Condominium Associations

Condominium Associations

Can you legally stop rude behavior by residents?

More and more recently Condominium and Homeowner’s Associations have informed us of residents who have been behaving rudely to their neighbors. We have been asked what, if anything, can legally be done to stop such bad behavior.

For some reason, it appears a few people today find it perfectly acceptable to curse and swear at their neighbors, threaten them with bodily harm or make abusive and bullying type comments. Maybe this poor behavior is being learned and emulated from social media, interviews and speeches of some celebrities and new music lyrics where quite a bit of profane and obscene language is bantered about in a nonchalant way.

For many old school types, being on the receiving end of such language and aggressive behavior is quite disturbing. Of course if someone is threatened with physical harm or attacked in an aggressive manner, it might be prudent to call the police or sheriff before such threats or acts get out of hand. Sometimes it is important to determine between two individuals involved in an altercation who really is the abuser or attacker and who really is the victim. Sometimes the most vocal at the time of an incident is lying and claiming to be the victim when in actuality they are the perpetrator. It often takes time for others to ferrate out such a truth as lies can be uttered quickly and finding the truth can take time to reveal the lies.

Many times the rude behavior and language does not quite rise to the level of law enforcement intervention but is still quite shocking to many.

Although most governing documents for condominium and homeowners’ associations will have a nuisance provision, such a provision may just not cover the type of behavior we are talking about so the association may not have good legal means to get such behavior to stop.

A typical nuisance provision in an association documents reads something like: “No owner shall use his unit or the common elements or permit his unit or the common elements to be used, in any manner which constitutes or causes an unreasonable amount of annoyance or nuisance to the occupant of another unit, or which would not be consistent with the maintenance of the highest standards for a first class residential condominium, nor permit the premises to be used in a disorderly or unlawful way. The use of each unit and the common elements shall be consistent with existing laws and the condominium documents, and occupants shall at all times conduct themselves in a peaceful and orderly manner.”

It may be difficult to show that the kind of rude behavior we are discussing rises to a level of a nuisance or unreasonable amount of annoyance although it may be quite disturbing.

In order to bring such bad behavior into the fold of a nuisance or unreasonable amount of annoyance, we have suggest associations may want to amend the governing documents to includes something like: “No owner, tenant or gust may disturb any other person on the property with the use of profane, obscene, threatening or abusive comments or conduct.”

With this type beefed up nuisance language, we believe association residents experiencing rude and nasty behavior from their neighbors will then have the legal grounds to successfully bring legal action against them and be able to also recover prevailing party attorney’s fees if litigation becomes required in order to stop their bad nuisance behavior.

Maybe society is getting to the point where the pendulum is starting to swing the other way where civilized people aren’t going to condone or put up with nasty rude behavior of the few anymore. Sticks and stones will break bones and words can hurt people. It reminds me of the old saying that a really good comedian never has to curse. Likewise, good clever folks can make their point without having to go to the gutter of throwing profanity around.

However, until the low-lives “get it” to change their ways, you might want to amend your governing documents to add some teeth into your ability to make them stop.

Rob Samouce is a principal attorney in the Naples law firm of Samouce & Gal, P.A. He is a Florida Bar Board Certified Specialist in Condominium and Planned Development and concentrates his practice representing condominium, cooperative and homeowners associations in all their legal needs including the procedural governance of their associations, covenant enforcement, assessment collections, contract negotiations and contract litigation, real estate transactions, general business law, construction defect litigation and other general civil litigation matters. This column is not based on specific legal advice to anyone and is based on principles subject to change from time to time.
Homeowners Associations

Dealing with elderly neighbor in violation of rules

For most violations of rules and restrictions contained in a Condominium or Homeowners’ Association governing documents, the enforcement procedure is fairly simple. A call or letter is sent by management telling the rule or regulation violator to knock it off. If the violation continues, then a certified letter is usually sent from the Association’s attorney to the violator giving him or her one last chance to stop the violation. If that does not work, then the violator is usually sued either in arbitration for some Condominium violations or in local courts for other Condominium violations and for Homeowners’ Association violations.

If successful in litigation, the violator will then get an Order from the Judge to stop or cure the violation. If the violation continues or is not cured, then the violator can be found in contempt of court and fined by the Court or maybe even ultimately incarcerated if the contempt fines are not paid.

However, this fairly straight forward process many times does not work if the violator is elderly and suffering from dementia, Alzheimer’s or mental illness. Sometimes, the suffering person will wander around the common areas at odd times, steal things or damage common property, yell and scream at other owners or become a hoarder and live in a filthy unit or home. Often, family members, even spouses, want nothing to do with helping Association representatives try to abate the nuisance to other residents being bothered by their loved one’s actions. They will say they have tried to do all they can do already.

Many times, the elderly person who is losing, or has lost, their normal mental capacity will ignore calls or letters being sent to them by the Association, will avoid legal process of service and, if served, will not get an attorney and will then ignore a court order for compliance or contempt even if issued. Law enforcement usually will not get involved unless there is concrete evidence of a crime or a real threat of violence to others.

So where does an Association board turn to in order to try to rectify the situation when the normal legal routes probably will not be productive?

A starting point locally may be to check out Collier Senior Resources (CSR) which provides information and services for older adults and caregivers. CSR’s website is: collierseniorresources.org.

As stated in their website: “CSR embraces collaboration between like-minded organizations who are focused on older adults and caregivers. With this in mind and thanks to the efforts and support of Collier Senior Resources, the Leadership Coalition on Aging (LCA) includes over 40 local agencies and non-profit organizations dedicated to seniors and caregivers in our community. Consistent with our Mission, we have compiled a comprehensive and growing list of resources for Seniors and Caregivers. Many of the resources listed below are federal and regional; however, we strive to identify and provide resources that are local to help you find the answers to your questions and information you need. Local Resources reflects local providers and agencies committed to helping seniors and caregivers, specific to Collier County and Southwest Florida.”

Some of the listed resources that could be relevant to our person describe above include: Accessible Home Health Care of Naples, Administration on Aging, Alienated Grandparents Anonymous, Inc., Alzheimer’s Support Network, Assisting Hands Homecare, Care Right, Inc., Collier County Services for Seniors, Comfort Keepers, Executive Care, Florida Department of Elder Affairs, Grace Companion Care, Hanson’s Services, Inc., Home Care Assistance of Naples, Interim Health Care of Naples, Moorings Park Home Health, Parkinson Association of Southwest Florida, Seniors Helping Seniors.

As you can see, there are a plethora of local groups and organizations designed to assist the elderly neighbor who may not be quite fully with it anymore and may just need a little assistance and care from people knowledgeable of their condition. Changes are that quicker and better positive results may occur by looking into these type services rather than just trying to rely on the legal system to stop the violations by those suffering from mental conditions out of their control.

Rob Samouce is a principal attorney in the Naples law firm of Samouce & Gal, P.A. He is a Florida Bar Board Certified Specialist in Condominium and Planned Development and concentrates his practice representing condominium, cooperative and homeowners associations in all their legal needs including the procedural governance of their associations, covenant enforcement, assessment collections, contract negotiations and contract litigation, real estate transactions, general business law, construction defect litigation and other general civil litigation matters. This column is not based on specific legal advice to anyone and is based on principles subject to change from time to time.
Condominium Associations

How associations can save auditing fees

Thanks to House Bill 6027 that was approved by the Florida Legislature in 2017, the members of condominium, cooperative and homeowners associations can now waive the preparation of costly financial auditing reporting each fiscal year and instead opt for simple reports of cash receipts and expenditures.

In the past, condominium associations could only waive for three (3) fiscal years in a row and then would have to have audited type reports prepared in the 4th year. This requirement of not being able to waive in the 4th year has been removed. There was also an exemption for associations under 50 units from having to prepare audited type reports that was removed. So now, all community associations are subject to similar regulations when it comes to year-end financial reporting.

For associations with total annual revenues of less than $150,000, only a simple report of cash receipts and expenditures has to be prepared and such a report can be prepared by a bookkeeper.

For associations with total annual revenues of $150,000 or more, but less than $300,000, a compiled financial statement prepared by a CPA is required. However, the members can vote by a majority of the owners present at a properly called meeting to waive a compilation and instead have a simple report of cash receipts and expenditures.

For associations with total annual revenues of at least $300,000 but less than $500,000, a reviewed financial statement prepared by a CPA is required. However, the members can vote by a majority of the owners present at a properly called meeting waive a review and instead have a compiled financial statement or simple report of cash receipts and expenditures prepared.

For associations with total annual revenues of $500,000 or more, a reviewed financial statement prepared by a CPA is required. However, the members can vote by a majority of the owners present at a properly called meeting to waive an audit and instead have a reviewed financial statement, complied financial statement or a simple report of case receipts and expenditures prepared.

A board of directors can always decide in a particular fiscal year to not put up a waiver vote to the members and have the requisite review, compilation or audit prepared or even a greater auditing report prepared if the board believes it would be beneficial to have a CPA review the books.

Many times boards will opt for the CPA review of the books, whether it be a compilation, review or audit, if it has been many years since the last CPA review, there has been an overhaul change to the members of the board, or a change in management. This is to make sure association expenditures have been, and will continue to be, on the up and up.

When there has been no evidence or indication of any problems with the association’s finances, many boards will decide to ask the members to waive the CPA’s reviews to save the association some money as the CPA reports get more costly the higher the level of reporting is chosen; with the cost increasing from a compilation to a review to an audit.

Association boards need to decide each fiscal year whether they want to go for a membership vote to waive the CPA reporting requirements. If a waiver vote of the members is to be taken, the vote is usually taken by proxy at the annual meeting of the members (usually in the first quarter of the year- January to March) and if not by the annual meeting should be taken before the end of the fiscal year.

Rob Samouce is a principal attorney in the Naples law firm of Samouce & Gal, P.A. He is a Florida Bar Board Certified Specialist in Condominium and Planned Development and concentrates his practice representing condominium, cooperative and homeowners associations in all their legal needs including the procedural governance of their associations, covenant enforcement, assessment collections, contract negotiations and contract litigation, real estate transactions, general business law, construction defect litigation and other general civil litigation matters. This column is not based on specific legal advice to anyone and is based on principles subject to change from time to time.
Condominium Associations

When do community rules and regulations have to be enforced?

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.
Condominium Associations

Condo boards must now get vote before material alterations begin

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.
Condominium Associations

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

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

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

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.
Condominium Associations

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

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.
Condominium Associations

Is your association protected from investor slum landlords?

We are seeing it more and more that when local homes and condominium units are put on the market for sale, rather than being purchased by retirees or families, many are being snapped up by shrewd investors and then being turned into yearly rentals or rented on internet short-term bed and breakfast sites.

We then get the complaint calls from neighbors, who see many of the short-term daily or weekly renters treating the homes or units like resort hotels with late night loud parties and people coming and going at all hours. Others are being rented on a yearly basis leased to whomever will pay the rent: many of whom are fly-by-night unsavory folks. Until they decide to flip the units one day, the out of sight, out of mind, investor purchasers do not really care what their tenants are doing to the neighborhood as long as they keep getting their rent.

Without any protection in your association’s governing documents, there is really no way to prevent or stop this practice in your community and it seems to be getting worse every month. However, there are ways to amend your documents with a membership vote to curb these rental problems being created by the investors.

One effective method is to amend your documents to say that new purchasers cannot rent their unit until they have owned it for say three years. Another is to limit short-term rentals to no less than 30 days and have an effective screening processing in place for background approval of renters. You might want to also limit the length or rentals to say no more than six months to stop yearly rentals.

It is also important when restricting rentals to also have reasonable restrictions on guest of owners in their absence to stop the abuse of owners and renters claiming that they are “guests” rather than tenants. You could say that guests in the absence of the owner can only stay for so many days and only so many times per year.

Last, to keep bad folks from moving into your community, it is important to require new residents, who may be friends or family members of approved owners, to be background checked for approval once say they have lived in the home or unit for over 30 days.

Convicted felons, financially irresponsible people and others, whose bad character have been found by the law to not have the right to live in a community that have specific written regulations to exclude them. They can be kept out of your community if you have the proper transfer approval screening provisions in you documents.

Of course under Federal Fair Housing Laws, you cannot discriminate based upon race, religion, sex etc. in approving or disapproving potential new owners and tenants. However, you can discriminate against bad folks and they don’t have to right to live in your community if you have document language preventing them and you follow background processing procedures to properly disapprove them before they have a chance to move 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.