and concerns that affect a wide-range of community associations, board members should also attend expos and events that are aimed at community associations and their members, and they should read publications such as Condo News, Florida Community Association Journal and others.

A wise move for many of those who are considering board service is to first begin by taking part in their association’s meetings and perhaps serving on one of its committees before moving on to seeking election for a board seat.

By serving on their association’s board of directors, association members are answering the call of service to their community and their fellow neighbors. With the help of all of the most effective resources that are available to directors, they can do their part to help ensure the long-term financial and administrative wellbeing of their community.




TV News Report on Fate of South Florida’s "Condo Crime Family"

By Laura M Manning-Hudson

A recent report by investigative reporter Bob Norman of Local 10 News (ABC) in South Florida documented the ultimate day in court for the area’s so-called "Condo Crime Family."

Norman’s report chronicled the case of Robert and Rachel Dugger, a married couple, and their daughter Rachel Badilla, who were dubbed the Condo Crime Family by former state Rep. Julio Robaina. The lawmaker oversaw a state investigation into condo corruption, and he concluded that the Dugger family was the condo management team with the most complaints ever in the state of Florida.

The news report states that the family had accrued more than 30 complaints during its 20 years in business in managing South Florida condominiums. The allegations against them ranged from rigging elections to stealing funds.

In the report, Norman confronts the Duggers and Ms. Badilla with questions that they refused to answer at their court hearing, in which they pleaded guilty to grand theft from the Kennedy House condo in North Bay Village as well as conspiracy to commit grand theft from other Miami-Dade condominiums. Badilla had been charged with forging checks to herself from the association and stealing the money, along with using association keys to enter a vacant unit and strip it of its kitchen and other goods.

The trio were sentenced to five years probation and 300 community-service hours, and ordered to pay more than $500,000 in restitution and other costs. They were also ordered to surrender their condo-management licenses and cease all condo work in Florida.

According to Jorge Brito, a retired detective who helped spark the police investigations that nabbed the family, the Duggers "put a manual together on how to commit fraud in condominiums. This has been a nightmare."

To watch the report in the station’s website, visit




Contending with Apathy Towards Board Member Service in

Community Associations

By Roberto C. Blanch

Community association living has many advantages and desirable qualities. Residents share expenses in order to be able to enjoy relatively carefree maintenance of their property and the use of amenities such as pools, fitness centers, meeting rooms, and other appealing features. However, in exchange for enjoying benefits derived from community association living, such as the pooling of the financial burdens of an association via the monthly maintenance payments, members should be mindful of a vital commitment which contributes to the wellbeing of their community: serving on the association’s board of directors.

An effective board of directors is critical for the financial and administrative performance of a community and association. Boards, which are in charge of making very important decisions affecting all unit owners and residents, are comprised of volunteer owners who rise to the call of serving their community in order to make it the best that it can be for all of an association’s members.

Unfortunately, in many cases, we often find that unit owners become complacent when a community’s board of directors is doing its job effectively. Volunteering for board service is often perceived to be a daunting and thankless commitment by individuals who lead busy lives and do not wish to take on new responsibilities.

Effective remedies to tackle apathy towards board member service typically stem from implementing and maintaining long-term strategies to encourage serving. It should begin by encouraging all members of the association to attend and participate in the association meetings, motivating eligible attendees to consider serving on the board of directors in the future. Sharing informational resources on board service from industry groups, such as the Community Associations Institute ( and other reputable sources, may also stimulate owners to aspire to serve on the board.

Association members who are more likely to become board members are those who take part in the regularly scheduled meetings and wish to have their voices heard, so associations should consider scheduling meetings for the more convenient dates and times for all of the members to attend.

The use of committees may also be an effective tool for creating interest in association matters and board membership. Seeking a board seat may be perceived as too big of a step for many owners, but serving on an association’s budget, social, fining, architectural review or other committee is less intimidating, often serving as a natural incubator and stepping stone for future board members.

Associations having difficulty filling board seats should also consider using officers who are not board members, to the extent permitted by the association’s governing documents. Many associations do not require that all of the officers of the association must also be members of the board of directors. As an example, an owner with bookkeeping experience may be open to serving as association treasurer without serving as a member of the board.

Another option for associations is to consider the size of their board of directors. Five is the most typical size, and some communities operate very effectively with boards comprised of only three members. Obviously, the smaller the board, the easier it is to fill with willing and able directors.

Community association members should also bear in mind the consequences of not having a viable board of directors, as this would cost the association significant funds that would need to be recouped by increased fees and assessments. The ultimate doomsday scenario for community associations that are unable to establish a board of directors is for a judicially appointed independent third-party receiver to assume control. The receiver and all of the other professionals whom they would hire to serve in the capacities of officers of the association would receive compensation from association funds, which would probably necessitate a special assessment and/or increased monthly fees.




Community Associations

Suspending Use Rights 

for Common Elements, Amenities

By Roberto C. Blanch

In 2010, at the height of the recent foreclosure crisis, community associations in Florida gained an effective tool to aid them in their efforts to collect upon delinquent assessments. It was at that time that the legislature amended Florida law to authorize community associations to suspend the rights of unit owners and their tenants to use portions of the community’s common elements and amenities if the owner became delinquent by more than 90 days in their obligation to pay association monetary obligations, including assessments. Currently, the law also extends the association’s right to suspend such use rights in the event that the owner or their tenants should fail to comply with the association’s governing documents or rules.

Prior to then, associations had few practical remedies at their disposal to address violations of rules. For instance, associations had the options of filing costly and lengthy lawsuits or arbitration actions, or imposing nominal fines. As for collection of delinquent assessments, associations’ options were limited to placing liens on the homes or units owned by delinquent owners – a remedy with limited effectiveness during the foreclosure crisis due to the statutory safe harbor protections benefiting lenders in Florida.

However, since its implementation, some associations have found that suspending owner and tenants’ rights to use common elements or facilities may be an effective measure for contending with delinquencies as well as violations of rules and other restrictions.

If an owner is more than 90 days delinquent in paying a monetary obligation to the association, the rights of the owner and their tenant to use the common elements until the monetary obligation is paid in full may be suspended. In such cases, no written notice must be provided to the owner prior to suspending such rights. If the suspension is based on an owner/tenant’s failure to comply with the association’s governing documents or rules, then the board must provide a written notice and opportunity for a hearing at least 14 days in advance of the suspension.

The portions of elements and facilities typically subject to suspension include pools, fitness centers, recreational rooms, tennis courts, and others. Also, in addition to applying the bans to owners and their tenants, they also apply to their invited guests. Bear in mind that associations may not prohibit an owner or tenant from having vehicular or pedestrian access to a residence, so their parking rights may not be suspended, nor may an association suspend utility services or the use of the common areas and elevators that are used to access the unit.

The success of this type of remedy may depend upon various factors, including whether the community has the ability to enforce the suspension or the existence of facilities subject to suspension, the use of which are desired by owners or tenants. Also, when implementing the suspension, board members should work closely with property management and onsite staff to develop policies and procedures that may be required in order to successfully enforce it.

In light of the implications and procedural considerations related to the suspension of use rights, association board members and managers should work closely with highly qualified and experienced legal counsel in order to determine the best course of action for their community.




A Primer on Association Election Basics as Season is Set to Begin

With the holiday season approaching, now is the time that many condominium associations in Florida are gearing up for their annual meetings and board member elections. It is essential for the current board and property management to have a complete understanding of the condominium election process.

At least 60 days prior to date of the meeting and election, the association must mail, deliver or electronically transmit a first notice of the election to each unit owner. This first notice sets forth the date, time and location of the meeting. Those members who wish to be considered for board membership must then give written notice of their intent to run for the board to the association at least 40 days prior to the scheduled date of the election. Although not required, candidates have an additional five days to submit information sheets about themselves.

A second notice of the annual meeting and election together with an agenda for the meeting must then be mailed, delivered or electronically transmitted to all of the members together with a ballot that lists every candidate who submitted their names to run for board membership. Any information sheets submitted by the candidates must also be included with the distribution of the ballot – regardless of their content. Return envelopes that allow for owners to print and sign their names and include their unit numbers should also be included with this mail out.

In order to have a valid election, and be able to open envelopes and count votes, at least 20 percent of the eligible voters must cast a ballot. Unit owners are not permitted to allow any other person to vote using their ballot, and all of the ballot envelopes must be retained by the association for at least one year.

Within 90 days after the election is completed, each newly elected or appointed director must certify in writing to the secretary of the association that they have read the association’s declaration of condominium, articles of incorporation, bylaws and current written policies; they will work to uphold these documents and policies to the best of their ability; and they will faithfully discharge their fiduciary responsibilities to the association’s members. Otherwise, they must submit a certificate of having satisfactorily completed an educational curriculum administered by a division-approved condominium education provider (such as our law firm which regularly conducts board member certification seminars). Those who fail to timely file the written certification or educational certificate are suspended from service on the board until they comply.

The Florida Department of Business and Professional Regulation has published a helpful condominium election brochure covering most of the procedural aspects of condo elections. A PDF of the brochure is available at

Elections can sometimes prove to be extremely challenging and contentious for associations, and it is imperative to consult closely with highly qualified and experienced legal counsel in order to help ensure that they adhere to all of the statutory mandates.




South Florida Condo Association Files Class Action Lawsuit Against Makers of Pokémon Go

By Michael E. Chapnick

The South Florida condominium association that I wrote about in this column recently after it was featured in a local TV news report on its problems being caused by Pokémon Go players has now filed a class action lawsuit against the makers of the immensely popular game app.

As was documented in the recent report that appeared on Local 10 News (WPLG-ABC) in Miami-Dade and Broward, the oceanfront Villas of Positano in Hollywood, Fla. has essentially been besieged by crowds of people every night who are playing the "augmented reality" game. The 62-unit condominium tower has been designated as a PokéStop in the game, which the lawsuit alleges has led to "out of control crowds" behaving "like zombies, walking around bumping into things" where the property adjoins the public boardwalk along the beach.

The complaint, which was filed recently in the U.S. District Court for the Northern District of California, is one of several similar new lawsuits against San Francisco-based game developer Niantic and the two other companies behind the game.

The lawsuit states that players have been drawn to the Villas to capture rare Pokémon characters that are programmed to spawn when they are first released to the public at 3 a.m. EST.

The suit states that the Pokémon Go players linger for hours, litter, and many even use "the Villas’ landscaping as a toilet during their nightly incursions." It notes that the association has made multiple requests to Niantic for the property to be removed as a PokéStop but has only received form responses.

For now, the community has hired off-duty police officers to patrol the premises from 11 p.m. to 4 a.m.

Similar to the other lawsuits that were filed by a New Jersey homeowner and a Michigan couple, this lawsuit seeks to be certified as a class action on behalf of all U.S. real estate owners whose property lies on or near the GPS coordinates of a PokéStop or Pokémon Gym. The attorneys for the association have also noted that these in-game sites, where the players capture and feed Pokémon or fight virtual "battles" with other players, have been located in cemeteries and at the U.S. Holocaust Memorial Museum in Washington, D.C.

As I noted in my prior article, there are a number of measures that community association boards of directors are now considering and implementing to address the growing nuisance, safety and security issues being caused by the game’s players. Many are starting by issuing a bulletin to all of the owners, residents and staff reminding them that excessive noise in any of the common areas – including from Pokémon Go players – creates nuisances that are in violation of association rules, and building management/security should be contacted if any such nuisances arise so that immediate action may be taken.

Management, security and valet staff are also being tasked to maintain a high level of vigilance for nonresident players attempting to infiltrate communities as well as for residents and their guests creating disturbances while they are playing. Other considerations include restricting access to lobbies and common areas at night, and even adopting rules governing the times of day that the game (and others like it which are sure to come) can be played in the common areas.

To read the 19-page complaint, which includes screenshots of the Pokémon characters that are spawning at the property, visit




Associations Should Utilize Proper Vetting Protocols When Considering Service and Emotional Support Animal Requests

By Laura M Manning-Hudson

Disagreements over service animals have consistently ranked among the most prevalent types of disputes that arise between community associations and their residents. In South Florida alone we have witnessed numerous investigations concerning discrimination claims — many of which still serve as stark reminders of the severe implications of mishandling requests for service animal accommodations.

Most government investigations begin with a complaint from a resident indicating that their request for assistance animals had been denied or that they had refrained from requesting an assistance animal for fear of being evicted.

In light of the patterns we have seen throughout the years, associations should refrain from automatically denying requests for permission to keep service or emotional support animals without first requesting additional information from the resident. By law, associations are entitled to make inquiries in order to determine if the request is legitimate and whether a service or emotional support animal is a necessary accommodation in order for the resident to have an equal opportunity to use and enjoy their dwelling.

Associations are entitled to inquire about how the disability affects the resident’s major life activities (walking, breathing, working, seeing, hearing are examples of some defined major life activities), and how the animal assists the individual with any major life activity that is impaired by their disability when the disability or the need for the requested accommodation is not apparent. Associations may also request that the resident provide this information from their doctor.

The most difficult disabilities that associations grapple with are those that are relieved by emotional support animals as opposed to a service animal. However, just because the disability is not readily apparent, but rather psychological in nature, does not mean that the resident’s claim is bogus or deniable. If a resident is being treated for depression, especially if they have lost a spouse or loved one and are receiving psychiatric therapy as well as perhaps also medication, it is difficult to deny a doctor’s claim that the animal provides the emotional support that is necessary for them to perform the most basic major life activities such as going to work, buying the groceries and even simply just getting out of bed.

Associations must keep in mind that it is the resident’s burden to prove the disability and that the relief provided by the service animal is necessary to afford them an equal opportunity to use and enjoy the dwelling. However, associations and property managers should always engage in discussions with the resident by requesting and evaluating all of the necessary information so that they may make an informed decision.




TV News Report: Hollywood Condo Association Considers Lawsuit Against ‘Pokemon Go’

By Michael E. Chapnick

The recent report by Local 10 News (WPLG-ABC) in South Florida about a Hollywood, Fla. condominium association that is considering filing a lawsuit against the maker of the Pokémon Go game app came as no surprise to our firm’s community association attorneys. We are now starting to hear from many of our condominium and homeowners association clients about their distress regarding the nuisances and potential security and liability issues that are arising as a result of the game and its players.

The station reports that the condominium association for the Villas of Positano is considering legal action to combat the throngs of Pokémon Go players who flock to the beachside building in the early morning hours.

The issue for the property is that it is a "PokeStop" for the popular game, meaning that the virtual monsters which the players are trying to find can be found at the entrance to the property that adjoins the public boardwalk along the beach. Rare Pokémon monsters are released at midnight Pacific Time, so at 3 a.m. EST hundreds of players make their way to the condominium’s doorstep.

The property manager is quoted in the report indicating that the players urinate in the bushes in the property, litter and make a great deal of noise, which disturbs many of the residents.

The report indicates that Hollywood police are aware of the problem, but they have said that those who remain on the boardwalk and do not cause a disturbance are not breaking the law. However, unfortunately for the association, many of the players are infiltrating its property in their search for the virtual characters.

The association is considering joining a class-action lawsuit or filing one of its own because the game’s maker has yet to remove its location as a PokeStop.

In addition to the problems arising from nonresidents, our firm’s other attorneys and I have also been made aware that there are also issues arising caused by residents and their guests who are gallivanting through the hallways and common areas at all hours while playing. The game features "lure modules" and virtual gyms to encourage players to meet and wage battles with their Pokémon, so players are interrupting their searches to also congregate and play it together in the common areas.

Boards of directors are now beginning to address these issues. Many are starting by issuing a bulletin to all of the owners, residents and staff reminding them that excessive noise in any of the common areas – including from Pokémon Go players – creates nuisances that are in violation of association rules, and building management/security should be contacted if any such nuisances arise so that immediate action may be taken.

Management, security and valet staff are also being tasked to maintain a high level of vigilance for nonresident players attempting to infiltrate the property as well as for residents and their guests creating disturbances while they are playing. Other considerations include restricting access to lobbies and common areas during nighttime, checking to make sure the association has sufficient insurance coverage, and even adopting rules governing the times of day that the game (and others like it which are sure to come) can be played in the common areas.

The video of the recent report can be viewed on the station’s website at




New Monitoring Services Help Associations Catch Owners Conducting Unauthorized Airbnb Rentals

By Roberto C. Blanch

The problem of short-term rentals with the help of Airbnb and other similar websites in violation of community association rules has quickly become one of the most pressing issues facing associations today. Even though Airbnb, HomeAway and VRBO claim they prohibit their hosts from renting residences in communities with rules against short-term rentals, enforcement of this policy by the online home sharing providers is virtually nonexistent.

This makes it incumbent upon the associations and their property managers to proactively monitor and investigate for unauthorized rentals and their online listings, which can be extremely difficult. In most cases, the unit owners conducting the rentals know full well that they are violating their association’s rules, so they do what they can to avoid detection.

Their ploys, which typically include walking their new guests into the property and advising security that their visit is authorized, are enabling many rentals to go undetected by management and staff. The result can be very troubling for associations, as unfettered short-term rentals can create a revolving door for guests with none of the prior screening and background checks that are typically performed for new residents and tenants.

These guests can cause potentially serious nuisance, security and liability issues for associations, which are now beefing up their monitoring and enforcement policies to help eliminate these rentals. Many are developing and implementing new registration forms for guests and tenants along with written assurances and non-compensation statements indicating that they are not paying for their stays.

In addition to these and other measures, a number of new service providers have now sprouted up to help associations and other landlords to monitor and detect listings for rentals of their properties in all of the leading home sharing websites as well as Craigslist. These include STRMonitor, BNBShield,, and

These service providers use automated and proprietary search applications and algorithms to find and report listings in their clients’ communities and properties. Once the listings are identified, some offer additional investigation and enforcement services to help associations and landlords take the necessary steps in order to stop the rentals from taking place.

The growth of Airbnb and its competitors in today’s sharing economy appears to have no end in sight. By working with experienced association counsel and utilizing these new rental monitoring and prevention services as necessary, community associations will be able to effectively enforce their rules prohibiting short-term rentals.




Video of Furniture Being Blown Off Balconies at Miami Condo Tower During Recent Thunderstorm Makes Local, National News

By Laura M. Manning-Hudson

In case you missed it, the recent video of patio furniture being blown off of balconies at a downtown Miami condominium went viral and made local and national headlines. It shows what appears to be a significant number of chaise lounges, chairs and cushions flying extremely high into the air over the Miami streets and then plummeting down onto Biscayne Blvd. and Museum Park.

Needless to say, wind-blown debris from high-rises can be extremely dangerous, and this is not the first time that it has happened in Miami. National Weather Service science officer Kevin Scharfenberg, who works at the agency’s Miami office, told the Miami Herald that the last time a storm in the area blew furniture into the air was in March of last year.

In that incident, a glass tabletop was blown from the ninth floor of a building, hitting a maintenance worker who tragically later died at a nearby hospital as a result.

After viewing the recent video, Scharfenberg was quoted in the Miami Herald’s report indicating that he believes winds as high as 70 mph were present at the time the video was shot.

"It was certainly pretty astounding to see because one or two of those lounge chairs got thrown, and they went all the way across the street," he said. "It shows how dangerous it can be."

South Florida is prone to severe tropical thunderstorms that bring extremely strong winds, and these recent incidents and video serve as a reminder of the importance for condominium associations, especially high-rise buildings, to address this issue with their owners and residents. With the help of experienced association counsel and property management, association board members should consider appropriate rules and regulations concerning balconies, patios and terraces, including the placement and storage of patio furniture and other items on those areas, together with communications alerting members and residents of the dangers and potential liability caused by wind-blown debris.

The level of exposure to potential incidents such as these will vary greatly among South Florida condominiums. Association directors should take the property’s level of risk for these incidents into account in determining the measures and communications that should be implemented.

The video can be viewed at




What You Need to Know About the High-Rise Condominium Fire Sprinkler Requirement and Opt-Out Provisions

By Roberto C. Blanch

Many condominium associations are still unaware about an upcoming deadline that requires high-rise condominium towers to have automatic fire sprinkler or Engineered Life Safety Systems in place by December 31, 2019. However, it is imperative that both property managers and boards of directors familiarize themselves with the requirements established in the applicable sections of the Florida Fire Prevention Code (FFPC) in order to avoid having to pay hefty fines for not complying with the law.

The FFPC mandates that all buildings greater than 75 feet in height — measured from the lowest level of fire department access to the floor of the highest occupiable level — be protected throughout by an approved and supervised automatic sprinkler system no later than December 31, 2019, unless the building already has an approved Engineered Life Safety System (ELSS).

Though the Florida law requires an automatic fire sprinkler system or ELSS to be in place by the end of the year, the Florida Condominium Act includes an exception that allows condos the ability to "opt-out" of having to install a complete automatic fire sprinkler system. The act states that should a Florida condominium decide that its best option is to opt-out of the requirement, it must do so by December 31, 2016.

Keep in mind that in order to opt-out, a majority of the total voting interest of the association must vote in favor of doing so at a duly noticed meeting of the membership. However, it should be noted that even if a condominium association successfully opts-out, it may still be required to install an ELSS or take other safety measures as required by the fire department or municipality in which the condominium is located.

Should a condominium association board decide to install a complete automatic fire sprinkler system or should it not attain the majority of the votes needed to opt-out, it must submit permit drawings and apply for the permit by December 31, 2016, in anticipation of having the building fully sprinklered by the December 31, 2019 deadline.

It is imperative that condominium associations prepare themselves for these deadlines. It is likely that an engineer or other qualified expert will have to be retained by the association to inspect the property prior to determining what the best option is for the building. Our firm’s other community association attorneys and I are available to answer any questions from association directors and property managers regarding this requirement.




TV News Report on Orlando HOA Neglecting to Act Against Nuisance Resident

By Michael E. Chapnick

A recent news report by WFTV Channel 9 (ABC) in Orlando focused on the accounts of some of the residents of the Cypress Head at the Enclave gated community in Oviedo indicating that the HOA has neglected to take action against a homeowner whose tenants are creating an extreme nuisance.

A resident is quoted in the report indicating that the HOA has neglected to adequately address the problems being caused by his neighbors, who are University of Central Florida students. He claims that they urinate in his yard, where he has even found discarded condoms, and his photos and videos documenting the large piles of trash and vehicles parked on the sidewalks from their many "wild parties" are included in the report.

The resident indicates that he has attempted to resolve the matter via mediation with the homeowners association to no avail, and he has since received a letter from its attorney indicating that compliance has been met.

The resident’s attorney tells the reporter that they will be filing a lawsuit against the homeowner and the HOA, and judging from his clients’ photos and video showcased in the news report it appears that may have a strong case.

The takeaway from this episode for HOAs is that they would be wise to be very diligent in their efforts to effectively contend with residents who are creating a nuisance for their neighbors. In addition to the prospect of litigation, the HOA in this case was also hit with an extremely negative news report by one of its local TV stations, and such a report can adversely affect the community’s reputation and property values.

The report can be viewed on the station’s website at




Florida Community Associations Should Tread Carefully in Restricting Political Signs

By Laura M. Manning-Hudson

Every four years, as presidential elections heat up, con-dominium and homeowners association communities throughout Florida are faced with the issue of political signs being posted in front yards, on balconies, in windows and on and around the common areas. Association attorneys are often consulted, and most would advise associations to be extremely careful with how they create and enforce restrictions that prohibit political expression.

Most associations’ governing documents include restrictions that prohibit residents from posting signs anywhere on the unit or the property. Political signs, however, give rise to issues of freedom of speech, which is protected by the First Amendment.

The key for associations to remember is that restrictions on freedom of speech under the First Amendment apply only in governmental or public settings, so community associations, as private non-governmental entities, are allowed to restrict signage, including political signs, in accordance with their corresponding state law. Some states have enacted legislation specifically addressing the issue, but Florida has not and neither has the state’s Supreme Court addressed the issue specifically.

As a result, Florida’s associations are able to enact and/or enforce rules and restrictions governing the display of political signs by their members, but they are cautioned to do so very judiciously and under the watchful guidance of highly experienced association legal counsel.

The process should always begin by reviewing the association’s governing documents to understand the community’s current parameters concerning the posting of signs. If the board and its legal counsel determine that modifications to enhance the existing rules under the community’s governing documents are in order, it is advisable that they undertake the membership voting process for amending the documents with the new regulations rather than adopting the rule as an action of the board.

Boards should also consider adopting reasonable measures, such as the permissible sizes and locations for the signs, how long before or after an election they may be posted, and safety issues including vehicle lines of sight.

Once the regulations are established, enforcement must be fair and consistent. Any partiality by the association in its enforcement actions involving political signs could expose it to legal liability.

Associations should also bear in mind that the election season is relatively short-lived, so any extraordinary efforts that they may take to address this issue may end up only having a minimal impact. By keeping all of these considerations in perspective and working with highly qualified and experienced legal counsel, Florida associations can effectively implement and enforce rules and restrictions governing the displays of political signs in their communities.




New Ruling Strengthens Association’s Ability to Demand Homeowners Maintain Appearance of Their Residence

By Michael E. Chapnick

For most homeowners association communities, one of the primary functions for the associations in their enforcement of the community’s declaration is ensuring that all of the homeowners are maintaining the exterior appearance of their property. Poorly maintained homes detract from a community’s appeal and diminish its property values, and HOAs are charged with conducting all of the necessary enforcement actions in order to consistently and fairly ensure that all of the homeowners in their community are doing their part.

A ruling earlier this month by the Fourth District Court of Appeal reinforced an HOA’s ability to have its homeowners remedy a violation of the community’s declaration involving the appearance of their home.

In the case of Hibbs Grove Plantation Homeowners Association v. Avraham Aviv and Helen Aviv, the HOA notified the Avivs that their home was not in compliance with the community’s declaration due to their failure to remove mold/mildew from the exterior of their residence. The notice referenced the declaration’s caveat that "exterior surfaces and/or pavement, including, but not limited to, walks and drives, shall be pressure treated within thirty (30) days of notice by the ACC [Architectural Control Committee]."

The Avivs responded by hiring a company to pressure clean the exterior of their house and supplied the HOA with written proof that the job had been completed, but the association went on to file for injunctive relief.

The trial court then granted the homeowners’ motion for final summary judgment, finding that they fully complied with the association’s demand to pressure clean the exterior of their home. In its filing in opposition to the summary judgment, the association emphasized the deposition testimony of the Avivs in which they acknowledged that after the pressure cleaning some "stains" remained. The association argued that "the relief sought by way of injunction in this case has not been obtained since the marks and/or the stains remained after the filing of the complaint and/or continue to exist."

In its appeal before the Fourth DCA, the association argued that the trial court erred because it misconstrued the nature of the dispute and the relief which was sought. The appellate panel concurred, finding that the complaint clearly established that the Avivs were on notice that the stains on their exterior walls constituted a violation. It concluded that the fact that "the Association sought to compel Homeowners to pressure clean the exterior walls in its prayer for relief did not obviate the need to remediate the staining problem if pressure cleaning did not cure the violation."

While the association ultimately prevailed in this case, it may have been able to spare itself legal, court and administrative costs stemming from the appeal if it had used clearer language in its enforcement notice and communications with the homeowners. It should have clearly stated that the complete removal of the stains was required, and pressure cleaning was recommended but additional measures would be necessary if the stains persisted.

Associations should work very closely with qualified and experienced legal counsel for all of their communications to unit owners involving violations of their community’s declaration.




Ruling Reminds Associations of Significant

Consequences Resulting from Failure to 

Maintain Common Elements

By Roberto C. Blanch

Maintaining the common elements and areas is one of the primary functions and responsibilities of community associations. Last year’s ruling by the Seventh Judicial Circuit Court’s Appellate Division illustrates the potential consequences that may arise in the event an association does not adequately address complaints by unit owners regarding nuisances resulting from the improper maintenance of the common elements.

In the case of Harbor View Daytona Condominium Association v. Katherine Strachan and John F. Strachan, the Strachans had complained to the association for several years of drainage back-flow plumbing problems causing black, soapy water to back up into the toilets, showers and sinks of their first-floor unit.

One of the plumbers who performed work at the condominium building during its original construction testified in depositions that when Harbor View converted from rental apartments to a condominium, washing machines were added to the individual units. While most of these washing machines connect to a drainpipe dedicated exclusively to them, the washing machines on the eighth floor penthouse level drain into pipes to which kitchen sinks from lower units are also connected.

In this particular case, the washing machine from unit 808 is the only one that drains into the kitchen sink line that serves the Strachans’ unit. According to the plumber’s testimony, Harbor View’s plumbing system was not designed to accommodate new high-efficiency washing machines that discharge water at a higher rate of speed than older machines, and in his opinion, unit 808’s high-efficiency washing machine is causing the plumbing problem.

The plumber recommended that the association should either hire a mechanical engineer to evaluate the problem and make recommendations, re-pipe unit 808’s washing machine drainpipe and run it where it would tie into the sewer line, or install a laundry tub in unit 808 and have the washing machine drain into the laundry tub to slow down the water enough to prevent the backflow of water into unit 111.

The association had taken no apparent action to resolve the problem. The lower court entered an order granting summary judgment against the association, finding that the drainage problem constituted a nuisance that it had a duty to abate under Florida law and the community’s own declaration, further ordering the association "to diligently and permanently abate the plumbing nuisance harming Unit 111."

The lower court’s ruling was affirmed by the appellate panel, which concluded that the association failed to commit itself to finding a solution to the backups by following the plumber’s recommendations, and the Strachans had demonstrated the existence of a problem, the responsibility of the association to maintain the kitchen sink line, and the continuation of the backups over a period of years.

This ruling should serve to remind community associations about the consequences which they may face when they fail to comply with their responsibility to maintain and repair common elements, especially in cases in which the common elements are causing a nuisance to a unit owner. Community associations are reminded that they should seek the advice of qualified and experienced community association legal counsel when confronted with circumstances in which unit owners are demanding that certain steps be taken by the association with regard to the common elements.




A Review of the High-Rise Condominium Fire Sprinkler Retrofit Requirement and Opt-Out Provisions

By Roberto C. Blanch

Our firm’s other community association attorneys and I often receive questions from association members, directors and managers about the Florida law requiring that high-rise condominium towers must have automatic fire sprinkler or Engineered Life Safety systems in place by the end of 2019.

In order to answer some of the most often asked questions and provide a thorough overview of the requirements and opt-out provisions, partner Gary M. Mars with our firm’s Coral Gables office has developed a simple and brief backgrounder on the Florida Fire Prevention Code (FFPC) that is now posted in our firm’s website.

The three-page document explains that the FFPC defines "high-rise building" to mean a building that is greater than 75 feet in height, with the height being measured from the lowest level of fire department access to the floor of the highest occupiable level. It mandates that all such buildings other than those with an approved Engineered Life Safety System (ELSS) must be protected throughout by an approved and supervised automatic sprinkler system no later than December 31, 2019.

The primer goes on to discuss how the Florida Condominium Act includes an exception that allows condominiums to avoid having to install a complete automatic fire sprinkler system. It provides Florida condominiums with the ability to "opt-out" if a majority of the total voting interest of the association votes in favor of doing so at a duly called and noticed meeting of the membership.

If a Florida condominium wishes to "opt-out" it must do so by December 31, 2016. However, even if a condominium association successfully opts-out, the association may still be required to install an ELSS or take other safety measures as required by the municipality where the condominium is located.

Gary’s four-page overview is available in the "Published Works" page under the News section of our firm website at or via this direct link:




CAI Encourages Associations to File Complaints with the Consumer Financial Protection Bureau for "Zombie Foreclosures"

By Laura M. Manning-Hudson

The Community Associations Institute (CAI), the largest organization representing the interests of community associations in the country, has recently created an online guide to encourage and assist associations with the filing of complaints against mortgage lenders and servicers with the federal Consumer Financial Protection Bureau (CFPB) for "zombie foreclosures." Zombie foreclosures is the term given to those seemingly never-ending bank foreclosures that just sit in the judicial system with little to no activity, barely remaining open except for nominal filings by the attorney, prejudicing the rights of community associations and their homeowners throughout Florida.

The CFPB was established in 2010 to protect consumers from harmful financial products, and it is now responsible for enforcing most federal financial consumer protection laws. In addition to its oversight of checking accounts, credit cards, payday loans and other financial products, the federal agency also has significant authority over federal housing policy, mortgage lending standards and the home buying process.

In response to the continued problem of prolonged foreclosures that are not being processed in a timely manner, causing many properties to remain in limbo for months or even years, CAI is now encouraging associations to file complaints against the lenders and loan servicers behind these so-called zombie foreclosures with the CFPB. According to RealtyTrac, one out of every five homes currently in foreclosure is a zombie property, and in certain metro areas in states such as Florida and Nevada which were hit especially hard during the housing crisis, that number can be as high as one out of three. Mortgage lenders and servicers use these delay tactics in order to avoid paying association assessments and wait for local real estate markets to make complete recoveries.

CAI created an online guide to provide associations with background information and step-by-step instructions for the filing of these complaints.

To file the complaint, the respondent will be required to provide the address of the property in question and their contact information. In addition, CAI is requesting that complainants also send it an email at to notify the organization of the complaint.

The organization is encouraging complainants to describe how the lender or servicer’s delayed foreclosure action has negatively affected their community association. As residences sit vacant for years, condominium associations and HOAs see their community property values decline because they are unable to collect association assessments and the units fall into disrepair – both inside and out – sometimes causing damage to other units. Meanwhile, the other owners in the community are forced to pay higher assessments in order to keep the budget balanced and account for the bad debt caused by the vacant homes that are just sitting and rotting.

To learn more and use the step-by-step guide for the filing of a complaint, use the link




Roberto Blanch Authors Article in Miami Herald Op-Ed Page:

"Florida Must Improve Policing of Condo Fraud"

By Laura M. Manning-Hudson

Our firm and I would like to congratulate my fellow Condo News "Community Association Counselor" columnist Roberto Blanch, who wrote an article that appears in the op-ed "Opinions" page of the March 22nd edition of the Miami Herald. Roberto’s article was pegged to the ongoing investigative series by el Nuevo Herald on condominium association fraud in South Florida that is also being featured in the Herald. The article, which was titled "Florida Must Improve Policing of Condo Fraud," focuses on the need for changes in the state law enforcement and government’s collective mindset towards combating condominium association fraud.

Roberto’s article reads:

An investigative report in el Nuevo Herald chronicled the growing problem of election fraud at South Florida condominium associations. Based on the episodes of possible fraud uncovered by the reporters and the growing number of complaints by local condo associations, it has become apparent that it’s time to put teeth into Florida’s laws and enforcement actions addressing this type of fraud.

The report uncovered that at least 84 signatures were forged in fraudulent ballots submitted in the annual board member election last year at The Beach Club at Fontainebleau Park condominium in northwest Miami-Dade. It also describes how the election at the Los Sueños condo in Hialeah was anything but a dream when it resulted in an unprecedented voter turnout of 115 percent after the final vote tally exceeded the total voting pool.

The boards of directors control the purse strings for the communities they govern, and many communities have annual budgets of multiple millions of dollars that are used for a variety of lucrative service contracts. As such, condo association boards make for appealing targets for fraudsters who conspire to take over their control via annual elections.

In a recent case in Las Vegas, a U.S. Justice Department investigation revealed that 11 associations were defrauded of tens of millions of dollars in a board of directors takeover scheme from 2003 to 2009. Forty-one defendants were convicted of getting their straw unit buyers elected to the associations’ boards through tactics involving forgery, bribery, ballot stuffing and dirty tricks. The conspirators were found to have rigged the associations’ elections by traveling to Mexico to print phony ballots, using the master key at a condominium complex in order to remove ballots from mailboxes, and retrieving discarded ballots from condo dumpsters.

South Florida’s propensity for high-end luxury condos owned by investors who primarily reside elsewhere and do not participate in their annual board member elections make the area’s thousands of associations with massive operating budgets ideal targets for takeover schemes.

Even if special attention is given by association members to help ensure that all of the applicable laws are followed, it has become impossible to prevent the most brazen and savvy fraudsters from prevailing in their takeover schemes . . .

Roberto’s complete article is available in our blog post from March 22nd in our firm’s community association law blog at and in the "Opinions – Op-ed" section of the Herald’s website at On behalf of all of us at SRHL, I am very pleased to congratulate my co-columnist Roberto for sharing his insights into this important topic for South Florida community associations with the readers of the Herald.




Appellate Ruling Illustrates Importance of Proper Service of Process and Procedural Steps in Foreclosure Cases

By Roberto C. Blanch

Associations have been counseled for the last sev-eral years to move quickly to foreclose on units in cases of prolonged lender foreclosures so that they could utilize these residences to reap rental income while the bank cases languish. However, a recent ruling by the Fourth District Court of Appeal serves as a reminder of the pivotal importance of properly undertaking required procedural steps and executing service of process on all of the owners and other defendants in foreclosure cases prior to moving on to trials and judgments.

The appellate panel in the case of Frank Reilly v. U.S. Bank National Association found in favor of the defendant Reilly and reversed the lower court’s final judgment of foreclosure. It found that the case was not yet "at issue," meaning ready for disposition, when the Broward circuit court issued a final judgment for the lender because the lender had not obtained a default against Reilly nor had Reilly filed an answer. Accordingly, the final judgment as to Reilly was reversed, and the case was sent back to the circuit court for further proceedings.

The appellate court also confirmed that Reilly must be allowed to raise his service of process challenges against the lender because they had not been considered by the circuit court. His service of process challenge stemmed from the lender’s claims that it attempted to find him but he was dodging its process servers, so it served him by publication. Had these issues simply been presented to the circuit court in the original proceedings, the challenge by Reilly and associated delays may have been avoided.

The lesson here for associations and lenders pursuing foreclosure cases is that their judgments can be completely undone if they fail to undertake required procedural steps or cut corners in the servicing of process for owners or other defendants in these lawsuits. Associations must rely on qualified and highly experienced process servers to properly service foreclosure lawsuits to owners, who oftentimes do everything in their power to evade them and avoid being served with the suit. In some cases, this may require retaining the process servers to stake out an owner at their work or residence, and it may take several attempts before the process servers are able to serve a defendant with the lawsuit as prescribed under Florida law.

These expenses should be considered part of the cost of doing business in the prosecution of foreclosure actions by associations, which should take note of this and other similar appellate rulings and avoid cursory and unsuccessful service processing in favor of service by publication. Otherwise, they are risking the very real possibility of increased legal and administrative costs by having their foreclosure rulings overturned and remanded for further proceedings.




Arbitration Ruling Illustrates Associations Cannot Impose Certain Rules, Prerequisites for Owners to Access Official Records

By Laura M. Manning-Hudson

A recent arbitration decision involving an owner’s request to inspect a condominium’s official records should serve as a reminder to all Florida community associations that they cannot impose additional rules outside of the scope of what the statute allows in order to deny or circumvent an owner’s request to see records.

The arbitration case of August E. Hawkins v. Points West Condominium Association involved a denial by the association of the owner’s request to access the current roster and contact information for all of the unit owners. The association based its denial on a rule that was adopted by its board of directors stating that all association fees and debts must be current in order for unit owners to be granted access to its official records. The association claimed that Hawkins owed $600 in attorney fees to the association for its prior issuance of a demand letter.

The Hawkins arbitrator found that Florida law provides that associations "may adopt reasonable rules regarding the frequency, time, location, notice and manner of record inspections and copying" of official records, but that it may not create any other category of rules or prerequisites that owners must meet in order to gain access to the official records. The ruling concludes that there is no language in the Condominium Act which authorizes an association to institute debt collection procedures which interfere with an owner’s entitlement to access to official records. The arbitrator also found the association’s rule to be null and void and unenforceable, and the association’s failure to allow access to the records to be a willful violation of the law. The arbitrator concluded that the association must grant access to the records within 10 days of its decision and pay the unit owner statutory damages in the amount of $500 for the willful violation. In addition, Florida law provides that the prevailing party in these proceedings is entitled to have the losing party pay reasonable attorney’s fees and costs.

As such, associations that promulgate rules requiring unit owners to sign releases, pay fees, or comply with any other rule other than what is statutorily authorized before the owner may see records should be cognizant that they could be willfully violating the statute and subjecting the association to the payment of monetary damages and awards of attorney’s fees and costs if they are challenged.

Associations that seek to impose any sort of rule, regulation or prerequisite involving records requests by unit owners should bear this decision in mind and seek the guidance of qualified legal counsel.




Ruling Reminds Associations to Look to Their Declarations in Foreclosure Cases Involving Pre-July 2008 Mortgages

By Roberto C. Blanch

In Florida, not all foreclosure cases are the same for the state’s more than 47,000 community associations, as a recent ruling by the Fourth District Court of Appeal illustrated. The ruling served as a reminder that community associations must look to their own declaration and governing documents in cases involving the foreclosure of mortgages that were issued prior to July 1, 2008.

The ruling reversed the lower court’s decision and found that a lien by the homeowners association for the Pipers Landing community in Palm City, Florida, did not have priority over a mortgage issued by U.S. Bank. The appellate panel based its decision on the fact that the HOA’s declaration did not include the necessary language specifying that its liens take priority over mortgage liens and relate back to the date of the filing of the community’s declaration.

For mortgages such as the one in the case of U.S. Bank National Association v. Grant et al. that were issued prior to amendments to the Florida Condominium and HOA Acts which took effect on July 1, 2008, first mortgage liens are superior to association assessment liens unless the association’s declaration specifically states otherwise.

The Fourth DCA based its opinion on the ruling by the Supreme Court of Florida in Holly Lake Association v. Federal National Mortgage Association in 1995. That ruling held that "in order for a claim of lien recorded pursuant to a declaration of covenants to have priority over an intervening recorded mortgage, the declaration must contain specific language indicating that the lien relates back to the date of the filing of the declaration or that it otherwise takes priority over intervening mortgages."

Because Pipers Landing’s declaration did not contain any such language giving the association’s lien priority over that of the lender, the appellate panel reversed the lower court’s ruling.

Obviously, this ruling deals a blow to associations that may wish to attempt to assert lien priority in cases involving the foreclosure of older mortgages. The court’s opinion also reinforces the state law enacted in 2008 indicating that association liens relate back to the declaration except for first mortgage lenders.

However, the ruling does serve as an important reminder for associations and their legal counsel to double-check the language in an association’s original declaration for cases involving the foreclosure of mortgages issued prior to July of 2008, as it is possible that the declaration may contain the necessary language as required by the Holly Lake ruling for the lien to be found to be superior over the lender’s mortgage lien.




Turkeys Really Do Fly – In Planes!

By Laura M. Manning-Hudson

The myth that turkeys can’t fly was proven untrue after it was discovered that turkeys can actually soar up to 55 feet in the air. For longer flights, however, they fly like the rest of us – in coach or business class. Or at least emotional support turkeys do, anyway.

Media outlets across the country recently covered a story on a turkey that ruffled quite a few feathers on a Delta flight – and it wasn’t because passengers caught a glimpse of the flying fowl from their windows. The turkey – brought on the flight as a regular passenger with its own assigned seat and all – was allowed on the flight as an emotional support animal. The traveler who owned the bird was able to provide the airline with the proper documentation required, forcing Delta’s hand into printing a boarding pass for the poultry. But when is enough, enough?

The honest answer: who knows? Lately, it seems as if the use of emotional support animals is becoming more widespread. Community associations – which are commonly faced with this issue – have been fighting for stricter standards for years. In fact, communities with pet restrictions that have passionately fought against accommodating a domestic cat and dog are now having to battle against allowing animals such as pigs – and even snakes – from entering their communities. Unfortunately, the real crux of the matter is that as people get more and more creative with their requests, the law seems to stay silent on the issue.

The important thing to keep in mind is that there are certain steps community associations can take to evaluate the service/emotional support animal request to ensure its legitimacy. While we know that some residents will continue to thwart the system with bogus claims (which really is a disservice to those residents with legitimate disabilities), at least the association can take steps to protect itself and its members from claims by other residents of non-enforcement, selective enforcement and estoppel.

Remember, there is certain information an association can and cannot ask for, and wrongfully denying a request for a reasonable accommodation may result in a costly and protracted legal battle. When in doubt, seek the guidance of qualified legal counsel to guide you through the evaluation process in order to make sure you aren’t exposing your community to any liability – even if the end result means having a turkey as a neighbor.



Ruling Reminds Associations to Look to Their Declarations in Foreclosure Cases Involving Pre-July 2008 Mortgages

By Roberto C. Blanch

In Florida, not all foreclosure cases are the same for the state’s more than 47,000 community associations, as a recent ruling by the Fourth District Court of Appeal illustrated. The ruling served as a reminder that community associations must look to their own declaration and governing documents in cases involving the foreclosure of mortgages that were issued prior to July 1, 2008.

The ruling reversed the lower court’s decision and found that a lien by the homeowners association for the Pipers Landing community in Palm City, Florida, did not have priority over a mortgage issued by U.S. Bank. The appellate panel based its decision on the fact that the HOA’s declaration did not include the necessary language specifying that its liens take priority over mortgage liens and relate back to the date of the filing of the community’s declaration.

For mortgages such as the one in the case of U.S. Bank National Association v. Grant et al. that were issued prior to amendments to the Florida Condominium and HOA Acts which took effect on July 1, 2008, first mortgage liens are superior to association assessment liens unless the association’s declaration specifically states otherwise.

The Fourth DCA based its opinion on the ruling by the Supreme Court of Florida in Holly Lake Association v. Federal National Mortgage Association in 1995. That ruling held that "in order for a claim of lien recorded pursuant to a declaration of covenants to have priority over an intervening recorded mortgage, the declaration must contain specific language indicating that the lien relates back to the date of the filing of the declaration or that it otherwise takes priority over intervening mortgages."

Because Pipers Landing’s declaration did not contain any such language giving the association’s lien priority over that of the lender, the appellate panel reversed the lower court’s ruling.

Obviously, this ruling deals a blow to associations that may wish to attempt to assert lien priority in cases involving the foreclosure of older mortgages. The court’s opinion also reinforces the state law enacted in 2008 indicating that association liens relate back to the declaration except for first mortgage lenders.

However, the ruling does serve as an important reminder for associations and their legal counsel to double-check the language in an association’s original declaration for cases involving the foreclosure of mortgages issued prior to July of 2008, as it is possible that the declaration may contain the necessary language as required by the Holly Lake ruling for the lien to be found to be superior over the lender’s mortgage lien.




Important Considerations for Community Associations Involving Construction, Remodeling Contracts

By Laura M. Manning-Hudson

For community associations, construction contracts often represent some of the costliest expenses that they will ever have. Unfortunately, many boards decide to enter into these contracts without consulting qualified association counsel in advance, which oftentimes results in shoddy workmanship and delays – and no recourse for the association.

Condominium associations are required to obtain competitive bids for projects that exceed five percent of their total annual budget, including reserves. For HOAs, the threshold is 10 percent of the total annual budget with reserves. Prior to bidding, contractors should be asked to submit written bids in response to requests for bids from the association that may include specifications and drawings prepared by a licensed engineer or other design professional. Upon receipt of bids, the association should check the references at other properties where the contractor has performed similar projects.

Once a contractor is selected, the association’s attorney should obtain the correct legal name of the selected contractor and verify that the contractor is properly licensed to perform the work. The attorney can also search for any complaints filed against the contractor.

It is also critical for associations to require that the contractor maintain proper insurance coverage and limits, including worker’s compensation and commercial general liability insurance. The association should be named on the certificates of insurance reflecting that it is an additional insured and not merely a certificate holder. Both the attorney and the association’s insurance professionals may verify that the proper insurance provisions are included in the contract and the contractor has all of the proper coverages.

The contractor should also produce all of the necessary building department permits for the project to the association and its attorney. Under no circumstances should work be performed without having secured the proper permits.

In addition, to comply with the construction lien laws, the association must file a Notice of Commencement for any job over $2,500.

The payment schedule provided in the contract should be commensurate with the percentage of the work that is completed, and should also include a retainage (an amount held back) for each payment until the end of the job. The contractor should provide releases of liens and progress payment affidavits for all partial payments received, as well as releases from any subcontractors and suppliers who performed work on the contractor’s behalf. Before the final payment is made, the association’s engineer or design professional should conduct an inspection to verify that all of the work has been completed and all of the building permits have been closed.

Other aspects of the contract that associations should review with their attorneys are the possibility of obtaining payment and performance bonds, the use of indemnity clauses to protect the association from liability, and the use of termination and attorney’s fees provisions. With the proper due diligence by qualified legal counsel and professionals, associations can avoid costly mistakes and omissions for all of their construction and remodeling projects.




Important Considerations for Community Association Foreclosures

By Roberto C. Blanch

Completions of foreclosures by community associations against their delinquent unit owners were virtually unheard of 10 years ago, as lenders would almost always move quickly with their own foreclosures against these owners, and their first-mortgage liens are superior to those of associations. However, today the practice has become the prudent approach for cases involving lenders whose mortgage foreclosure cases seem to be placed into a holding pattern in hopes of the housing market making a complete recovery.

Many community association attorneys now counsel their clients to complete their own foreclosure actions in certain cases in advance of the banks for many reasons. One such reason includes enabling associations to acquire title to the units in foreclosure and subsequently rent the residences before the lenders’ foreclosures are finalized. With so many lenders taking years to complete their foreclosures, the revenues from these rentals have generated cash flow for associations and helped to relieve a great deal of the financial strains that some associations have faced.

Last year, the state legislature added some clarity to the law governing a foreclosing lender’s liabilities to associations for the prior owners’ association debts. The banks argued in a number of cases that associations which foreclose in advance of mortgage lenders have effectively put themselves in the position of the prior owner, which is not entitled to collect any past-due fees. An amendment to the law fixed this loophole, and now lenders are still held liable for the safe-harbor liability caps to associations that have completed their own foreclosures in advance of the lenders’ cases.

The question for associations facing lender foreclosure cases that appear to be dragging is: When should an association pull the trigger and foreclose its outstanding lien held on the property for unpaid past-due assessments? The answer requires qualified legal counsel to carefully review the case along with the property appraiser website, tax collector website, court dockets and official records. Considerations that always have to be taken into account include the amount that is owed under the first mortgage, if there is also a second mortgage on the property, the exact status of the mortgage foreclosure case, and the status of the tax records on the property.

In addition to these universal considerations, some cases may also include issues involving the deterioration of the unit itself. Associations will need to carefully consider their options involving residences that will require major renovations in order to prepare them for rental. This is very important, as associations cannot rely on third parties to purchase these properties via the foreclosure sales but rather they must prepare to take title to the units.

Another important aspect of these prolonged foreclosure cases is that they can set the tone for associations that wish to take a firm and uniform stance on their collections and payment-enforcement efforts. Sending a demand letter and recording a claim of lien but going no further – even when a foreclosure that should take only a few months to complete begins to approach the one-year mark – is probably not the ideal precedent for associations to set.

While it appears that lenders are now beginning to move their mortgage foreclosures a bit quicker, oftentimes they are still moving too slowly for associations that are being burdened by outstanding unpaid assessments. Together with qualified legal counsel, associations should carefully weigh all of the above-mentioned matters and considerations to determine whether to move forward with their own foreclosure actions in advance of lenders or to wait to enforce their liens.




Is Your Condo Going to the Dogs???

By Laura M. Manning-Hudson

If your condominium’s governing documents allow dogs and renters, my bet is there’s a large number of both in your community. We get a lot of questions from condominium boards asking how they can reduce the number of renters and dogs in their buildings because – in the words of one manager: "Our building is going to the dogs!"

Depending on the language in your governing documents, you may have to keep living with the dogs unless or until your membership votes to amend them. If your association’s declaration does do not expressly restrict tenants from having pets, then an amendment will be necessary since a rule cannot conflict with a recorded restriction.

Although the association is authorized to adopt and enforce reasonable rules and regulations governing the operation and use of the condominium property, under Florida law in order for such rules to be valid and enforceable they must not contradict a recorded restriction in the association’s governing documents. In general, provisions in the declaration take precedence over any conflicting language in the rules.

While the Division of Condominiums has upheld and enforced association rules that specifically differentiate between unit owners and tenants, in such cases the declaration contained express provisions to substantiate the rule. Specifically, the Division upheld a condominium association’s rule restricting tenants from maintaining pets on the premises but allowing pet ownership by unit owners. In Grove Isle Condominium Association, Inc. v. Levy, et al, the association’s declaration provided that "[n]o pets may be kept on the condominium property except for usual and ordinary domesticated pets weighing less than twenty-five (25) pounds which may be kept by unit owners . . ." Based upon that provision, the arbitrator held that the board-adopted rule prohibiting tenants from maintaining pets was valid and consistent with the association’s declaration, which specifically granted unit owners the right to own pets – but was silent on the issue of tenants’ rights regarding pet ownership.

Similarly, in the arbitration case of Quatraine Condominium II Association v. Bradley, the association’s declaration provided that original owners of the condominium were permitted to maintain pets in the condominium residences. The board adopted a rule which provided that lessees were not allowed to have any pets. The arbitrator held that differential treatment between owners and renters was valid.

As such, we recommend that before your board starts promulgating rules that could be unenforceable and, if challenged, subject your condominium to expensive legal fees, check first with qualified legal counsel with regard to the options in your community.




Supreme Court Ruling Applies

Additional Discrimination Standard for Community Associations

By Roberto C. Blanch

The federal Fair Housing Act (FHA) was enacted in 1968 to protect homebuyers and renters from discrimination by sellers and landlords. Ever since, community associations have heeded its prohibitions against discrimination based on race, color, religion, sex, national origin, disability, or familial status by working to ensure that their policies and board decisions do not result in any sort of discrimination against these classes.

Recently, the Supreme Court of the United States ruled on the case of the Texas Department of Housing & Community Affairs v. The Inclusive Communities Project, Inc. over the issue of whether the legal theory of "disparate impact" should be applied under the FHA.

Disparate impact allows a plaintiff to prove that they were discriminated against if they are able to demonstrate to the court that a rule, decision or action has a "disparate impact" on a protected class. Unlike all of the other standards for discrimination that require for a plaintiff to prove an intention to discriminate by a defendant, disparate impact has no such requirement.

The Supreme Court ruled that the Texas Department of Housing violated the FHA under the theory of disparate impact, but it also held that a plaintiff cannot prove disparate impact simply by demonstrating a mere statistical disparity. The rules and practices in question must be "artificial, arbitrary, and unnecessary barriers" in order to be found to be discriminatory under disparate impact.

The ruling also enables a defendant to offer a legitimate justification for its action, as they have tried to do in other disparate impact cases in the past. If a defendant argues that it had a legitimate business justification for its rule or action, then the plaintiff would be required to show that an "available alternative . . . practice that has less disparate impact and serves the legitimate needs" is available. The ruling also cautions the lower courts that remedial orders must focus on the elimination of any practices found to be discriminatory on the basis of disparate impact rather than on penalties or punitive sanctions.

For community associations, this decision sends a clear message that they need to avoid rules and practices that may have a disparate impact on any of the protected classes under the FHA. For example, association policies to prohibit HUD-subsidized rentals or to require a minimum down-payment percentage for buyers may be attacked for having a disparate impact on the poor, a high percentage of which are minorities.

The end result of this decision is that challengers to association rules and practices now have a new basis to litigate, one which does not require them to prove any discriminatory intent. Associations should work closely with qualified legal counsel to review their rules and practices in order to address the possibility of changes to any that may have a disparate impact on a protected class under the FHA and is not necessary to achieve a valid interest.




Your Association Is a Business – Run It Like One

By Laura M. Manning-Hudson

Running any type of business is no easy feat, and that is especially true for businesses that are operated by volunteer leadership. Nonetheless, by taking a business approach to running a community association, officers and board members can help to ensure that they have a successful operation.

A vital yet often overlooked fact that association leaders face is that their association is a corporation – with officers and directors who are elected by its membership to govern and run the business. Albeit categorized under the non-profit sector, associations are still responsible for preserving the association’s budgets and bank accounts. They are also accountable for maintaining and hiring vendors, management, and staff, increasing (or at least preserving) property values, and sustaining the community’s quality of life.

Since the operation of a community association is the operation of a business, cultivating a business plan to help elected officers and directors properly run their "business" might serve a more useful purpose than most people think.

Foster Great Leaders

Elected officers and board members have a fiduciary duty to prudently serve their community, while always acting in the best interests of their organization. This means that however board members decide to act on behalf of their association, they must make sure they are doing so in good faith and with due care.

Ultimately, this means that whoever is elected to undertake this role must never place their personal wants and desires over those of the community as a whole. They must comprehend and uphold the association’s articles of incorporation, bylaws, declaration, and rules and regulations, and must always make sure they are acting within the scope of their authority.

This leads to the importance of customer service. In any business, the customer service department plays a pivotal role in the reputation of the corporation. While board members should always enforce their association’s rules and should abide by them as well, they also need to take care of their "customers."

As such, consistency is the key. There should never be any inclination of "favoritism" when enforcing these rules. Initiatives such as publishing newsletters, sending emails and posting policies around the community’s common areas can serve as friendly reminders for those residents who are new to the community, or for owners who may have simply forgotten the rules. The golden rule that every successful business follows is: Treat others as you would like to be treated. When enforcing restrictions, make sure to stay polite. It is, after all, a business.

Like other diligent business executives, board members must also invest time in learning about legal, financial and other community association-related topics that might help them evolve into effective leaders. Those who volunteer to serve should always engage in continuous learning – whether that means collecting newsletters, attending seminars or participating in LinkedIn discussions. Board members should never stop seeking information that can assist them in doing their jobs properly.

Stay Fiscally Responsible

Every business needs money to survive – as does every association. Community associations should always be financially responsible and act within their means.

Carrying the proper insurance policies is an extremely important factor for the financial well-being of any association.

Due diligence and research of contractors prior to commencing repair projects can also help associations to be prudent. This does not mean cutting corners. Research can prevent associations from overpaying for shoddy construction work and avert costly payments for low-quality materials.

All businesses, including community associations, must develop a system of checks and balances within their organization in an effort to protect their corporation from becoming victims of fraud. Community associations should work with their legal counsel and accountants to set-up precautionary measures that will help keep the association’s money secure. Maintaining adequate reserves, accurately understanding the association’s expenses (i.e., staffing, landscaper fees, etc.), and knowing which incidentals are covered by the association versus those covered by the owners can also help in ensuring an association stays economically viable.

Establish relationships with quality vendors and professionals. Dependable vendors allow board members and property managers to focus their attention on time-sensitive matters, rather than having to micromanage every vendor that drives through their gates. Having a good rapport with CPAs, attorneys, management companies and other qualified professionals who serve the community association industry can save board members when they need to turn to an expert for advice. Knowledgeable and dependable resources are assets every association should try to cultivate.

All successful businesses rely on business plans and models to keep their corporations targeted on their respective goals. Treat your association as the business that it is, and develop and follow systems and procedures for operating that business. You will find that your association will thrive, and your "customers" will be happier.




Plan Early for Successful Annual Meeting, Election

The year-end holiday season is also the season in which most community associations celebrate their annual meetings and elections. But no matter when your community association celebrates its annual meeting and election, it is important to begin the planning and organizing process well in advance in order to help ensure the best possible outcome.

The work should begin with a thorough review of the roster of current owners for each of the residences. Ideally, it is best to organize the roster in numerical order by the unit numbers or addresses in order to facilitate the registration and ballot verification process.

While a title search of the county public records deed database is the most accurate means to verify ownership of the residences, a more economical approach would be to turn to the county’s property appraiser’s office to verify ownership. Once obtained, the records should be organized in a binder, together with copies of the deeds in the same order as the roster or sign-in sheet. Using dividers to separate each floor/street is also advisable, as it may help to facilitate the verification of ownership on the day of the meeting or election. For those communities that require voting certificates to be submitted on behalf of units owned by corporations, partnerships, other entities or by more than one individual (including for units owned by a married couple), it is important for the board or management to ensure that binders are well-organized with copies of the voting certificates that have been submitted to the association in the past – as such forms are typically valid until revoked, modified or rescinded and the votes for those units cannot be counted unless the association is in possession of the forms.

Proxies that are received prior to the meeting should be verified in order to help ensure that they are dated and signed by the owner or other qualified voting member. Verified proxies should be logged in on the sign-in sheet for the meeting, and a note should be included on the sheet indicating those who have been designated as the proxies for corresponding units in order to help ensure that the designated proxies sign-in on behalf of the appropriate residences. Proxies that are found to be questionable or incomplete during the validation process should be set aside for the association attorney to review, and the valid proxies should be organized in a folder in the same order as the sign-in sheet for reference at the time of the meeting.

For those associations that suspend the voting rights of owners delinquent in the payment of monetary obligations, well-documented records should be maintained to confirm that the voting rights were properly suspended and the association’s accounting records should be updated to ensure accurate records of the amounts owed by such owners.

In addition to closely adhering to all of the statutory notice requirements for the meeting, associations would be well advised to go beyond those minimum requirements in order to help maximize attendance and participation in the election. Telephone calls, emails, and door-to-door visits by the management staff are encouraged, as these efforts will help to ensure that all of the owners are made aware of the date and the importance of their making every effort to participate by voting in the election.

While applicable statutes may provide for the posting of the meeting notice at one designated location, some communities opt to post notices in a fairly prolific manner in order to broaden the opportunities for all of the owners to view it. For those communities, in addition to posting notices in the clubhouse and recreation rooms, communities should also consider posting them in the mail room, elevators, fitness center and any other appropriate spots through which the residents typically pass.

Another important strategy to maximize the attendance and participation of the membership is to include information on the importance of the annual meeting and election for the financial and administrative well-being of the association in all of the notices and communications.

My colleague Michael Chapnick with our firm’s West Palm Beach office recently posted a brief video in the "Community Chatter" page of our website about some of the best practices for associations to maximize the attendance and participation of their members. Visit our website at and click on the "Community Chatter" section to find Michael’s video.

By starting the planning early and working closely with qualified community association legal counsel in order to follow all of the prescribed protocols, associations can help to ensure that their annual meeting and election are a resounding success and in full compliance with Florida law.




Are Property Management Companies Required to Comply with The Fair Debt Collection Practices Act?

By Laura M. Manning-Hudson

Questions regarding compliance with the federal Fair Debt Collections Practices Act for the collection of condominium association assessments by property management companies have been a source of confusion in the industry for decades. Since the ruling in Harris v. Liberty Community Management, Inc., property management companies that fall within the exemption found in §1692a(6)(F)(i) of the FDCPA are not subject to the restrictions imposed by the Act.

Specifically, the Act provides an exemption for persons or entities "collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent such activity is incidental to a bona fide fiduciary obligation." In Harris, Liberty Community Management, as the property management company for Little Suwanee Point Community, was hired to provide management services for the association, which included the right to contract for the regular maintenance, repair and operation of common areas and facilities of the association, contract for utility services, purchase insurance policies, and negotiate the collection of assessments from delinquent homeowners. Liberty was also authorized to request, demand, collect, receive and invoice for all charges and assessments due to the association.

Homeowners residing at Little Suwanee Point Community brought an action against Liberty claiming it was a debt collector which had engaged in unfair business practices when it sent late letters to homeowners who were delinquent in the payment of assessments.

After reviewing the facts presented and the exemptions set forth in the Act, the Eleventh Circuit Court of Appeals held that Liberty was exempt from the requirements of the Act since the collection of past-due assessments was incidental to its obligations to the association. Had the collection of assessments been central to Liberty’s fiduciary obligations to the association, it would be considered a debt collector as defined by the Act, subject to the requirements imposed therein.

Accordingly, whether a property management company meets the definition of "exempt" is a question of fact for each individual association based on the scope of its duties. If the collection of assessments is central to the association’s contract with its property management company, the company’s actions to collect the debt could fall within the meaning of term "debt collector," subjecting it to the requirements imposed therein. However, if the company is also contracted to perform other various management duties, then its "collection efforts" likely will remain in the exempt status.

As we have discussed in the past, with the upsurge in collections during the recession, many managers responded to their association’s needs by taking on the preparation of documents above and beyond sending late letters to delinquent homeowners, including preparing statutory demand letters and claims of lien. Accordingly, and in light of Harris, management companies should carefully consider any requests to take on additional document preparation in relation to past-due assessments and whether performing those responsibilities could render its business as being management as well as debt collector.




Theft, Fraud Schemes and How Community Associations Can Avoid Them

By Roberto C. Blanch

In our column that appeared in the last issue of Condo News, Laura Manning-Hudson wrote about the disturbing trend of increased cases of fraud, theft and embezzlement at Florida community associations that she and many other association attorneys have been seeing. The damage that can be inflicted on associations by unscrupulous managers, employees and board members is indeed very severe, and this column will focus on the types of schemes that appear to be most prevalent and some of the best practices for associations to employ in order to help to avoid becoming a victim.

One of the most elementary strategies that are used by fraudsters is the pilfering of cash received from owners for their monthly assessments, which can be easily concealed by destroying copies of the receipts. The more elaborate schemes often entail under-the-table payments, bribes or kickbacks involving vendors that are actually co-conspirators. This could take the form of overpayments to the vendors that are then returned directly to the employee or board member instead of to the association. Other times it may involve a simple kickback from the vendor as an ongoing reward for their inflated contract.

The association’s checking account tends to be the primary vehicle for the theft and embezzlement of funds. Forged signatures and counterfeit checks may be used, and some fraudsters create fictitious vendors and issue payments directly to themselves using a bogus company name. Association credit cards have also been used in a similar fashion.

Election fraud aimed at taking a majority voting control of an association’s board in order to gain control of its purse strings is also one of the ploys that is being used with considerable success. By tampering with the ballots, stuffing the ballot box with forged and counterfeit ballots, and destroying legitimate ballots, fraudsters have been able to gain control of association boards in order to hatch and execute elaborate schemes to filch thousands of dollars from their associations each month.

Some of the best practices associations may implement to avoid being victimized include employing a high level of vigilance for all assessment payments, including verifying that the account number on the back of all of the returned checks matches the association’s account.

It is also important to ensure the independence of your association’s accounting firm by having it be selected by a vote of the board as opposed to the property manager. These accounting firms are called on to complete comprehensive annual audits, including a thorough review of the files for every member and vendor, as opposed to relying solely on reports.

Associations should also consider requiring two board members to sign all association checks. It is never recommended that associations allow property managers or other non-directors to sign association checks.

A designated board member should also conduct monthly reviews of the bookkeeping with the property manager, and this should include any credit card statements. Bank statements should also be required to be sent to the designated board member as well as the manager. The monthly review of these statements should include a careful review of all the checks that were issued and the signatures for each.

It is also wise to rotate the board membership on a regular basis and avoid having the same individuals in charge of the board or finances for considerable lengths of time.

For any payments received in cash, it is best to use a three-part cash receipt book so that copies of the receipts go to the payer, one for the bank deposit records and one for the bookkeeper.

By using these and other precautionary measures, community associations can make it as difficult as possible for managers, employees and board members to deploy schemes aimed at defrauding associations.




New Embezzlement Case at S. Fla. Condo; Best Practices for Associations to Avoid Theft

By Laura M. Manning-Hudson

If it seems as if there have been more and more stories in the news recently about condominium association’s funds being stolen or misappropriated by either board members or property managers, it’s because it’s true. Many of the reports have been coming from Bob Norman of Local 10 News (WPLG), the ABC affiliate for Miami-Dade, Broward and the Keys.

Norman’s latest story aired on Aug. 28, and the video of his report is featured in my post from Sept. 10 in our firm’s community association law blog at The story discusses the arrest of the former property manager of The Waterway condominium in Hollywood, Fla., for the alleged embezzlement of $228,000 from the association.

The transcript of the report reads:

A condo manager who allegedly embezzled nearly a quarter of a million dollars from a Hollywood Beach homeowners association was in Broward County circuit court for the first time Friday after police said she fled across the state.

Kristin Glansen, 35, pleaded not guilty to the allegation that she stole $228,000 in an embezzlement scheme from The Waterway condominium on Hollywood Beach, where she was entrusted as manager. After her plea, she had no comment as she shielded her face from a Local 10 News camera on her way out of the courtroom.

With a grand theft warrant out for her arrest, Glansen moved across the state to Clearwater, where she rented a home in that city’s historic district. After just a couple days in her home, her landlord, who asked that she not be named, became suspicious. The landlord said she did a Google search of Glansen and saw a Local 10 story reporting that Glansen was wanted by police, so she promptly called authorities, who quickly made the arrest.

"I’m glad they caught her," condo resident Jorge Quiros said. "I just couldn’t believe that she was able to take the money so easily and disappear like that."

Glansen allegedly created a fake company called Willis Homes, which has a very similar name to the condo’s actual insurance company, Willis of Florida, and wrote multiple checks to the fake company while letting the condo association’s actual insurance lapse, according to court records.

"The scheme was even more troubling when one considers what could have happened in the event of a flood, fire or other disaster," wrote Hollywood police Detective Larry Van Dusseldorp in his probable cause affidavit, adding that there was "overwhelming factual evidence of her guilt."

The information uncovered by Norman for his report is similar to that of many other cases that he and other Florida journalists have chronicled over the last several years which appear to be a disturbing trend in condominium and homeowner associations. Board members should pay close attention to the business of the association in order to avoid becoming the next victim of an unscrupulous manager or director. As we have discussed in the past, a board member’s responsibility is not limited to simply showing up at meetings to vote. Recall that board members are charged with a fiduciary responsibility to protect the interests of the entire association and all of its members. This means being vigilant about the business of the association.

The association in this case broke one of the cardinal rules of association management by allowing the property manager to sign checks on its behalf. Board members should be the only individuals allowed to sign checks, and I typically recommend that at least two board member signatures be required. Looking at the supporting documentation, backup and invoices for those checks is also important.

In addition, associations should be diligent when hiring new managers including performing background checks and checking references. While individuals who have been convicted of a felony (whose residency rights have not been restored) cannot serve as directors, some associations even go so far as to run background searches on candidates or seated board members.

Associations should also request duplicate statements from their banks, and the statements should be sent to someone other than the person who is handling the bookkeeping. In addition, association accounts should be independently and professionally audited at least once per year.

By taking these and other precautions, associations can help to avoid becoming the victim of fraud, theft and embezzlement.




Reviewing and Updating Associations’ Governing Documents and Bylaws

By Roberto c. Blanch

For condominium associations and HOAs, effective governing documents are essential for their successful management and financial well-being. Association boards should regularly review their governing documents and bylaws to ensure their continued functionality and eliminate provisions that may have become archaic.

Deciding whether the documents and bylaws need to be amended can be difficult, and ratifying new amendments with the approval of the membership often presents significant challenges. Most governing documents include voting requirements for amendments stipulating that they must be approved by super majorities of two-thirds or three-fourths of the membership.

One of the best approaches for associations to take in reviewing and updating of their governing documents is for the board of directors to appoint a revision committee for the documents. The committee, which should work together with the association attorney, should review all of the bylaws and develop suggested changes as necessary.

Some of the most common provisions of the association documents which may benefit from updates include those pertaining to voting, collections, leasing and fining procedures. Many associations are implementing amendments to limit voting rights to members who are not delinquent in their financial obligations to the association, and some are addressing recent statutory amendments authorizing electronic voting. Other associations are incorporating amendments to maximize their ability to recover attorney’s fees incurred for collection efforts, ban short-term rentals using websites such as Airbnb and other online listing services, strengthen their ability to fine members who refuse to comply with the community’s rules, and address rules involving pets and the use of the community’s amenities by members who are in arrears to the association.

Once the committee has identified changes to the bylaws that it would like to propose, they should present them to the board of directors. If the board approves, the committee should then work on drafting the amendments with the association’s legal counsel to ensure their enforceability and the likelihood of their adoption.

Before the proposed amendments are put to the membership for a vote, they should be presented and discussed with the members during the association’s monthly meetings or in special meetings that are called expressly for the purpose of proposing and considering the changes.

In order to facilitate the adoption of proposed amendments, they should be scheduled for votes at times during which higher voter turnout is expected, such as during the annual meeting. The text of the proposed amendments should be included in the delivery of notice for the meeting and its agenda, and the use of limited proxies should be considered for those who cannot attend the meeting in person.

While the process for changing a community association’s governing documents can be difficult and tedious, it is unwise for associations to ignore outdated provisions in their bylaws or avoid implementing important changes that can provide significant benefits.




Reviewing and Updating Associations’ Governing Documents and Bylaws

By Roberto C. Blanch

For condominium associations and HOAs, effective governing documents are essential for their success-ful management and financial well being. Association boards should regularly review their governing documents and bylaws to ensure their continued functionality and eliminate provisions that may have become archaic.

Deciding whether the documents and bylaws need to be amended can be difficult, and ratifying new amendments with the approval of the membership often presents significant challenges. Most governing documents include voting requirements for amendments stipulating that they must be approved by super majorities of two-thirds or three-fourths of the membership.

One of the best approaches for associations to take in reviewing and updating of their governing documents is for the board of directors to appoint a revision committee for the documents. The committee, which should work together with the association attorney, should review all of the bylaws and develop suggested changes as necessary.

Some of the most common provisions of the association documents which may benefit from updates include those pertaining to voting, collections, leasing and fining procedures. Many associations are implementing amendments to limit voting rights to members who are not delinquent in their financial obligations to the association, and some are addressing recent statutory amendments authorizing electronic voting. Other associations are incorporating amendments to maximize their ability to recover attorney’s fees incurred for collection efforts, ban short-term rentals using websites such as Airbnb and other online listing services, strengthen their ability to fine members who refuse to comply with the community’s rules, and address rules involving pets and the use of the community’s amenities by members who are in arrears to the association.

Once the committee has identified changes to the bylaws that it would like to propose, they should present them to the board of directors. If the board approves, the committee should then work on drafting the amendments with the association’s legal counsel to ensure their enforceability and the likelihood of their adoption.

Before the proposed amendments are put to the membership for a vote, they should be presented and discussed with the members during the association’s monthly meetings or in special meetings that are called expressly for the purpose of proposing and considering the changes.

In order to facilitate the adoption of proposed amendments, they should be scheduled for votes at times during which higher voter turnout is expected, such as during the annual meeting. The text of the proposed amendments should be included in the delivery of notice for the meeting and its agenda, and the use of limited proxies should be considered for those who cannot attend the meeting in person.

While the process for changing a community association’s governing documents can be difficult and tedious, it is unwise for associations to ignore outdated provisions in their bylaws or avoid implementing important changes that can provide significant benefits.




Florida Condo Associations, HOAs Contending with Growing Wave of Rule Violating Airbnb Rentals

Guest Column by 

Michael Chapnick:

For this week’s edition of Condo News, I am pleased to offer a guest column by my colleague Michael E. Chapnick, who is also a partner with our law firm in our West Palm Beach office. Michael has focused on community association law since 1996, and his article is on the issues that are now arising at South Florida condominium associations involving short-term rentals via Airbnb and other similar websites:

A recent article in The Boston Globe chronicled the case of a condo owner who earned rave reviews as a host on the vacation rental website Airbnb. He went to great lengths to accommodate the needs and whims of his guests, but apparently his willingness to oblige did not extend to his condominium association and fellow neighbors.

The unit owner was fined $9,700 for violating his condominium association’s rules against short-term rentals via the increasingly popular website, which allows users to list their residences for short-term rentals aimed at guests who desire more homey accommodations. The owner has retained an attorney to try to negotiate a lower fine, and he is quoted as saying that he "didn’t expect, as an owner, having somebody else in my own home would be a problem."

Perhaps he should have known better, as most association’s covenants and rules prohibit short-term rentals, and some even include an application process with background checks for prospective tenants. Yet he and other unit owners are claiming ignorance of the rules after being hit with fines ranging anywhere from $100 to $1,000, depending on their associations’ bylaws, for each night that they have rented their units, according to the newspaper’s report.

With South Florida’s countless luxury waterfront condominiums replete with investor-owned units that sit idle during large swaths of the year, the growing popularity of Airbnb and its rivals HomeAway and VRBO represents a potentially significant new problem area that should receive the attention of many association boards throughout the region. The prospect of a revolving door of short-term guests presents security and nuisance concerns, especially for condominiums, and the boards of the state’s condo associations would be well advised to review and possibly strengthen their covenants to specifically ban these types of rentals as well as ensure adequate enforcement provisions and procedures.

For those associations which are already contending with owners who are utilizing these websites for short-term rentals or suspect that it is taking place, their rules enforcement actions should begin with thorough investigations. In a non-confrontational and courteous manner, the property manager or board member should inquire with the new guests in the residences that are suspected of being rented as to the nature of their agreement with the unit owner and how they discovered the property. They should document their findings, and they should also research the websites to find and save the offending listings.

Armed with this information, they can then move forward on two fronts: directly with the owner as well as with Airbnb or the website listing the unit. Airbnb includes in its terms and conditions for hosts that they must comply with the rules governing rentals in their communities, and the site reserves the right to purge any listings that it deems to be in violation of its terms. Presumably, the company and its rivals would be willing to consider the removal of listings by hosts that are in violation of community association rules, and one of my colleagues at our firm has learned of a case from a client in which Airbnb was contacted by the association and pulled a listing from its site after it learned of the rule violation.

In addition, associations should share the evidence that they have gathered of the rentals using these websites with their legal counsel, who can use the information to issue an immediate cease and desist letter to the unit owner and help the association to determine an appropriate enforcement mechanism. However, for unit owners who have already begun enjoying the rewards of their rentals, it is a safe bet that they will be reluctant to discontinue them.

For the ardent renters who will refuse to comply with these demands and continue to rent their residences, the association counsel should move quickly to file a Petition for Mandatory Non-Binding Arbitration on the rule violation with the state’s Division of Condominiums, Time Shares and Mobile Homes, administered under the Department of Business & Professional Regulation. The Division of Condominiums, through its Arbitration Division, is equipped to quickly and efficiently conduct arbitrations on disputes involving covenant and rule violations, and its final orders can involve both the issuance of injunctive relief (i.e., requiring someone to do or not do something), as well as requiring the non-prevailing party to pay the reasonable attorneys’ fees and costs of the prevailing party incurred in bringing the action to enforce the association’s covenants and rules.

In the new peer-to-peer sharing economy, Airbnb and the other websites enabling homeowners to rent their residences to short-term guests are here to stay and likely to enjoy continued growth in the years to come. The associations in Florida that wish to avoid these short-term rentals should act now in order to protect the interests of their members.




Three-Year Jail Term Begins for Former Condo Manager Convicted of Stealing Over $200,000 from Association

By Roberto C. Blanch

The recent news about the start of a three-year jail sentence for the former property manager of a Sarasota, Fla.-area condominium who was convicted of stealing more than $200,000 from the association she managed sent a resounding message about the severe repercussions that property managers and association directors can face for theft and fraud.

According to several news reports, Judy Paul, 51, was sentenced to three years in prison followed by 10 years of probation, and was ordered to pay $200,000 in restitution to the Sand Cay Condominium Association, following her conviction in July, 2013, on felony counts including grand theft and scheming to defraud more than $50,000. It was further reported that Paul was scheduled to surrender at a court hearing on July 1 but failed to appear. The reports state that when she subsequently appeared in court at a later date, she pleaded with the judge for mercy, claiming that she suffered from several medical conditions including uncontrollable bowels, post-traumatic stress disorder as a result of the conviction, and that she attempted to end her life two days before she was originally scheduled to surrender.

Paul’s case was the first to be brought to trial by the White Collar Crime Division of the State Attorney’s Office formed in 2013. Her fraud was discovered when a routine 2009 audit uncovered more than 50 checks that she had issued and cashed or deposited into her own bank accounts. Evidence presented at the trial revealed that she also purchased a Harley-Davidson motorcycle with association funds, and the unit owners were forced to cover the association’s shortfalls through assessments.

This case underscores the importance for association directors and property managers to implement procedures and policies aimed at avoiding the theft of association funds by those who are typically authorized to have access to them. These efforts may include requiring that at least two board members sign all checks and review documentation supporting the invoice or obligation to be paid, the requirement for background checks and screenings for managers and employees, the thorough review of all bank statements and financial records presented to directors and managers, the establishment of low limits on discretionary expense approvals by the property manager without board authorization, and a detailed review and understanding by directors of the association’s yearly financial audits performed by independent professionals. Directors should also coordinate with the association’s insurance agent to confirm that the association is adequately insured to best protect against such instances of fraud, theft and other types of employment dishonesty.

The severe prison sentence and financial restitution imposed in this case against the convicted former property manager should send a compelling message to unscrupulous managers and association directors who contemplate taking part in schemes to defraud and steal from their association.




Tenants’ Rights in Condominium Communities

By Laura M. Manning-Hudson

Our firm’s other community association attorneys and I are often asked by condominium association board members about the rights of tenants who are renting units in a condominium to use the common elements – as well as their ability to participate and vote in meetings and elections.

The Condominium Act provides that tenants who are leasing units in communities "shall have all use rights in the association property and those common elements otherwise readily available for use generally by unit owners." This means that associations must allow renters to have the same use rights as unit owners to the pool, fitness center, clubhouse, tennis court, etc. Renters may also use the parking spaces designated for their unit.

For unit owners who are leasing their residences, the law also provides that they "shall not have such rights except as a guest, unless such rights are waived in writing by the tenant." The law further provides: "The association shall have the right to adopt rules to prohibit dual usage by a unit owner and a tenant of association property and common elements otherwise readily available for use generally by unit owners." This means that owners who rent out their units may not also come by to swim in the pool whenever they want!

With regard to association meetings and voting, tenants do not typically have the right to attend meetings because they are not owners, however, tenants who are conferred with a Power of Attorney by their unit owners may attend and speak at the association meetings. Voting rights and requirements for board membership are generally document specific and can be found in the association’s bylaws.

Another issue that often arises is whether condominiums can prohibit tenants from having pets even if the governing documents allow unit owners to have pets. The issue turns on the exact language in an association’s governing documents. Many board members are surprised to learn that they may adopt rules that restrict tenants from having pets based on the language in their recorded documents – but this is not always the case. Many association documents require a unit owner vote to amend the documents in order to restrict tenants from having pets.

Finally, if a tenant or their landlord/unit owner violates the association’s rules and regulations or other governing documents, the Condominium Act has empowered the association to restrict the tenant’s ability to use the common elements. This also applies to the tenants of unit owners who become more than 90 days delinquent in the payment of their association dues.

With so many investor-owned units in South Florida condominium communities, significant percentages of tenants under short and long-term leases are likely to be a permanent characteristic. Associations should bear in mind that laws do exist to protect tenants’ rights in order to help ensure that associations avoid the possibility of unforeseen legal liabilities.




Barking up the Wrong Tree

By Roberto C. Blanch

Yogi Berra once said "it ain’t over ‘till it’s over." That statement perfectly describes the most recent decision to come out of Florida’s Fourth District Court of Appeal dealing with a unit owner’s request for a reasonable accommodation under the Fair Housing Amendment Act of 1988 (FHAA) to keep an emotional support animal despite her association’s restrictions.

The case of Carolyn Hoffman v. Leisure Village, Inc. of Stuart, Fla. actually involved two dogs. As to the first dog, Hoffman and her association ended up in litigation which resulted in a settlement agreement whereby the association allowed her to keep the dog, with the understanding that she would not get another dog after it passed away, and if she did get another one she would have to move from Leisure Village.

Upon the death of her dog in 2010, Hoffman was diagnosed with chronic depression and her psychiatrist recommended that she get another dog to support her emotionally. Her attorney made a request to Leisure Village for an accommodation under the FHAA, but the request was denied. She got the dog anyway.

The association then went back into court and asked the judge to enforce the settlement agreement. At the same time, Hoffman filed a complaint with the U.S. Department of Housing and Urban Development (HUD) claiming that she was wrongfully denied an accommodation of her disability under the FHAA, and her complaint was ultimately sent to the Florida Commission on Human Relations (FCHR) for investigation. Before FCHR could finish its investigation, the trial court ordered Hoffman to remove her dog from the association.

When FCHR completed its investigation three months later and found cause to believe that a fair housing violation had occurred, Hoffman first tried to file a claim in federal court, and then back in state court, claiming discrimination. The courts dismissed her case, saying that she had waived her right to bring a new claim and all of the issues had already been decided in the case relating to her first dog.

The Fourth DCA found that the trial court did not even have the authority to decide Hoffman’s discrimination claim because while she had started the process of filing complaints with HUD and FCHR, FCHR did not even complete its investigation of the claim until three months after the court dismissed her claims. The court examined the law and found that Hoffman was required to exhaust the administrative process (i.e., filing a discrimination claim with HUD and having that claim investigated to conclusion) before she was entitled to file a lawsuit. The appellate panel reversed the dismissal of her discrimination claim, thereby allowing her to pursue it back in the trial court.

The lesson to be learned from Hoffman and Leisure Village is even when it appears that a fair housing dispute has been resolved by agreement, it is not necessarily over . . . "until it’s over."




Florida Supreme Court Adds Clarity to Activities That Constitute the Unlicensed Practice of Law by Community Association Managers

By Laura M. Manning-Hudson

In 1996, the Florida Supreme Court issued an advisory opinion regarding the activities of licensed community association managers ("CAM") that would constitute the unlicensed practice of law. In 2013, The Florida Bar weighed in on the issue when its Standing Committee on Unlicensed Practice of Law submitted a report to the state’s highest court for its consideration. On May 14, 2015, the Court filed its final opinion based on the Bar’s submission.

The Court upheld its findings from the 1996 opinion and adopted all of the recommendations provided by the Bar in its 2013 report. The Court found that the following tasks performed by CAMs are not considered the unlicensed practice of law:

• Preparation of a certificate of assessments due once the delinquent account is turned over to the attorney for the association

• Preparation of a certificate of assessments due once foreclosure against the unit has commenced

• Preparation of a certificate of assessments due once the member disputes in writing to the association the amount alleged as owed

• Drafting pre-arbitration demand letters

The Court ruled that the following tasks performed by CAMs are considered the unlicensed practice of law:

• Drafting of amendments to the declaration, bylaws, and articles of incorporation that are recorded in the public records when such documents are to be voted on by the members

• Preparation of construction lien documents

• Preparation, review, drafting and/or substantial involvement in the preparation/execution of contracts, including construction contracts, management contracts, cable television contracts, and others

• Any activity that requires statutory or case law analysis to reach a legal conclusion

The Court found that the following tasks performed by CAMs may or may not be considered the unlicensed practice of law, depending upon the facts and circumstances involved in each case:

• Determination of the number of days to be provided for a statutory notice

• Modification of limited proxy forms

• Preparation of documents concerning the right of the association to approve new prospective owners and/or tenants

• Determination of affirmative votes needed to pass a proposition or amendment to recorded documents

• Determination of votes needed to establish a quorum

• Identifying, through the review of title instruments, the owners who are to receive pre-lien letters

The Court’s ruling includes examples that help to clarify whether or not these activities constitute the unlicensed practice of law. The complete ruling with the examples that are provided for each of these tasks is available at

With the upsurge in collections and the issuance of demand letters and claims of lien by associations, many CAMs have responded to their association’s needs by taking on the preparation of these documents rather than turning to the association attorney. This has led to cases in which demand letters and claims of lien have been invalidated due to mistakes in legal descriptions and recording errors. Association boards should bear in mind that the preparation of demand letters, claims of lien, Notices of Commencement and other legal documents do not typically incur significant attorney fees, but the ramifications of errors in these documents can prove to be very costly. If The Florida Bar determines that a property manager has engaged in the unlicensed practice of law, that manager could face the imposition of fines as well as the possibility of having their CAM license revoked or suspended. It is simply not worth the risk for associations or their managers to prepare these documents in order to avoid the relatively nominal legal fees, and thereby risk exposure to their managers of potential fines and license issues.




An Overview on Condominium and HOA Reserve Funds, Links to Key Informational Resources

By Roberto C. Blanch

For community associations, preserving the property and its common areas is one of the foremost duties of the association directors. Beyond the day-to-day maintenance responsibilities, association directors and managers are responsible to develop funding plans for the upkeep and replacement of common facilities such as elevators, roofs, heating/cooling systems, swimming pools, decks and balconies. These funding plans generally take the form of accumulated budgetary reserves to help spread the anticipated costs of deferred maintenance or capital expenditures for the associations’ common facilities or building components over the estimated remaining useful lives of the components. Maintaining well-funded reserves enables associations to avoid large annual assessment increases or special assessments that can create financial hardship for the unit owners at those times when raising funds is required to perform the necessary deferred maintenance or replacement.

For condominium associations, establishing and funding reserve funds is an obligation of the board, as reserves are statutorily required to be included in condominium association budgets that must be adopted each year. Specifically, condominium associations must maintain reserve funds for roof replacement, exterior paint, pavement resurfacing and all other items for which the replacement or deferred maintenance costs exceed $10,000. Additionally, depending upon certain circumstances, the boards of some homeowners associations may also be required to budget for reserves, depending upon whether it is required by the association’s governing documents as established by the developer or voted for by the association members. While the funding of reserves may be waived or reduced on an annual basis upon obtaining the appropriate membership vote, community association boards may not be automatically required to submit such a question for a vote of the membership.

In an effort to ensure the proper funding of reserves it is in the best interests of most associations to retain highly qualified and experienced consultants to prepare an objective reserve study for the association. These studies are used to assess the actual costs for the ongoing maintenance of all of common facilities and building components. They include a detailed analysis of the current condition of the major components as well as a financial breakdown for their expected maintenance, repair or replacement costs. The experts who prepare these studies use a formula that takes into account the estimated cost of deferred maintenance or replacement as well as the remaining useful life of the component.

In light of the higher costs typically associated with comprehensive reserve studies, some smaller associations have opted for a simpler analysis, such as a Five-Year Capital Plan that is prepared by experienced professionals. Such a plan may be used by the board to determine the level of reserves expected to be required.

In addition to properly establishing and maintaining reserve funding and preventing deficits thereof, association board members have a fiduciary duty to the unit owners to ensure that a community’s reserve funds are protected and invested properly. Risky investments are not appropriate for these funds, and it is highly recommended for associations to turn to qualified professionals for their investment and tax advice. It is also imperative for reserve funds to be accounted for appropriately and accurately in the financial statements, audit reports, budgets and other financial and administrative community association records.

For condominium associations and their directors, one of the most helpful informational resources related to reserves is available online from the Florida Department of Business and Professional Regulation, Division of Condominiums. The agency’s "Budgets and Reserve Schedules: A Self-Study Training Manual" is the state’s official training manual for condominium association directors and members on association budgets and reserves. Click here to read and print the manual:

Another very helpful resource for all types of community associations is the "Reserve Studies/Management Best Practices Report" issued by the Foundation for Community Association Research, which is available by clicking on the following link:

Community association board members must consider many factors in order to properly assess and fund their associations’ reserve accounts. With the proper guidance and planning, properly established and funded reserve accounts assist associations to avoid unexpected financial burdens for all of the unit owners.




Legislative Update: Estoppel Certificate Bill Dead, Bill to Make Administrative Changes To Association Practices Passes

By Roberto C. Blanch

The premature adjournment "sine die" of the recent session of the Florida House of Representatives spelled the demise of various bills that had not yet been passed. One such bill was HB 611, which was the subject of one of our recent columns and blog articles describing the various changes that were being proposed by the bill in connection with procedures and charges related to estoppels provided by community associations.

A bill that did pass both the House and Senate is HB 791, which soon will be sent to Gov. Scott for his final approval before it is enacted. This bill makes some important updates to the state’s laws governing community association practices and procedures and includes the following changes:

• The requirement for electronic notices to be authorized by association’s bylaws for some meetings of the board, membership and association committees is eliminated.

• Establishes that the role of the fining committee is to confirm or reject the fines levied by the board.

• Suspension of voting rights or right to use common elements will apply to members as well as their tenants and guests, regardless of the number of units owned by the member, even if the delinquency or failure that resulted in the suspension arose from less than all of the multiple units owned by a member.

• Proxies will be allowed to be submitted to the association via fax or email.

• When voting rights are suspended, the voting interest allocated to the unit will be subtracted from the total number of voting interests.

• Establishment of procedures for implementation of electronic online voting for elections and other unit owner votes.

• A clarification that partial payments may be applied to outstanding amounts.

• Extends the "Distressed Condominium Act" (i.e., the "bulk buyer" law) until 2018.

• Amends the official records "catch-all" provision to include "written" records, as already appears in the HOA Act.

• Names Chapter 720 the "Homeowners’ Association Act."

• Provides that the "governing documents" of an HOA include rules and regulations.

• The failure to provide notice of recording amendment in an HOA does not affect the validity of the amendment.

Most of the foregoing changes help to clarify and update the existing statutes in an effort to enable associations to overcome some problem areas arising in connection with the laws governing condominium, cooperatives and homeowners associations. However, a few of the changes included in the bill, such as the introduction of electronic online voting, are expected to cause considerable issues as directors, managers and their legal counsel work to navigate through the process related to the implementation of such measures.

Association members, directors and community association property managers should be mindful of these changes and work closely with their legal counsel to address any questions regarding these changes should they eventually become law.





New Florida Bill Presents Serious Concerns for Estoppel Certificates Issued by Community Associations

By Laura M. Manning-Hudson

A bill was recently introduced in the current session of the Florida Legislature that presents significant concerns for community associations. House Bill 611 (SB 736 in the Senate) aims to make major changes to the process, costs and effect of the estoppel certificates prepared by associations. Estoppel certificates are used by associations (and their attorneys and property managers) in order to provide owners with an accurate accounting of the amounts owed to an association as of a particular date. Prospective buyers and title companies rely on these estoppel certificates in order to bind the association to the exact amount stated in the certificate until the expiration date set forth in the certificate.

According to the current language, associations have the authority to charge a fee for the estoppel certificate which is payable by the requesting party upon preparation of the certificate. There is no set limit to this fee, except that it must be established by a written resolution of the board of directors or provided by a written management, bookkeeping or maintenance contract. However, the proposed bill intends to impose a maximum estoppel fee of $100 to $150, as opposed to a "reasonable fee." Since the preparation of estoppel certificates can be highly detailed and labor intensive for experienced professionals, the newly proposed fee range is severely inadequate and may lead to increased management and legal fees which would be passed on to associations. In fairness, these fees should only be borne by the requesting party.

The bill also aims to eliminate the ability of an association and its agents to collect an estoppel fee prior to the closing of the sale of the underlying property by requiring that the estoppel certificate be paid from the proceeds of the sale. In addition, the proposed bill provides for extremely limited recourse for the collection of the fee should the closing never occur. Ultimately, the association may become liable for any fees that go uncollected.

The bill further proposes the reduction in the number of days that associations have to respond to estoppel requests from 15 down to 10 days. In complex cases such as those that include fines levied against an account in addition to delinquent maintenance dues and/or litigation, the preparation of an estoppel certificate typically exceeds 10 days. According to the proposals found in the bill, associations that are unable or fail to meet the 10-day deadline will have effectively waived any claims for the amounts due that would have been provided in the estoppel certificate. This is an extreme measure that would seriously impact an association’s right to collect unpaid assessments.

Another important concern for associations is that the proposed bill requires all estoppel certificates to be valid for 30 days from their issuance, and prevents the association and its agents from collecting additional assessments or other costs that accrue within those 30 days. In the case where an estoppel certificate is being requested for a delinquent account in litigation, attorneys would either have to stay the case pending payment or would need to include additional attorney’s fees if there are pending matters to be addressed within the 30-day period from the issuance of the estoppel.

Lastly, the proposed bill requires waiver language to be included in the estoppel certificate preventing the association from collecting moneys in excess of the amount set forth in the estoppel certificate.

For professionals who prepare estoppel certificates for community associations on a regular basis, the measures that are being put forth in this bill appear to be draconian. As such, we are encouraging association directors, members and property managers to contact their local representatives to express their concerns and disapproval with this bill. The contact information for the legislators for every district in the state can be found at




A Review of Some Best Practices for Association Annual Meetings, Elections

By Roberto C. Blanch

As the season for annual meetings and elections at South Florida community associations comes to a close, our firm’s other association attorneys and I are reminded of the significance of following all of the necessary protocols to ensure that association meetings and elections run as smoothly as possible. This topic further serves as a priority to many of our community association clients, causing many of them to inquire about safeguarding their election procedures and other issues such as perceived discrepancies between statutory election guidelines and the related provisions of their associations’ governing documents.

Below is a recap of recommended best practices related to annual meeting and election procedures that have been discussed in articles in our firm’s blog at

First, in an effort to promote participation and ensure voting by the qualified individuals, it is advisable that association management take the steps to verify that the association’s roster of owners is current and includes a description of all the individuals on title to the home or unit. The roster should further be organized in numerical order by unit numbers or addresses to facilitate the registration and ballot verification process. While a search of the county public records deed database is the most accurate source to verify ownership of units or homes, a more economical approach is to verify the ownership from the county’s property appraiser’s office. Once obtained, these records should be placed in a binder, together with copies of the deeds organized in the same order as the roster or sign-in sheet. Consider organizing the binder with dividers separating each floor/street, as this step may further facilitate the verification of ownership on the day of the meeting or election.

Proxies received prior to the meeting should be verified so as to ensure that they are dated and signed by the owner or other qualified voting member. Once the proxies have been verified, they should be logged in on the sign-in sheet, and a note should be included on the sheet indicating who the proxy is for the corresponding unit in order to ensure that the designated proxy signs-in for the unit or home at the meeting. If a proxy has a deficiency or is found to be questionable during the validation process, it should be set aside for the association attorney to review.

Additionally, the period between the proxy verification process and the time of the meeting may be used to enable the unit owner to cure any defects or resolve problems that may have been identified with regard to the proxy form. The valid proxies should be organized in a folder in the same order as the sign-in sheet for reference at the time of the meeting.

Ballots received in advance of the election should be organized in the order of the roster. The board should further consider appointing an independent committee to validate that the outer ballot envelopes have been properly executed and signed by the qualified voter(s) prior to the scheduled time of the election. This process will serve to further streamline the ballot validation process, which would otherwise have to be performed at the time of the meeting. Bear in mind that outer ballot envelopes may not be opened prior to the meeting.

It is important to remember that unlike proxies, voting certificates do not expire unless they are rescinded or replaced by another voting certificate. As such, a voting certificate binder should be organized in numerical order by unit or lot number or by street address of the unit or lot. As the voting certificates tend to remain valid until rescinded or as otherwise specified above, those received for the scheduled meeting or election should be included in the binder as replacements for any voting certificates previously provided for corresponding units or lots. Voting certificates are typically required for all units owned by multiple individuals or by a corporation or other legal entity. However, we caution that many community association documents require that voting certificates be submitted for units owned by husband and wife as well.

The executed Proof of Notice Affidavit for the annual meeting should also be available at the meeting. In addition, be sure to have plenty of blank ballots, envelopes (inner and outer ballot envelopes) and voting certificates on hand at the election for use by any owner who has lost or misplaced their ballot or voting certificate and would like to cast a ballot in person at the election.

By adhering to these suggested best practices, working with qualified community association legal counsel and following all of the other prescribed protocols for the annual meeting and election, associations can help to ensure that their elections are in compliance with Florida law.




Miami Herald Guest Column by Jeffrey Berlowitz: Chapter 11 Bankruptcy is Viable Option for Condo Associations, HOAs

By Laura M. Manning-Hudson

Our firm’s Jeffrey S. Berlowitz wrote the following guest column, which appeared in the March 23 edition of The Miami Herald’s "Business Monday" section:

While the housing market in South Florida is continuing its recovery, many of the community associations in the region are still struggling with delinquencies by unit owners in the payment of their association dues. The shortfalls in the associations’ collections, which in some cases have also been exacerbated by gross mismanagement or even theft by members of association boards, are causing scores of South Florida condominium and homeowners associations to experience significant difficulties in satisfying their operational expenses.

For associations that are incapable of meeting all of their financial obligations, seeking relief through a Chapter 11 bankruptcy reorganization plan has now become a viable option in order to avoid forcing some unit owners to pay more than their proportionate share of the assessments.

While many typically think of financial reorganization under Chapter 11 as being reserved exclusively for large corporations, condominium and homeowners associations are also entitled by law to file for this form of bankruptcy relief. In fact, over the last few years, a couple of South Florida associations have already emerged through a successful Chapter 11 reorganization and regained their financial footing.

Chapter 11 is a designed financial reorganization program that is operated under bankruptcy court supervision, and it enables an association to restructure its debt with the protection of an "automatic stay," which halts creditor collection proceedings during the pendency of the bankruptcy case unless they are otherwise allowed by the court. An association in Chapter 11 has the opportunity to negotiate with its creditors, cancel or renegotiate onerous contracts and leases, and avoid the seizure of assets and garnishing of bank accounts by creditors holding judgments.

In South Florida, two recent cases of association bankruptcies highlight the potential benefits for financially strapped condominiums and HOAs. The first was The Spa at Sunset Isles, which is a 232-unit condominium in Palm Beach County that filed for Chapter 11 bankruptcy in 2010. Because the community’s financial strains were being caused by many units under foreclosure, the bankruptcy court issued an order requiring the lenders that were languishing in their foreclosure actions to begin paying monthly assessments to the association before taking title to the units and, at the same time, ordered them to complete their foreclosure actions. Given that certain of The Spa’s units were in foreclosure proceedings for more than three years, the bankruptcy court’s order provided immediate and substantial relief. Ultimately, the community confirmed its reorganization plan with substantial funds in its operating account resulting from the payments it received from the foreclosing lenders.

Another recent South Florida association bankruptcy was filed last November by the Bella Luna Condominium Association, which was facing court battles with creditors, a 25 percent delinquency rate among its residents, and a threat from the City of Hialeah to cut off its water due to significant arrears in the payment of its water and sewer bills. With the help of the bankruptcy court, the condominium was able to slash its unsecured debt by approximately 85 percent and restructure its remaining debt, paving the way for this community to regain its financial well-being.

With the modest pace of the recovery in the housing market, many community associations are still facing significant financial distress, and Chapter 11 bankruptcy reorganization represents perhaps their best possible opportunity for a positive financial future. In fact, for associations that continue to face an exorbitant percentage of units in prolonged foreclosures, the ruling in the Palm Beach County case could set the tone for similar cases in the future. It has the potential to open the door for other associations to seek similar relief whereby lenders behind with their foreclosure actions are forced to begin paying assessments before they take title to the units, which will undoubtedly compel them to expedite their foreclosures.

In light of the two successful Chapter 11 bankruptcy reorganizations by South Florida community associations, the associations that currently find themselves in unsustainable financial straits may consider a bankruptcy reorganization filing as a viable option for a potentially solid financial future.




Magazine Article by Gary Mars: HOAs, Condo Associations Must Implement Safeguards to Prevent Election Fraud

By Laura M. Manning-Hudson


Our firm’s Gary M. Mars contributed the following guest column for the April issues of Our City Weston and Our City Davie magazines:

A recent case in Las Vegas has set a new bar for the heights to which criminals will go in their efforts to defraud condo associations and HOAs for contracts worth millions of dollars. A U.S. Justice Department investigation revealed that 11 homeowners and condominium associations in Las Vegas were defrauded of millions of dollars in a board of directors takeover scheme that took place from 2003 to 2009. Federal prosecutors are seeking jail time for the defendants in addition to approximately $25 million in restitution, and 37 defendants have taken plea agreements and are facing prison sentences while the remaining four defendants are awaiting trial.

The defendants are accused of getting their straw unit buyers elected to community associations’ boards of directors through forgery, bribery, ballot stuffing and dirty tricks, all with the help of a Kung Fu grandmaster to intimidate wary board members. As disclosed under his plea agreement, this martial arts expert admitted that the conspirators would rig the associations’ board of director elections by using stolen and forged ballots so that they could win a majority voting control of the boards in order to secure lucrative contracts once control of the board and association was obtained. Co-conspirators traveled to Mexico to print phony ballots, used the master key at a condominium complex in order to remove ballots from mailboxes, and retrieved discarded ballots from a condominium’s dumpsters.

Community association boards control the purse strings of the communities that they govern, and they have been long-standing targets for unscrupulous board members. For those who own residences in condo and HOA communities, this board takeover scheme underscores the level of involvement and vigilance that is necessary in order to help ensure that their community associations avoid this type of fraud.

Unit owners should make every effort to vote in all elections and submit their own ballots, as fraudsters will typically attempt to secure and utilize forged ballots from those who do not normally vote in the elections. They should also attend the election meeting and determine whether their ballot was counted or disallowed due to the submission of more than one ballot for their unit.

If association members believe that the integrity of their board of directors has been compromised, they should consult with highly experienced legal counsel in order to discuss and determine their next steps. Election recalls, court appointed receivers, and injunctions precluding boards from awarding contracts are among the measures that can be pursued, and criminal investigations by state and federal law enforcement are also possibilities that can come into play.




Florida’s HB 501 Seeks to Limit Construction Defect Claims to Seven Years from Date of Completion

By Roberto C. Blanche

In addition to Florida House Bill 87, which was the sub-ject of an article I recently authored in this publication, House Bill 501 also presents serious concerns for community associations, property owners and the general public. The bill seeks to reduce the statute of repose for construction-related claims from the current 10 years to just seven years – meaning that if the bill becomes law, those with claims related to construction defects will have only seven years from the date of the completion of construction to file their claims for the design, planning or construction of any improvement to real property.

Unlike the statute of limitations, which establishes a time limit within which an action must be brought from the time a cause of action accrues, the statute of repose bars a claim after the conclusion of the period of repose, even if the claim is for a concealed or latent defect that was not discovered until years after the completion of construction. It holds contractors, subcontractors, architects, engineers and other construction-industry professionals free from all liability after the set term of time expires. Under Florida law, the statute of limitations for construction defects expires four years after the defect is discovered or should have been discovered using due diligence, but the statute of repose currently expires (even if the statute of limitations has not run) ten years after the later of:

• the date of actual possession by the owner;

• the date of the issuance of a certificate of occupancy;

• the date of abandonment of construction if not completed; or

• the date of completion or termination of the contract between the professional engineer, registered architect, or licensed contractor and his or her employer.

HB 501 seeks to reduce the period of repose from 10 to seven years, so after seven years any latent structural defects or other latent defects that have not manifested themselves beforehand would become solely the responsibility of the property owner. For community associations, this change would be particularly troublesome because, unlike the period for the statute of limitations, which does not begin to run until after turnover of control from the developer, the clock starts ticking for the period of repose at the completion of construction, which may often be years before the turnover. Thus, if the turnover of a property from the developer is delayed beyond the normal course for some reason, the period for a community association to bring any claims related to the construction of the property governed by the association could be quite short, as no extension is given to the association under the period of repose under current law or under the proposed bill.

Typically, construction defect claims for community associations are only brought after turnover has taken place, as the turnover process includes an independent engineering inspection of the structural and mechanical elements. Also, prior to the turnover, the unit owners will not be as informed and involved with the management and administration of the property while it is still being overseen by the developer. And, it would be cost-prohibitive and impractical for individual unit owners to commission an engineering inspection and report for the common areas on their own, and then file suit for the construction defects of the whole condominium on their own.

Shortening the statute of repose to seven years could also create an incentive for developers to limit their exposure to construction defect liability by delaying the turnover as long as possible, as the longer they wait to complete the turnover, the shorter the window becomes for the association to identify any defects and pursue a claim under the statute of repose.

Builders and their lobbyists supporting the bill argue that most construction defects become apparent within a few years of the completion of construction, but the fact is that some of the most costly and cumbersome defects to repair are concealed latent structural and mechanical defects that can take well over seven years to become evident. A well-known and oft-cited example of this took place years ago in Key West when one of the area’s largest concrete firms used salt water to mix its concrete. The residual salt in the concrete caused the reinforcing steel to corrode, but the defect did not become fully apparent until years after the completion of construction.

The current ten year statute of repose was already previously reduced from fifteen years in 2006, and the additional reduction to seven years that is being considered appears to be receiving mixed reviews by the lawmakers. Two civil engineers gave expert testimony against the bill before the House’s Civil Justice Subcommittee, which narrowly passed the bill by a vote of 7-6 and sent it on to the House Judiciary Committee.

Our firm encourages community association stakeholders, including directors, property owners and managers, to contact their state representatives and senators to share their concerns regarding HB 501 and HB 87.




Elections 101

By Laura M. Manning-Hudson

With the New Year comes new plans, new resolutions and . . . elections. For many community associations election season is well under way and, as easy as an election may seem (go out, get the votes, and count the ballots – right?), there are so many statutory nuances in the electoral process that, if handled improperly, can invalidate the entire election and cost the association both time and money. In an effort to assist association boards and hopefully avoid costly mistakes during the process, we have outlined the pertinent information that you need to know.

The Election Process:

o First notice of election

• The first notice must be mailed, emailed, or hand delivered to the membership at least 60 days prior to the annual meeting/election day.

• The notice must include:

1. The date, time and location of the meeting and election.

2. The number of seats that are open for election.

3. Details surrounding the information sheet that candidates must submit if they wish to run for the board.

o Receipt of intents to run for the board

• All eligible persons who wish to run for the board must submit their notice of intent to be a candidate for election no less than 40 days prior to the annual meeting/election.

• Notice of intent may be submitted via mail, email, or hand delivered statement.

• Any notices of intent received on the 39th day before the election (regardless of the day of the week that the 40th day falls on) – are deemed invalid and those names may not be placed on the ballot.

• Each eligible candidate then has an additional 5 days (35 days prior to the election) to submit an information sheet (resume) to the association which will be mailed out with the second meeting notice.

o Second notice of election

• The second notice of election must be mailed, emailed or hand delivered to the membership at least 14 days prior to the annual meeting/election.

• The Second Notice should include:

o Instructions for casting a ballot.

o The notice and agenda for the annual meeting (which will include the election).

o Any information sheets (resumés) submitted by eligible candidates.

o The ballot listing all of the eligible candidates’ names in alphabetical order.

o An inner envelope labeled "Ballot Only" and an outer envelope labeled with the address of the property manager or the association.

o Voting

• In order to be valid, the unit owner’s name must be printed on the outer envelope, together with the unit number, and the eligible voter’s signature.

• The eligible voter must select a candidate using the ballot included with the second notice and place it in the inner envelope.

o The inner envelope must then be placed in the outer envelope

• The outer envelope may then be mailed or hand delivered to association or property manager.

• The same process must be utilized (ballot, inner envelope and outer envelope) at the annual meeting up until the time that the inspectors of the election begin to open the outer envelopes.

While this process may seem tedious and time consuming, it is extremely important to remember that the process is in place to ensure a fair election. When casting your vote, keep in mind the importance of the board in your community. The board generally serves as the "people’s voice" and handles the day to day operations and decisions of the association and, in conjunction with the manager, ensures that the community runs smoothly. Annual meetings and elections are an extremely critical time for any community association, so it is important that they are treated as such.

Please be advised that you may contact your attorney to handle the election for your association, as they are able to monitor and assist with the process to ensure all steps are followed correctly.




Changes to Construction Defect Claims Process Being Considered by Florida Legislature Create Concerns for Associations, Property Owners

By Roberto C. Blanch

House Bill 87 aims to amend Chapter 558, Florida Statutes, in an effort to help contractors and design professionals avoid construction defect litigation. However, if enacted, the bill could present some problems for community associations and property owners. If enacted, HB 87 would require community associations or other property owners wishing to pursue a construction defect claim to meet additional procedural requirements which could require substantial expenditures on engineering fees before being able to file suit. The bill would also require property owners to produce potentially large amounts of documents to the contractor or design professional before being permitted to file suit without imposing a similarly broad requirement on the contractor or design professional, and it would impose monetary sanctions against property owners who file suit for construction defects in several circumstances, while not providing for any sanctions against contractors or design professionals in similar situations.

Some of the proposed changes under HB 87 include: Revising the definition of the term "Completion of a building or improvement" to include issuance of a temporary certificate of occupancy, which could potentially shorten the statute of limitations for a property owner to file suit for construction defects; Providing additional requirements for a notice of claim, including the identification of specific location(s) of each alleged construction defect, as well as the specific provisions of the building code, project plans, project drawings, project specifications, or other documentation, information, or authority that serve as the basis of the claim for each alleged construction defect; Revising the requirements for a response to a notice of claim to address monetary settlement offers; Providing that, if a claimant proceeds with an action that includes any claim previously resolved in accordance with Chapter 558, the associated portion of that action shall be deemed frivolous (the term "previously resolved" is not defined); Providing for sanctions for such frivolous claims, including attorneys’ fees; Revising the provisions relating to production of records requested under Chapter 558, to include a claimant’s maintenance records and other documents related to the discovery, investigation, causation, and extent of the alleged defects identified in the notice of claim and any resulting damages; Providing for sanctions for construction defect claims that were solely the fault of a claimant or its agents, including costs of investigation, testing, and attorneys’ fees. (No sanctions are provided against a defendant if the defect is deemed to be solely the defendant’s fault.)

The bill would require more detailed settlement proposals from contractors that wish to extend a settlement offer, but it provides no penalties for defendants that fail to comply with this requirement. However, the associations and property owners that file claims are subjected to several potential penalties if they do not comply with the requirements under the proposed modifications to Chapter 558.

As it now stands, HB 87 would cause significant obstacles and undue burdens on property owners and community associations that wish to pursue construction defect claims. Community association stakeholders are encouraged to become informed about this bill and its progress in Tallahassee, and to contact their district’s elected State Representative to oppose the adoption of House Bill 87. The bill has currently been assigned to the Civil Justice Subcommittee, the Business & Professions Subcommittee and the Judiciary Committee. It must pass those committees before being presented to the full Florida House of Representatives in the 60-day legislative session that begins March 3, 2015. If passed, the new law would take effect October 1, 2015.




New vs. Almost-New

By Roberto C. Blanch

Constant new development of residential and mixed-use towers can be seen all over South Florida, with new projects being announced constantly. The construction of these new towers evokes buyers to ask themselves: What is better, new or old? The answer to that question is triggering existing community associations to spruce up their communities by giving them a facelift in an effort to stay competitive.

With the intention of luring buyers to choose new over old, newer buildings are offering luxuries such as: sleek and polished designs, newer amenities, revolutionized living technology and the idea of being the first to live in a space that has not yet been inhabited. Add-ons such as state of the art fitness centers, exclusive resident spa services and five-star concierge and building services are making the choice of selecting new construction more appealing. However, this option commonly comes with a heavier price tag and some unexpected issues. A few draw-backs such as unforeseen construction delays and unknown kinks arising after construction are common issues owners face when selecting new construction. They also face the infamous turnover phase — a time that could be very difficult for newly established community associations if they lack the right experts to guide them through the process. These challenges have prompted older towers to improve their buildings with hopes of enticing these buyers to look their way.

Older buildings are using the risks buyers face when purchasing new construction to their benefit. Towers over three years old are labeling themselves "established," having already dealt with most, if not all, construction defects found after the developer turned over control. They also highlight the fact that their boards are more seasoned, helping buyers feel like they are placing their investment in knowledgeable hands. Also, construction delays would never be an issue since these units are all move-in ready. In addition to highlighting some of the benefits that come with moving into an established community, many older condo towers are also making the effort in renovating their spaces to update their design to match the designs offered in newer construction. Some have gone as far as converting racquetball courts into multi-purpose rooms, yoga rooms, arts and crafts rooms and additional fitness centers. Simply by turning something old into something almost-new, these towers are keeping up with newer condos and competing at a price level that tends to be much more affordable, while still offering a similar style of living. With this in mind, the boards of these older buildings should be cautioned that their association’s governing documents may prevent some of the proposed changes, and that many alterations and improvements must be approved by the association membership. Accordingly, it is advisable for community association counsel to be involved in the planning of any such changes.

It will be interesting to see what buyers will choose once most of these towers are finalized. Our firm’s community association attorneys have assisted numerous clients with redesign projects throughout the years. We write in this column as well as in our blog at about important legal and administrative issues affecting associations in Florida, and we encourage association directors, members and property managers to enter their email address in the subscription box in the blog in order to automatically receive all of our future articles.



Partner Laura M. Manning-Hudson with the South Florida law firm Siegfried Rivera has focused on representing condominium and homeowners associations in matters involving all aspects of community association law since 1998.  She is based at the firm’s office in West Palm Beach and is a regular contributor to its community association law blog,  The firm represents more than 800 community associations, and it also maintains offices in Miami-Dade and Broward counties., 561-296-5444. 

Roberto C. Blanch is a partner with the law firm Siegfried Rivera and a regular contributor to the firm’s community association blog, He focuses on community association law and represents associations throughout South Florida and the Treasure Coast. He earned his law degree from Saint Thomas University and received his bachelor’s degree from the University of Florida. He can be reached at 1-800-737-1390 or via e-mail at