Condos and HOA’s

Condominium Associations

How to prevent bad actors from slipping into your community under radar

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So you have pretty good up to date governing documents. You require all prospective owners and tenants to apply for your Association’s approval before they can occupy a home or condominium unit. You limit the number and duration of leases allowed per year; maybe no more than three (3) times for year for no less than thirty (30) days. You also limit the number of guest visits and the duration of visits of an owner’s or tenant’s in the absence of the owner or tenant; maybe no more than thirty (30) days per year for immediately family members with total number of such visits limited to four (4) times per year and for extended family or other guests maybe no more than fourteen (14) days per year with a total number of such visits limited to two (2) times per year.

With such superior documents you limit bad actor guests to be on property for only a short period and any bad actor prospective purchasers or tenants will be denied approval once their background check is run revealing their checkered past that will provide grounds for occupancy disapproval.

However, there is one loophole in these better documents that we have seen lately being abused that you can now close by amending governing documents. That loophole is the spouse, significant other, family member or friend who moves in with the owner or tenant after the owner or tenant has been background approved. These people with criminal or financial background issues know they probably will not be approved if they are background checked so the prospective owner or tenant will not list them on the approval application. The convicted criminal will just wait a few weeks after the new owner or tenant moved in and then move in quietly at night or over the weekend.

Bingo, you now have a registered sex offender or convicted felon living in your community long-term. Once they are in, it can then be very difficult to get them removed from the community as long as there is no evidence they are breaking the community’s rules or regulations.

We have found the best way to handle this situation is to amend your Declaration of Condominium or Declaration of Covenants to say that: “once a guest, whether related or unrelated to the owner or primary occupant, who may occupy the unit together with the unit owner or tenant for a period of more than thirty (30) days in any twelve (12) month period, such guest must apply for and obtain Association approval in the same manner as a prospective owner or tenant is required to obtain Association approval pursuant to the transfer approval provisions. If the guest does not obtain Association approval within the requisite time periods, the guest must then vacate the unit”

If they are then disapproved after their background check reveals grounds to deny, you should then be able to get a court order to require them to leave your community if they fail to do so.

Believe it or not there are quite a few convicted sex offenders and predators living throughout Southwest Florida. You can check the Florida Department of Law Enforcement website which show by maps where some of these people are currently living: https://offender.fdle.state.fl.us/offender/sops/neighborhoodSearch.jsf

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

Regulations requiring civil discourse in your community

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For whatever reason we are getting more and more complaints from Associations that a resident is yelling and cursing at other residents either in person, on the property, or by use of nasty e-mails. Such conduct is very disturbing to many and they then ask us what they can legally do about it to get the person to stop.

Although most Condominium and Homeowners’ Associations have “nuisance” provisions in their governing documents which allows the Association to take legal action if a resident is causing a nuisance as defined in their documents, usually the nuisance provision only concerns matters such as playing music loud after hours or having loud parties with lots of noise and cars.

However such nuisance provisions usually do not cover people using profanity or personally acting abusive or threatening against other residents while on property or in e-mails or letters.

In order to beef up the nuisance language to cover vulgar and nasty behavior, we have found adding something like the following to the Declaration of Condominium or Declaration of Covenants will do the trick: “No owner, tenant or guest may disturb any other owner or resident with the use of profane, obscene, threatening or abusive comments either orally or in writing or by their conduct on the property that is abusive or threatening.”

Such an amendment will require a membership vote. However, once approved, it will be much easier for the Association to bring legal action against the owner for violation of the new nuisance provision by the owner or their guest or their tenant. If such legal action becomes necessary, per statute, the owner will be responsible for the Association’s prevailing party attorney’s fees.

Although it still is pretty rare for a community to have many residents who act is such an unsavory manor, we see that the ones who do seem to be getting bolder and bolder with the intensity of the vulgarity, rudeness, aggressive and threatening manner.

Sometimes we will see that nasty e-mails are written late at night, when the drafter can hide behind their video monitors and then the next day when they are confronted in person, they act a bit more pleasant.

Others don’t seem to give a flip and will spew venom loudly and often at anyone or everyone.

Many times Board members or management will try to talk with the vile folks in a reasonable manner and many times such attempts at being civil will go nowhere. Directors need to understand that usually they are not usually dealing with an individual with a normal personality. Maybe no one ever taught them that they can get win more with honey than with vinegar. The Directors have no legal obligation to respond to nasty e-mails and letters from fellow residents.

Sometimes law enforcement has to be called to remove these bad actors from Association meetings, prevent them from joining the meeting, or to protect residents being threatened. Residents should not hesitate to contact the police or sheriff’s office if they are physically threatened or assaulted. Usually law enforcement will have a chat with them so they understand that such behavior must stop and if warranted, they will be arrested.

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

I beg your pardon, Florida has promised you a rose garden

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This was a slim 2019 legislative session when it came to new laws affecting Condominium or Homeowners’ (HOA) Associations with only 2 new laws passed. In House Bill 7103, older condominiums over 75 feet tall got another last minute reprieve from having to retrofit their buildings with fire sprinklers, opt-out or adopt an engineered life safety system until 1/1/2024.

For those green thumbs out there, Senate Bill 82 became law effective July 1, 2019 which says that: “a county, municipality, or other political subdivision of this state may not regulate vegetable gardens on residential properties. Any such local ordinance or regulation regulating vegetable gardens on residential properties is void and unenforceable.”

It defines “vegetable garden” as “a plot of ground where herbs, fruits, flowers, or vegetable are cultivated for human ingestion”.

The local government may still regulate watering, fertilizer or control of invasive species of a general nature as long as the regulation is not specific to regulating vegetable gardens.

It appears from the language in the bill that the local government cannot even regulate where on the residential lot the vegetable garden can be located. So, we may start to see a variety of vegetable gardens in the front yards when driving around town.

You may note that this new law only pertains to local governmental entities’ regulations and does not mention (or therefore apply to) private HOA’s or condominium association rules and regulations. Therefore, private neighborhood and condominium associations should still be able to regulate whether vegetable gardens are allowed and if so where they can be located on the residential lot or property through the Associations’ Architectural Review or Control Boards (ARB or ARC) or through the Board of Directors.

The new vegetable garden law states that the Legislature intent was to: “encourage the development of sustainable cultivation of vegetables and fruits at all levels of production, including for personal consumption, as an important interest of the state.”

This new law seems to harken back to the “victory gardens” of WWI and WWII, although there is no apparent current war effort to support. It is nice though for those who want to grow their own fruits, flowers and vegetable as a means to promote a healthier lifestyle with a diversity of produce.

If vegetable gardens catch on in parts of Florida counties and cities that aren’t regulated by private community associations, then some private HOA’s and condominium associations may adopt new rules or regulations to allow for such gardens at specified locations on the residential lots or on the common areas.

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.
Condos and HOA's

Minimizing adverse effects of investor landlords

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There has been a growing phenomenon in Southwest Florida of investor corporations, limited liability companies or trusts buying homes in neighborhoods and units in condominiums whose investor owners have no intention of ever living in the home or unit. They are looking for rental investment income. They want to just lease the units to whomever for a number of years and then sell the properties for a profit.

It is common knowledge that many tenants do not treat the use of the home, unit, or common areas as well as owners do. These tenants do not have personal investment in the homes or units that homeowners and unit owners do. Many such tenants will rent for a few months or a few year and then move on. They do not have the same incentive as owners to keep the places up.

In addition because of the transient nature of these type renters, many will violate the community’s rules such as having many loud parties, having many visitors at all times of day and night, leaving their things out on the common areas, rarely mowing the lawn or weeding the gardens, possessing unlawful pets or keeping unpermitted vehicles on property.

It can take a lot of the Association’s time and money to try to police such unruly tenants.

Most of the out of town, out of sight, investor purchasers pretty much can care less who they rent to or what their renters do as long as they get their monthly rent and the place does not burn down.

So, in order to minimize the adverse effects such investor purchasers and their unruly tenants cause, we have found that one of the best solutions is to have the owners amend the governing documents of the community to prohibit new owners (other than those who acquire title by inheritance) from leasing their home or unit for a period of time. Usually its twenty four (24) to thirty six (36) months from acquisition of the home or unit before the new owner can lease.

Such an amendment will take a membership vote to approve at a special meeting of the members and will require the approval percentage set forth in the Declaration of Covenants or Declaration of Condominium. It could be 3/4, 2/3 of all owners, or of those who vote at a members meeting, or a simple majority of the owners. You will have to check your Declaration to see what approval percentage of your owners would be required. Association Legal counsel can prepare the necessary documents for such a vote including a notice of meeting, proxy and propose amendments.

This may not stop all investor purchasers. However, the return on investment looks a lot bleaker if the new investor, who will not be living in the unit, will not be able to make any money (rent) on the home or unit for a few years after purchase.

Some realtors may claim that the sky is falling if you put in any limitations on new prospective purchasers. However, we have not seen any issues, in communities with such restrictions, from owners being able to sell their residences and we have seen no adverse effect on property values. If anything, such restrictions increase the property values. In addition, if you have too many rentals in your community, some traditional family purchasers may not be able to get a mortgage as many lenders have community rental caps.

As you can see, there is a way to slow down or stop faceless investors from taking over your neighborhood or condominium. We are seeing more of them year after year and if you put such new owner leasing prohibitions in your documents, there is a good chance potential investor purchaser will look instead down the street for a community that does not have such restrictions to purchase. This way your community can remain stable and harmonious with most homes or units being occupied by full time or snowbird single family owners.

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

Can you legally stop rude behavior by residents?

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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

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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.
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.
Condos and HOA's

Does your association need to levy a special assessment to pay for Irma damage?

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There has been some very heavy Hurricane Irma cleanup and repair costs for many Southwest Florida condominiums and neighborhoods. Of course none of these unexpected costs were in the association’s budget for this year. So, how are associations going to pay the Irma damage and repair bills coming due?

There are basically three ways to pay these bills: Borrow from the bank, raise the regular assessments in the 2018 budget, or levy special assessments.

As most associations don’t want to pay bank interest unless necessary, and they also don’t want to raise regular assessments that much year to year, the most chosen method we are seeing associations using is levying special assessments.

After Hurricane Wilma in 2005, the state Legislature enacted broad emergency powers for association boards to use after hurricanes to address these types of issues. For condominium associations, it is Section 718.1256, Florida Statutes; and for homeowners associations, it is Section 720.316, Florida Statutes. The emergency language is almost identical for both types of associations.

Section 718.125(1)(l), Florida Statutes provides that: “To the extent allowed by law … in response to damage caused by an event for which a state of emergency is declared … in the locale in which the condominium is located, may, but is not required to, exercise the following powers: … (l) Regardless of any provision to the contrary and even if such authority does not specifically appear in the declaration of condominium, articles, or bylaws of the association, levy special assessments without a vote of the owners.”

Section 718.125(2), Florida Statutes goes on to provide that this power “shall be limited to that time … reasonably necessary to mitigate further damage and make emergency repairs.”

So association boards can levy such special assessments at a board meeting to cover the cleanup and repair costs from the hurricane.

For condominium unit owners that have unit insurance, this special assessment can be a bonus to them because under their regular HO-6 Unit Insurance Policy, they have $2,000 loss assessment coverage, which they can recover from their insurer less any applicable unit deductible. Usually, all the insurer requires to pay off such coverage is a copy of the association’s notice of the special assessment levied and maybe a copy of the minutes from the board meeting at which the assessment was levied.

Some unit owners may have purchased higher loss assessment coverage than the $2,000, and some homeowners may have purchased such coverage in their homeowner’s policy.

So if you get a special assessment for hurricane damage, check your unit or home policy to see if you can collect some or all of the special assessment from your unit or home insurance carrier.

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

Some owners looking to blame others after Hurricane Irma

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Many Southwest Florida condominium and homeowners’ association owners suffered damage to their unit, home, cars or other possessions as a result of Irma’s wrath.

While most understand that hurricanes are considered no-fault “acts of God” that caused their damage, there have been a few who what to try to have someone else cover their costs of repairs by trying to find fault with their governing association or their neighbor.

Because hurricane insurance deductibles are high (usually 2 percent of the home’s value or more), most of the damage owners incurred were under their deductible even though maybe in the thousands of dollars.

Rather than eating the deductible costs like most, some owners have tried to concoct reasons why the association or their neighbor was somehow negligent and should pay for their damage.

We have heard some say that the association or neighbor did not properly trim their trees, properly stake down new planting or properly button down outdoor furnishings before the storm and such items were then blown into their home or unit by the storm.

All an association or a neighbor can do before a storm is act in a reasonable manner to minimize storm damage within the short time frame before it appears the area will be hit by a storm. They can, of course, move pool furniture and other movable objects inside or secure them in another fashion. However, they probably do not have time or manpower to remove awnings or stake down new trees.

It would be a rare instance to show that an association’s or neighbor’s conduct before a hurricane would rise to the level of being legally negligent.

Also, if an association’s common area tree or your neighbor’s tree falls on your fence, pool cage or home, the association or neighbor is not responsible for your damage or responsible to remove the fallen tree. You are responsible to remove that part of the fallen tree on your property and fix your own fence, pool cage or home.

If an owner puts in a claim with the owner’s first party insurance carrier, if its carrier believes the association or some other party was negligent before or during a hurricane thereby contributing to the owner’s damage, the owner’s insurer will bring the owner along in any action to recover damage allegedly caused by the association or another.

Owners must realize that Mother Nature is unpredictable, and as we all know now during hurricanes, the damage inflicted does not discriminate. One home may have a large tree fall on it, another may lose part of its roof and other may be flooded, while the neighboring home may have only a little pool screen tears or no damage at all.

So it really is the luck of the draw how much one’s property will or will not be damaged in a hurricane and owners need to understand whatever damage they have is almost always the storm’s fault and not any fault of anything or anybody else. So owners need to repair their property and move on and quit trying to find scapegoats.

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.