Homeowners Associations

Condominium Associations

Most associations should have 5 directors

We see a few Condominium or Homeowners’ Associations with only three directors serving a one year term and some larger Associations with seven or nine directors.

There is a benefit to larger Master Homeowners’ Associations, with many neighborhoods and condominiums, to have many directors so that each of the various sub-communities have a representative on the master board.

However, for the vast majority of Associations five directors is the best number because you can obtain a quorum of the board and have a board meeting if only three directors show up.

Some smaller Associations say it is difficult to get more than three directors because of apathy in the community. However, having only three directors can be a major problem because a quorum is then only two directors. Then, if two directors meet at the pool, in the social room, in each other’s units, or on the telephone and discuss Association business, such acts could be considered to be an illegal board meeting. Under the Florida Sunshine Laws contained in the Florida Statutes, when a quorum of the board meets and discuss Association business (in this case two directors), the meeting is considered an official board meeting and must be noticed at least 48 hours before the meeting and the meeting must be open to all the members. This of course could be a real problem when the two directors believe they are just getting together socially, to play golf, or just to talk on the phone.

To avoid such a Sunshine Law problem, having five directors is much better because it then takes three directors to get together discussing Association business to have a quorum and therefore a board meeting.

Next is the issue of having one year terms of director verses two year staggered terms. With a five member staggered board, three directors will be elected one year to serve two year terms and two directors will be elected the following year to serve two years terms then and so on and so on.

The beauty of staggered terms is that you will get a continuation of service and directors with knowledge of Association business staying on the board each year which allows for a much smoother operation of your Association year to year and the new board not having to reinvent the wheel every year.

If your Association does not already have five (5) directors with two year staggered terms and you want to move to this set up, you will probably have to amend your Association’s Bylaws to provide for such.

Some of you may be aware that a new law was passed last year imposing eight year term limits on Condominium Association directors. There were differing opinions as to whether the eight years included years served before the law become effective 7/1/19 or only years served by directors elected after 7/1/19.

The division of condominiums in Tallahassee finally have said that they see the law, as do most Condominium attorneys, is that it provides that the eight years term limit does not start until a director is elected, or starts to serve, after 7/1/19 no matter how many years the director may have served before 7/1/19. It is difficult for many Associations to find good members willing to serve on their Association’s board. Therefore, hopefully the Legislature will be wise and repeal this eight year limitation before 2026 when some good directors may start reaching their eight years max.

Informative Trade Show coming up: South Gulf Coast Trade Expo & Taste of the Expo; 106 Vendors and 8 Food Court Restaurants; Free parking, free admission, free food court; 2 free classes: Legal Update and Board Certification. A fabulous service and products trade show for CAMs, Association Board Members and Homeowners. Friday, April 3rd from 9 am to 1 pm at Alico Arena, on the grounds of SGCU in Fort Myers. Register at www.southgulfcoastchaptercai.com.

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

Keeping drones from being a nuisance in your community

We keep hearing that delivery companies will soon be delivering packages to our doorsteps by drones. Developers and realtors are using drone footage as marketing tools. Hobbyist and kids are flying them around in their spare time.

How should your Condominium or Homeowners’ Association handle the growing number of drone use from becoming a nuisance in your community?

While some board of directors just say they want to ban drones in their community, this is easier said than done as flying vehicles (such as airplanes or helicopters) have the right to fly over your community’s airspace and there are a lot of benefits to having as described above to having drones around.

So, rather than trying to prohibit drones, we suggest that community associations have their owners approve amendments to their governing documents to allow them as long as they are flown legally and do not unreasonably disturb the residents.

As for flying legally, drones can be defined as powered, unmanned, aerial vehicles that use aerodynamic forces to provide vehicle lift, can fly autonomously or be piloted remotely, and designed to be recoverable. The drones need to 1) be registered with the FAA, to the extent required, 2) be operated by an individual duly licensed by the FAA, to the extent required and 3) be flown and utilized only in accordance with the FAA and other applicable governmental requirements.

As for not disturbing the residents, the drones need to 1) be flown within the community in a manner not to interfere with an owner’s reasonable expectation of privacy, 2) not utilized in any fashion to spy or otherwise peer or take pictures into the residence of another owner’s property, 3) not utilized to harass any person with respect to private property or to the Association’s common property and 4) not utilized in a manner to cause injury to person or property.

It is good to add language to the amendments that make the operator of a drone liable and solely responsible for any injury to person or property which results from the use of such drone. If the operator fails to comply with the new amendments, the person shall constitute a nuisance and violation of the regulations.

To protect the association, the new regulations should provide that the association is not a guarantor or protector of an individual’s right to privacy with respect to any drones that are flown in the community and that the association will only undertake actions under the regulations if the association representatives have direct knowledge and evidence of a violation or following receipt of a written claim from an offended resident and subsequent inspection by the association and determination of a violation.

New technology develops much quicker than the legal rules and regulations that come slowly after once an issue arises, privacy is invaded, property is damaged or persons get hurt by it. That is why it is prudent to get ahead of the curve so your residents who use or are affected by the new technology will clearly understand what their legal rights and obligations are in relation to the new technology. Adopting such drone rules and regulations should help keep the peace in your building or neighborhood.

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

New directors must sign the form or go to class

Last month we talked about what owners must do to run for the board in a Condominium or Homeowners” Association. This month we will discuss what document a newly elected or appointed director in a Condominium Association, Cooperative Association, or Homeowners’ Association must sign to be in compliance with State Law requirements.

Florida law says that new directors must either sign a new director certification form or attend an educational class and obtain a certification of completion form.

Section 718.112(2)(d)3.b., Florida Statutes provides that: “Within 90 days after being elected or appointed to the board of an association of a residential condominium, each newly elected or appointed director shall certify in writing to the secretary of the association that he or she has read the association’s declaration of condominium, articles of incorporation, bylaws, and current written policies; that he or she will work to uphold such documents and policies to the best of his or her ability; and that he or she will faithfully discharge his or her fiduciary responsibility to the association’s members. In lieu of this written certification, within 90 days after being elected or appointed to the board, the newly elected or appointed director may submit a certificate of having satisfactorily completed the educational curriculum administered by a division-approved condominium education provider within 1 year before or 90 days after the date of election or appointment. The written certification or educational certificate is valid and does not have to be resubmitted as long as the director serves on the board without interruption. 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. The board may temporarily fill the vacancy during the period of suspension. The secretary shall cause the association to retain a director’s written certification or educational certificate for inspection by the members for 5 years after a director’s election or the duration of the director’s uninterrupted tenure, whichever is longer. Failure to have such written certification or educational certificate on file does not affect the validity of any board action.”

Similar language is provided in Chapter 720, Florida Statutes for Homeowners’ Associations and Chapter 719, Florida Statutes for Cooperative Associations.

Even though the new director certification forms says that the director has read “all” of the association’s governing documents (most directors never have read all of their governing documents and never will- nor has their Attorney), there is no penalty under the Statutes for signing the document and not actually reading the governing documents.

Similarly, for the few directors who chose to go to a class, there is no requirement to pay attention or take or pass any test. As long as the warm body director shows up, he or she will get a certificate of completion.

As long as one of the two forms (new director certification form or certification of completion of educational class) is turned into the Association within 90 days of the election or appointment to the board, the director qualifies to be on the board.

So that the qualification requirement for directors does not become an issue at your condominium, cooperative or homeowners’ association, all of your directors should sign a director certification form at your organizational board meeting following your annual meeting this season. You can get such a form from your Association attorney if your manager does not already have one. The association Secretary should then keep the signed forms along with the other Association records.

It is very interesting that the State of Florida makes unpaid volunteers willing to serve on their association’s board go through this mindless routine of signing these forms and filing them with the association’s records.

Even if a new director forgets to sign a form and is therefore “suspended” from the board, the suspension can be lifted in just a few minutes by giving the director the form and then putting it in the file. So this “sign da papers” law is really a form over substance needless imposition on volunteers care of the State.

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

Be prepared for annual election of board members

The first quarter of the new calendar year, also known as “season” is coming up and this is the time that most condominium and homeowners’ associations have their annual meetings and annual election of directors because the most residents are in town.

If you live in a condominium, at least 60 days before the annual meeting/scheduled election, the association must mail a first notice of the date of the election and a unit owner or other eligible person desiring to be a candidate for the board must give written notice of his or her intent to be a candidate to the association at least 40 days before the scheduled election. The candidate can also provide a candidate information sheet (resume) within 35 days before the scheduled election.

It is very important that a candidate makes sure that the association receives the notice of intent to be a candidate on or before the 40 day deadline. If the candidate misses the 40 day deadline, even by one day, the candidate cannot be on the ballot nor automatically be on the board if less intents are received than there are open seats for election.

If there are more intents to be a candidate received than there are director seats coming open for election, then there will be a ballot and election at the annual meeting. The ballot has to be sent to all owners, along with a second notice of annual meeting at least 14 days before the annual meeting/election.

If there are less intents to be a candidate received than there are director seats coming open for election, then the candidates who got their intents to the association before the 40 day deadline will automatically be on the new board.

For homeowners’ associations there is no requirement for first and second notices of annual meetings. The election of directors, if one is required must be held at, or in conjunction with the annual meeting or as provided in the governing documents. The notice of annual meeting must also be sent to all members at least 14 days before the meeting. The election must be conducted in accordance with the procedures set forth in the governing documents of the Association and all qualifying members of the association are eligible to serve on the board and a member may nominate himself or herself as a candidate for the board at the annual meeting.

However, if the election process of the homeowners’ association allows candidates to be nominated in advance, then the association is not required to allow nominations at the annual meeting. For this reason, many homeowners’ associations will adopt election process rules that will mirror the process used in condominium associations (60 day 1st notice, 40 day intent to run deadline, 35 day information sheet deadline and 14 day 2nd notice), so that candidates must put in their notice of intent to be a candidate at least 40 days before the annual meeting/election. Once the homeowners’ association has adopted such election process rules, there will no longer be any surprise nominations for directors from the floor at the annual meeting.

It is instructive to know who is qualified to be a candidate for the board. For most condominium and homeowners’ associations, the bylaws provide that a candidate must be a member of the association. However, some bylaws do not require directors to be members so they could have a non-owner Manager, CPA, Attorney or Engineer, tenant or golfing partner be a director.

A candidate must be eligible to be a candidate to serve on the board of directors at the time of the deadline for submitting a notice of intent to run in order to have his or her name listed as a proper candidate on the ballot or to serve on the board. A person who has been suspended or removed from the board by the division of condominiums or who is delinquent in the payment of any monetary obligation due to the association, is not eligible to be a candidate for board membership and may not be listed on the ballot. A person who has been convicted of any felony is not eligible for board membership until such felon’s civil rights have been restored for at least 5 years of the date such person seeks election to the board.

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 to prevent bad actors from slipping into your community under radar

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

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

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

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?

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.