Condominium Associations

When do community rules and regulations have to be enforced?

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A typical question we get from new association directors is: When do our association’s rules and regulations have to be enforced?

In most condominium and homeowners’ associations, there are regulations contained in the Declaration of Condominium or Declaration of Covenants recorded in the county public records and also unrecorded “house” rules located in the association’s official records.

Typically there are many such rules and regulations that owners, tenants and guests are legally required to follow whether they have ever read them or not. The residents are considered to have constructive knowledge of rules and regulations because the governing documents are recorded in the public records. So, although they might not have actual knowledge of the rules and regulations (never seen them or read them), the residents are legally required to follow them because of their constructive knowledge.

Of course by not having actual knowledge of all the rules and regulations, there will most likely be violations by owners, guests and tenants even though the violations may be unintentional or unknowingly.

Typically, unless another resident reports any of these violations to the board or management, the board will not know that the violations are going on. This is not necessarily a bad thing because if a violation is not bothering anyone else in the community then who really cares about the violation existing.

However, if a resident reports a violation of the written rules and regulations, then the board of directors, as part of their fiduciary duty under the association’s documents, are required then to enforce compliance to make sure the violation ceases. If the board fails to do so, the resident could then go after the directors for failing in their duties.

This fiduciary duty does not mean that directors must run all over the community looking for violations. In the “mind of the board” there are no violations of rules or regulations (even though they exist) until such time as they are reported to the board or manager. You could have a violation that has been there for five (5) years and nobody reported it. Examples could be someone with an indoor house cat in a no pet condominium, an owner who made an unapproved patio on the common elements, or an owner smoking on a balcony where such smoking is prohibited.

Until, someone reports such a five (5) year ongoing violation to the board or management, there is no legal knowledge of the violation. Once the violation is reported, the board can then go after the violator usually with management calling and/or sending a violation letter to the owner of the residence in violation and providing a reasonable time to correct the violation.

If after such time the violation has not been cured and continues, then the board should send the information to the association’s legal counsel who will send the violator a last chance letter letting the owner know that if the violation is not immediately corrected, the association may have to sue the owner and resident violator. If litigation becomes necessary, the association will let the owner and violator know that it will be able recover its prevailing party attorneys’ fees from the owner and violator.

The owner and violator will not be able to claim estoppel (sitting on your hands when you know of a violation) in the five (5) year ongoing violation scenario because the Board had no knowledge of the long ongoing violation until just recently. Once, the Board knows of the violation however, it has to start enforcement in a reasonable time. Some cases say that you must actually bring a lawsuit within 6 months from knowledge of the violation or lose your right to do so.

It is also important in enforcing rule and regulation violations to take into consideration the defense concept of selective enforcement. This is when the board goes after one owner for a violation and the owner comes back and says there are many similar violations by other owners that the board has not gone after. Selective enforcement says that you must treat all know violators of the same violation equally. If you have knowledge of more than one violator, you must enforce all of violators in the same manner.

This selective enforcement defense only works when comparing apples to apples. If you are comparing apples to oranges (such as a paint color violation verses a pet violation), you cannot use the selective enforcement defense that: because you did not enforce the pet violation you cannot enforce the paint color violation.

If a particular rule on the books has not been enforced in a long time and past boards have allowed known violations to occur, if a new board wants to start enforcing the rule in the future, it needs to first send notice to all owners that violations of the rule will no longer be allowed and the association is going to start enforcing the rule. Under this scenario, old violations will probably be grandfathered in to remain but no new violations will be allowed.

Rule and regulation enforcement is one of the primary duties of officers, directors, management and the legal team of condominium and homeowners’ associations in order to maintain a harmonious, civil and aesthetic community that everyone can be proud to live in.

Rob Samouce, a principal attorney in the Naples law firm of Samouce & Gal, P.A., concentrates his practice in the areas of community associations including condominium, cooperative and homeowners’ associations, real estate transactions, closings and related mortgage law, general business law, estate planning, construction defect litigation and general civil litigation. This column is not based on specific legal advice to anyone and is based on principles subject to change from time to time. Those persons interested in specific legal advice on topics discussed in this column should consult competent legal counsel.
Condos and HOA's

Diamonds are not forever if there is a unilateral mistake

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Condominium and homeowners’ association officers and directors need to be careful when negotiating and entering into contracts with vendors such as construction contractors, interior decorators, architects etc. because if the association and the vendor are not on the same page (legally have a meeting of the minds), the contract can be nullified based upon what is called a unilateral mistake of one of the parties.

This unilateral mistake concept is well set out in a recent appellate case out of the east coast of Florida, DePrince v. Starboard Cruise Services Inc., Case No. 3D16-1149 (Fla. 3rd DCA, August 1, 2018). In this Case, a Thomas DePrince was on a cruise and visited the ship’s jewelry boutique and said that he was interested in purchasing a 15- to 20-carat loose diamond. He said he wanted an emerald cut, high quality, color D, E, or F diamond with a GIA certificate.

The sales associate at the boutique electronically mailed Mr. DePrince’s request to Starboard’s corporate office. An employee at the corporate office reached out to Starboard’s vendor in California, Sophia Fiori. The employee from Sophia Fiori, who had reservations because he did not believe a sale of this magnitude should take place aboard a ship, called a diamond broker in New York, Julius Klein, for its available inventory.

Two diamonds were selected from the inventory listing and the following information was emailed to the ship and the information was presented to Mr. DePrince, and his partner, Mr. Crawford.

“These prices are ship sailing prices based on the lowest tier diamond margin we have. Let me know if you have any questions. EC 20.64 D VVS2 GIA VG G NON selling price $235,000, EC 20.73 E VVS2 GIA EX EX FNT selling price $245,000.”

The Starboard’s corporate employee and the sales associate on board at the ship’s boutique had never sold a large loose diamond before and did not realize the quote price was per carat. Mr. Crawford, who was a certified gemologist, asked the opinion of DePrince’s sister, a graduate gemologist. She warned that something was not right because the price for a diamond of that size should be in the millions and recommended not buying the diamond (in this case the price should have been $4,850,400 for the diamond with the quoted selling price of $235,000).

Disregarding his sister’s advice, Mr. DePrince contracted to purchase the 20.64 carat diamond for the quoted $235,000 price and paid with his American Express credit card.

Shortly after the sale, Starboard discovered that the $235,000 price was per carat and immediately notified DePrince of the error and reversed the charges to his credit card. DePrince then sued to enforce the parties’ contract.

The trial court first ruled in favor of Starboard in Summary Judgment based upon Starboard’s defense of unilateral mistake. A panel of the 3rd DCA reversed in favor of DePrince. The case then went to trial and the jury found that Starboard should be excused from performing under the contract because it committed a unilateral mistake. On the second appeal, another panel of the 3rd DCA reversed again in favor of DePrince and so upon Starboard’s Motion for Rehearing En Banc the 3rd DCA revisited the facts and pertinent law.

The 3rd DCA sitting, En Banc looked to see if “inducement” is an element of a unilateral mistake as there had been conflicting cases – some saying yes and some saying no.

The 3rd DCA finally said that inducement is not an element of unilateral mistake. The Court held that: “A contract may be set aside on the basis of a unilateral mistake of material fact if: (1) the mistake was not the result of an inexcusable lack of due care; (2) denial of release from the contract would be inequitable; and (3) the other party to the contract has not so changed its position in reliance on the contract that rescission would be unconscionable.

The 3rd DCA said that the jury was properly instructed and that there was competent substantial evidence supporting the jury’s finding that all three (3) required elements for a unilateral mistake had been met. Starboard received incorrect information from its home office, which caused the company to quote a price that was a fraction of the company’s cost to purchase the diamond wholesale. The mistake was not “inexcusable” and DePrince did not detrimentally rely on the mistake such that it would be unconscionable to rescind the sales contract. Starboard won.

It is interesting to note that Mr. DePrince had been informed from his sister and his partner (who were gem experts) that something was wrong with the extremely low price for the diamond and that he never shared this knowledge with the sales associate on the ship but rather appeared to try to “get a steal” and quickly close the sale with his American Express. Courts do then take into consideration the apparent demeanor and intent of the parties which in this case finally resulted in a just outcome.

Unilateral mistake can sometimes come up in community association contracts, especially when the contract is based upon time and materials. An example would be when the association is looking for say a $100,000 social room redo and the architect and/or interior designer has in mind a $400,000 job. The contract based upon payment by the amount of time and materials chosen should state estimated maximums or not to go over a certain cap to prevent a unilateral mistake which could nullify the contract and leave either contract party in a place they did not contemplate being when entering into the contract or maybe even in a lawsuit.

Rob Samouce, a principal attorney in the Naples law firm of Samouce & Gal, P.A., concentrates his practice in the areas of community associations including condominium, cooperative and homeowners’ associations, real estate transactions, closings and related mortgage law, general business law, estate planning, construction defect litigation and general civil litigation. This column is not based on specific legal advice to anyone and is based on principles subject to change from time to time. Those persons interested in specific legal advice on topics discussed in this column should consult competent legal counsel.
Condos and HOA's

Fiduciary responsibility does not stop after season

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Well here we are in late summer and for many condominium and homeowners’ associations it has been a quiet summer because many, if not most, of the association members went back up North after Easter. Thus, “out of sight-out of mind” has taken over when it comes to association matters.

For many associations, all of the directors and officers left and subsequently left the governance of their associations to their property managers until they return.

If an association has a good and active property manager that is being well paid, this may not be much of a problem. However, for others, you might have the mice playing while the cats are out of town. During the lazy days of summer, if no one is minding the store, inventory may vanish, vendors may get sloppy with no oversight, landscaping may deteriorate and building leaks may go undetected causing expensive water and mold damage. Come fall, as long as lots of “color” annuals are planted around the place, the prevailing thought is that all of the snowbirds will be happy when they return.

Property managers and association vendors know to be conspicuous when all the members are in town in season. That is why the leaf blowers and lawn mowers are humming during the morning board meetings in the winter, the painters are hanging off the sides of the building, and the housekeepers are spiffing up the place to let those in power know that the job is getting done.

Some officers and directors need to be reminded that they have a fiduciary duty to their members year-round to properly maintain the buildings and grounds.

Jack Holeman, a property manager on the East coast of Florida, once wrote a good summary of what a director’s and officer’s fiduciary duty is.

Jack said, “A fiduciary relationship simply means a relationship of trust and confidence. An association and its board maintain the common property of, and do business as agent for, the folks who own the complex, i.e., the unit owner members. The unit owners, therefore, can expect to have complete trust in these elected leaders. It follows that, as trusted agents, the law holds such boards and officers to a higher standard of “trust” than would apply in usual business transactions. Board members must always act in good faith and in the best interests of the unit owners, while always operating within the scope of their authority. In other words, they can be trusted to act prudently and responsibly in every circumstance when dealing with and for the unit owners of the association. I must add, that since board members and officers are not necessarily required to be educated and expert in all areas needed to manage a community association they can, and should be expected to, rely heavily upon the expertise and advice of consultants such as attorneys, engineers, accountants and managers prior to making many decisions concerning handling the money, property, and lives of the resident owners.”

Association vendor performance still needs to be reviewed off-season by the president and invoices need to be reviewed and paid promptly by the treasurer. The property manager should be updating the president and board on a regular basis off-season as to what is going on. The board should still have at least a few board meetings off-season to keep on top of things. As the directors are away, there is nothing wrong with, and most well run associations will have a few teleconference board meetings off-season.

Every year we unfortunately hear the same thing again and again. Owners will return in November to find their units flooded out and covered in mold because no one inspected the units for possible leaks over the summer. The daily afternoon rains seeped through that small hole in the roof, the unit water shut-off valve was never shut off and then the hot water heater, toilet hose, washing machine hose, ice maker line, or dishwasher line broke. In multistory and high-rise condominiums, these leaks may have damaged many units and the common elements.

If someone was periodically inspecting the units and common areas over the summer when no one was around, many such leaks would be discovered quickly and much of the damage would have been mitigated.

Rob Samouce, a principal attorney in the Naples law firm of Samouce & Gal, P.A., concentrates his practice in the areas of community associations including condominium, cooperative and homeowners’ associations, real estate transactions, closings and related mortgage law, general business law, estate planning, construction defect litigation and general civil litigation. This column is not based on specific legal advice to anyone and is based on principles subject to change from time to time. Those persons interested in specific legal advice on topics discussed in this column should consult competent legal counsel.
Condominium Associations

Condo boards must now get vote before material alterations begin

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A very important change to Chapter 718 of the Florida Statutes (The Condominium Act) took effect July 1, 2018 that all Condominium Associations need to be aware of.

In House Bill 841, the last sentence in Section 718.113(2)(a), Florida Statutes was amended by adding the highlighted language: “Except as otherwise provided in this section, there shall be no material alteration or substantial additions to the common elements or to the real property which is association property, except in a manner provided in the declaration as originally recorded or as amended under the procedures provided therein. If the declaration as originally recorded or as amended under the procedures provided therein does not specify the procedure for approval of material alterations or substantial additions, 75 percent of the total voting interests of the association must approve the alterations or additions before the material alterations or substantial additions are commenced.”

Material alterations or substantial additions are basically any addition or improvement to real estate. This would include changing the paint color of the buildings (even minor changes in color), changing the type or color of tile or carpeting in the common areas or major landscaping changes.

There are some exceptions that have been carved out by Division arbitrators and courts not requiring a vote for certain alterations including adding a sea wall to protect the property, replacing river rock on balconies with tile and replacing asphalt with pavers. These exceptions are based upon protection of the condominium property and engineering recommendations.

Many condominium declarations, that have been rewritten and updated, will provide that the board of directors may make many material alterations under a certain dollar figure (usually somewhere between $30,000 and $50,000) and only require a membership vote if the alterations or additions will cost more than the dollar limit. This will allow many things to happen such as minor updates to the social room without having to get a membership vote.

However, most older or original declarations will be silent on this issue and therefore a 75 percent membership vote will be required for any and all alterations to the common areas (even ones that may only cost a few hundred dollars).

Before this new law change, that went into effect last month that mandated that the material alteration vote must be taken BEFORE the material alteration or substantial addition commenced, many boards would go ahead and approve the material alteration or substantial addition without a membership vote and take the risk that if an owner challenged them, they could always go get the membership vote after the alteration or addition was completed.

Now, it does not appear you can correct “not taking the vote” after the alteration or addition commenced. So, if your board does the alteration now before a vote, the association may very well have to pay for the cost of undoing the material alteration or substantial addition. All you will need is one dissident owner challenging the board for not taking the vote first. It won’t matter even if a vast majority of the owners like the alteration or addition and would approve a vote for it if a vote was attempted after the fact. Because the vote was not taken before the alteration or addition, the change will probably have to be undone if the dissident brings legal action against the association.

In addition, the directors, who allowed the alteration or addition without a vote, may be looking to the Association’s Directors and Officers liability insurance for any coverage after the fact to defend them if challenged.

So the lesson to be learned is that condominium associations with old documents need to update them to allow the board of directors to determine most alterations or additions that aren’t very expensive and go for the membership vote for the expensive alterations or additions.

Until old documents are updated, be sure to go get a membership vote first on all alterations or additions, even the inexpensive ones, or you may be paying twice to undo the changes that were not approved by the members first.

Rob Samouce, a principal attorney in the Naples law firm of Samouce & Gal, P.A., concentrates his practice in the areas of community associations including condominium, cooperative and homeowners’ associations, real estate transactions, closings and related mortgage law, general business law, estate planning, construction defect litigation and general civil litigation. This column is not based on specific legal advice to anyone and is based on principles subject to change from time to time. Those persons interested in specific legal advice on topics discussed in this column should consult competent legal counsel.
Hurricane Protection

What you need to know on tree law

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With all of the fallen and leaning trees resulting from Hurricane Irma, a question keeps coming up again and again. My neighbor’s tree limbs are hanging over my property or have fallen onto my property. Can I make the neighbor cut the tree down, cut it up and clean the tree debris off my property? Well usually the answer is no unless the tree is in danger of falling over into your yard.

When it comes to a tree, whose trunk is on a neighbor’s property but whose branches reach over the property line onto your property, the law says you can cut back the branches over your property line as long as you don’t kill the tree in doing so.

There are also county codes as to correct tree trimming methods you must follow to avoid fines. It is best to check with the county before you cut down a tree because many times you will need county permission and the governmental body may require that you plant a replacement tree.

However, if your neighbor’s tree has been compromised from a storm and your neighbor has not staked the tree back up so the tree is in danger of falling onto your property wherein it could damage your property, you may be able to persuade your neighbor to either stabilize the tree or take it down because it is endangering your property for which the neighbor could be liable if the tree falls and damages your property.

Now, if the storm knocked over your neighbor’s tree onto the ground and put lots of branches and even part of the tree trunk on your property, for some reason many homeowners believe that they can force their neighbor to remove “their neighbor’s” tree off your land. This is usually not the case.

You will be responsible for removing all that portion of the tree on your property and your neighbor will have to remove the rest of the tree lying on his property. The neighbor will not be responsible for any tree damage caused to your property as a result of it falling from the storm. A caveat would be if the tree was in ill health or dead before the storm and your neighbor should have removed it when it became unhealthy. You could then argue that the neighbor was negligent in not removing the tree or treating it once it become seriously ill.

The same goes for tree roots of a neighbor’s property, or of a homeowners’ association’s (HOA) common areas growing onto your lot. Many times the roots may uplift your driveway or buckle your pavers. You have the right to cut the roots at your property line, and put in a root barrier to prevent further growth onto your property as long as your cutting does not kill the tree. Otherwise, you will need your neighbor or HOA’s consent to cut up the tree.

We have seen the tree root invasion problem come up in many newer communities because the developer planted the trees (usually oaks) too close to the driveways, sidewalks and roadways. Rather than looking at handling just one tree root problem, these communities are having to deal with hundreds of trees that were planted in bad locations.

For most of these communities, they would rather just remove the trees rather than install root barriers. Usually, if there is sufficient other tree counts in the neighborhood, the county may allow the removal of the ones that are causing problems because of their root growth.

If not, the county may require the planting of sufficient replacement trees. It is important to determine if these trees are in the roadway right of way, easement areas in front of your lot or on your lot to determine who needs to consent for their removal.

If the trunks are located in the roadway right of way or front lot easement areas, they are usually the responsibility of the association to maintain but they sometimes can be the homeowner’s responsibility. However, if the trunks are located on the owner’s lots, the lot owner is usually the responsible party to maintain unless the association maintains the landscaping on all the lots.

Therefore, it is important to determine who is supposed to be maintaining the trees in question before going forth with a removal project. Determining who is responsible for maintaining the health of the trees (trimming, fertilizing etc.) as well as protecting surrounding property from tree root growth can sometime be difficult to ascertain. Usually a thorough review of the association’s governing documents as well as recorded neighborhood plats is required to make sure the tree related responsibilities are put with the correct party; the HOA or the homeowner.

Rob Samouce, a principal attorney in the Naples law firm of Samouce & Gal, P.A., concentrates his practice in the areas of community associations including condominium, cooperative and homeowners’ associations, real estate transactions, closings and related mortgage law, general business law, estate planning, construction defect litigation and general civil litigation. This column is not based on specific legal advice to anyone and is based on principles subject to change from time to time. Those persons interested in specific legal advice on topics discussed in this column should consult competent legal counsel.
Condominium Associations

New 2018 Legislation that affects condos, co-ops and HOAs

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This year a 72-page bill (House Bill 841) became law and will become effective July 1, 2018. HB 841 is a mixed bag mostly for condos but a few items also pertain to cooperatives and HOAs.

Last month we discussed in detail the provisions in the Bill affecting electrical vehicles, owners, and the rights the owners will now enjoy to install electric charging stations at their assigned parking spaces and pay for the electricity all at their sole cost.

This article is a review of the Bill’s other provisions in the order presented in the Bill and not in any order of importance. All the following provisions affect condominium associations except where noted also for cooperatives and/or HOAs.

Association Records:
Although most association records only have to be kept for at least seven (7) years, the minutes of board meetings and members meetings of the association must now be kept from inception of the association forever. Items provided by the developer at turnover, including copies of plans, permits, warranties, must be kept forever along with copies of the association’s Declaration, Articles of Incorporation, Bylaws and current Rules of the Association.

Association Website for Large Condos:
If an association manages a condominium with 150 or more units, it must have a website operating no later than January 2019. The website must post a copy of the Declaration, Bylaws, Articles of Incorporation, Rules, Contracts, Bids (for 1 year), Annual Budget, Financial Report, Director Certification, Contracts wherein association directors or officers are financially interested, conflict of interest documents, and notices and agendas for unit owner meetings.

Notices for Board Meetings Levying Assessments (Cooperatives too):
Notices of any meetings, at which a regular or special assessment against the unit owners will be considered by the board, must specifically state that assessments will be considered and provide the estimated cost and description of the purposes for such assessments. Boards can also adopt rules to post board and membership meeting notices on association websites.

Board Terms and Limits:
Now board member terms may be more than one (1) or two (2 years but a board member is limited to no more than eight (8) consecutive years unless approved by the affirmative vote of two-thirds of those voting or unless there are not enough eligible candidates to fill the vacancies on the board at the time of vacancy.

Recall:
The recall procedures of board members has been clarified. If a board concludes that a recall is facially valid, the recalled director must turn over all association records and property within 10 business days. If the board does not hold a meeting to determine a recall is facially valid or concludes at a meeting that the recall is not facially valid, the unit owner representative may file a petition with the Division within 60 days challenging the board. A recalled director may within 60 days file a petition challenging the recall. If the arbitrator determines the recall was invalid, the director shall be immediately reinstated and is entitled to reasonable prevailing party attorney’s fees.

Material Alteration Vote: 
A membership vote to approve material alterations to the common elements or association property must now be taken before the material alterations or substantial additions are commenced. In the past, sometimes a condominium association board would make the material alteration or substantial addition, and then if an owner complained, take the vote. Now it does not appear you can correct “not taking the vote” after the alteration or addition. If you do the alteration now before a vote, you may well have to pay for the cost of undoing the material alteration or substantial addition even if after the alteration a vast majority of the owners approve of the alteration or addition.

Conflicts of Interest Contracts:
If a director, officer or relative proposes to engage in activity that is a conflict of interest with the association, the conflict must be disclosed and then a vote of two-thirds of all other directors is required to approve the contract. At the next regular or special meeting of the members, a majority vote of the members may cancel the contract.

Fines (Cooperatives and HOAs):
If a fining committee approves a fine or suspension at a committee hearing, the fine payment is due five (5) days after the date of the committee meeting at which the fine is approved. The association must provide written notice of such fine or suspension by mail or hand delivery to the unit owner and, if applicable, to any tenant, licensee, or invitee of the unit owner.

Email Voting Prohibited (Cooperatives and HOAs):
Directors may use email as a means of communication but may not cast a vote on an association matter via email.

Delinquent Cooperative Directors or Officers:
In a cooperative, a director or officer more than 90 days delinquent in the payment of any monetary obligation due the association shall be deemed to have abandoned the officer, creating a vacant in the office to be filled according to law.

HOA Governing Document Amendments:
HOAs must now amend their governing documents the same as condos. Either the full text of the provision to be amended must be referenced with stricken and underlined language, or if the proposed language is extensive, a notation must be inserted that there is substantial rewording and see the governing documents for current text.

HOA Elections: 
If an HOAs election process allows candidates to be nominated in advance of the meeting, then an election is not required unless more candidates are nominated than vacancies exist. If an election is not required and nominations from the floor are not required because you allow for nominations in advance, write-in nominations are not permitted and such qualified candidates shall commence service on the board of directors, regardless of whether a quorum is attained at the annual meeting.

Rob Samouce, a principal attorney in the Naples law firm of Samouce & Gal, P.A., concentrates his practice in the areas of community associations including condominium, cooperative and homeowners’ associations, real estate transactions, closings and related mortgage law, general business law, estate planning, construction defect litigation and general civil litigation. This column is not based on specific legal advice to anyone and is based on principles subject to change from time to time. Those persons interested in specific legal advice on topics discussed in this column should consult competent legal counsel.
Condominium Associations

Owners of electric vehicles in condos can now charge up at assigned parking space

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The Florida Legislature looked favorably upon electric vehicle owners this session when it approved House Bill 841; a community association law affecting many aspects of community living including detailed new provisions to accommodate electric cars.

A preamble to the new law says: “The Legislature finds that the use of electric vehicles conserves and protects the state’s environmental resources, provides significant economic savings to drivers, and serves an important public interest. The participation of condominium associations is essential to the state’s efforts to conserve and protect the state’s environmental resources and provide economic savings to drivers. Therefore, the installation of an electric charging station shall be governed as follows:

The new law then lists five provisions or conditions concerning electric vehicle charging stations as follows:

1. A condominium declaration, restrictive covenants or the board of directors may not prohibit any unit owner from installing an electric vehicle charging station within the boundaries of the unit owner’s limited common element parking area.
2. The installation cannot cause irreparable damage to the condominium property.
3. The electricity for the charging station must be separately metered and the unit owner must pay for the electricity.
4. The unit owner installing the charging station is responsible for the costs of installation, operation, maintenance, repair and insurance of the station. The association can collect these costs the same as collecting assessments.
5. If the unit owner, or unit owner successor decides there is no longer a need for the electronic vehicle charging station, they must pay for the cost of removing the station. The association can collect the costs of removal the same as collecting assessments.

The association can require the unit owner to comply with safety requirements and building codes, comply with reasonable architectural standards, engage the services of a licensed and registered and electric charging station knowledgeable electrical contractor or engineer, provide a certificate of insurance naming the association as an additional insured within 14 days of approval of the station, and reimburse the association for the actual cost of any increased insurance premium amount attributable to the charging station within 14 days of receiving the association’s insurance premium invoice.

The association provides an implied easement across the common elements to the unit owner for the purpose of installing the station and furnishing electrical power and any necessary equipment to the station. Labor and material furnished for the installation of the station cannot be the basis for filing a lien against the association but a lien can be filed against the owner.
We know that many condominium associations have considered installing communal charging stations on the common elements so that those with electric cars can share a station and the cost of installation and the electric usage. This appeared to be a good idea to minimize the amount of rewiring and electric lines that would need to be installed on the common elements.
However, it appears now that even if you allowed or installed the communal stations, any owner with an assigned parking space now has the right to pay for the installation of a personal charging station at his parking space along with the requisite electric lines, breakers and meters necessary to do so. This could cause a lot of ongoing upheaval and disruption if many owners opt to install at various time charging stations at their individual parking spaces.

It will probably be pretty expensive to set up individual stations at each parking space, so many electric car owners can probably be persuaded to join in the cost of installing joint stations which would minimize the overall number of them. A board though could not force every electric car owner into using a joint charging station and if one or more owners really want to pay a lot more for their personal station, it looks like you cannot stop them now.

This appears to be another new example of government using its powers to promote the nudging of people out of conventional gasoline powered vehicles and into electric cars.
Rob Samouce, a principal attorney in the Naples law firm of Samouce & Gal, P.A., concentrates his practice in the areas of community associations including condominium, cooperative and homeowners’ associations, real estate transactions, closings and related mortgage law, general business law, estate planning, construction defect litigation and general civil litigation. This column is not based on specific legal advice to anyone and is based on principles subject to change from time to time. Those persons interested in specific legal advice on topics discussed in this column should consult competent legal counsel.
Condominium Associations

New association directors must sign papers or take a course

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Season is the time most condominium homeowners’ and cooperative associations have their annual meetings and elect their new directors. The Florida Legislature in the last few years has placed a silly new requirement on new volunteer directors.

Within ninety (90) days of the election upon which a new director must either sign a new director certification or submit to the association a certificate of satisfactory completion of an educational curriculum administered by a division-approved condominium education provider.

We find that most new directors elected to community associations are educated big boys and girls, many of whom are past captains in industry or government and loath the idea of some governmental entity telling them to go take an education course.

To avoid such a hassle to a non-paid community volunteer, most directors will elect to just sign a director’s certification form and give it to the association secretary to keep with the association’s records for five (5) years or the duration of the director’s uninterrupted tenure.

Now, the form’s language states that the new director certifies that he or she has read the Declaration of Condominium or Covenants, Articles of Incorporation, Bylaws, and current written rules and polices of the association and that the director will work to uphold such documents and policies to the best of their ability and will faithfully discharge their fiduciary responsibility to the association’s members.

In reality, no director has read all of the provisions of all of these documents, nor has their managers nor their legal counsel. Maybe that is the reason there is no legal penalty for signing the form if someone has not read all these documents.

So, as a matter of course, after new directors are elected by the membership to the board, these directors should just sign the certification form and put it in the association’s files. The provisions relating to these certifications go on to say that: “Failure to have such written certification or educational certificate on file does not affect the validity of any board action.”
The provisions go on to say that: “A director of an association of a residential condominium who fails to timely file the written certification or educational certificate is suspended from service on the board until he or she complies with this sub-subparagraph.”

So, if for some reason an owner with nothing better to do finds out that a new director did not sign a certification form, that dereliction of duty director will be suspended for as many minutes as it take for him to then sign the form. The provisions also say that the board may temporarily fill the vacancy during the period of suspension. In those few minutes it takes for the suspended director to sign a certification form, a board appointed director to fill the temporary vacancy may relish in their short- term appointment of a few minutes.

All of this certification mumbo jumbo resulted of course from a few bad acting directors in very large communities on the east coast of Florida who were abusing their positions. The certification nonsense has no place for the overwhelming well-run boards in Southwest Florida and most of the rest of the state. The bad facts have made for bad law causing a lot of unnecessary paperwork and record keeping for all community associations.

Rob Samouce, a principal attorney in the Naples law firm of Samouce & Gal, P.A., concentrates his practice in the areas of community associations including condominium, cooperative and homeowners’ associations, real estate transactions, closings and related mortgage law, general business law, estate planning, construction defect litigation and general civil litigation. This column is not based on specific legal advice to anyone and is based on principles subject to change from time to time. Those persons interested in specific legal advice on topics discussed in this column should consult competent legal counsel.
Homeowners Associations

How to protect the look of your neighborhood

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So one of your neighbors from Indiana likes John Cougar Mellencamp’s song “little pink houses” and the next thing you know they painted their house pink. Another neighbor puts on a new asphalt roof after the hurricane when all the other roofs in the neighborhood are barrel tile to save a few thousand dollars. Can your homeowners’ association make these folks conform and change the pink color and the asphalt roof?

Maybe not if you do not have good language in your declaration of covenants or if your association’s guidelines and standards do not mention house color or roof types.
Section 720.3035, Florida Statutes, provides that: “(1) The authority of an association or any architectural, construction improvement, or other such similar committee of an association to review and approve plans and specifications for the location, size, type, or appearance of any structure or other improvement on a parcel, or to enforce standards for the external appearance of any structure or improvement located on a parcel, shall be permitted only to the extent that the authority is specifically stated or reasonable inferred as to such location, size, type, or appearance in the declaration of covenants or other published guidelines and standards authorized by the declaration of covenants. . . . (5) Neither the association nor any architectural, construction improvement, or other similar committee of the association shall enforce any policy of restriction that is inconsistent with the rights and privileges of a parcel owner set forth in the declaration of covenants or other published guidelines and standards authorized by the declaration of covenants, whether uniformly applied or not.”
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A Florida court has interpreted this Statutory Section to mean that if you do not have any provisions in either your Declaration of Covenants or any published Guidelines and Standards as to the external appearance of homes, or the location, size, type, or appearance of any improvement (such as a swimming pool, fence, or patio addition), a homeowner in your community can do pretty much whatever he wants on his lot as long as he meets county or city codes.

Some homeowners’ associations may have some limited published guidelines concerning some aspects of external appearance of homes and what and where different structures can be placed upon a lot. However, usually there are a lot of possible alterations that homeowners may want to make that are absent is such guidelines.

Rather than having to look at every possible alteration that could be made and creating guidelines the size of a dictionary, we have found that the best way to curb such outlier behavior is to get a membership vote to amend your declaration of covenants to say something like: “The guidelines and standards for any item not contained in any written architectural guidelines and standards shall be whatever already physically exists in the community as originally constructed or which has been previously approved within the community as allowable alterations to what physically existed. If any item does not already exist within the community as previously approved nor is the criteria for such a guideline or standard contained within the written approved guidelines and standards, then such an item may not be used, placed or changed unless or until some criteria for such an item has been added to the written guidelines and standards.”

Most owners, who bought into your community, did so liking the original look of the homes in your neighborhood. After many years, some owners may want the look of their neighborhood to be updated. With the above type language added to your declaration, your association can then control how the updates can look by adopting new standards and guidelines. Without such “already physically exists” language, you may get a whole lot of strange new looking updates throughout the neighborhood that you cannot then make the owners change their alterations back to the original look once discovered.

Rob Samouce, a principal attorney in the Naples law firm of Samouce & Gal, P.A., concentrates his practice in the areas of community associations including condominium, cooperative and homeowners’ associations, real estate transactions, closings and related mortgage law, general business law, estate planning, construction defect litigation and general civil litigation. This column is not based on specific legal advice to anyone and is based on principles subject to change from time to time. Those persons interested in specific legal advice on topics discussed in this column should consult competent legal counsel.
Condominium Associations

Many condos want to install more storm protection after Irma. What are the options?

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Now that Irma has come and gone and most of the dry out and cleanup has occurred, we are getting many questions from condominium association directors and officers asking how can they button up their windows, doors and sliders in the future to better avoid damage next time a hurricane may come our way.

Under Sections 718.113(5) and 718.115(e), Florida Statutes, if the maintenance, repair and replacement of hurricane shutters, impact glass, code-compliant windows or doors, or other types of code-compliant hurricane protection is the responsibility of the association in the Declaration of Condominium, the association may install such hurricane protection and assess all owners the cost thereof as a common expense.

If the maintenance, repair and replacement of such hurricane protection is the ‘Owner’ in the Declaration, then if the association obtains a majority vote of the voting interests, it can install the hurricane protection and charge individually to the unit owners based upon the cost of installation of the hurricane protection appurtenant to the unit.

In most declarations, hurricane protection is not discussed, but windows and doors are usually the maintenance, repair and replacement responsibility of the owners. If the whole building had hurricane shutters installed initially when developed, then usually the maintenance, repair and replacement of them is the association. Otherwise, usually some of the owner installed hurricane shutters on their windows and lanai as an alteration making them responsible for such shutters maintenance, repair and replacement.

If the board does not want to be in charge of installing the hurricane protection, but would rather leave it up to the individual owners to install the protection at their units but still wants to make sure everyone installs the protection, it can try to get a membership vote to amend the Declaration of Condominium to require the owners to install the protection by a certain date.

Most engineers and professionals in the hurricane protection industry will agree that the best way to protect the building from hurricane force winds and rain is to have all unit and common areas windows, sliders and door openings to the building protected. If just one window or door is broken or breached, the wind and rain can get in and cause much damage throughout the building. So, if you are looking for real protection, a plan should include installing hurricane protection on all potential openings in the building.

You may also find, that once hurricane protection has been installed in the entire building, you may get a break or credit in the association’s building insurance as well as maybe individual unit owner insurance.

Rob Samouce, a principal attorney in the Naples law firm of Samouce & Gal, P.A., concentrates his practice in the areas of community associations including condominium, cooperative and homeowners’ associations, real estate transactions, closings and related mortgage law, general business law, estate planning, construction defect litigation and general civil litigation. This column is not based on specific legal advice to anyone and is based on principles subject to change from time to time. Those persons interested in specific legal advice on topics discussed in this column should consult competent legal counsel.