Tag: Florida Homeowners Association Attorneys

On July 6, the Washington Post featured an important article on homeowners’ association rules governing exterior changes, and why it is important that they be followed. Many owners ignore processes put in place by an association’s architectural control committee, even though the association’s declaration of covenants requires advance approval before additional or changes can be made—approval processes that are in place for every homeowners’ association, and for good reason.

While the scope of each of these architectural committees varies depending upon the association, most associations have them in order to preserve balance and uniformity within the association. Before each individual owner does any exterior work, they typically have to seek advance approval from this committee so that the committee can preserve a harmonious design for the community and protect the value of the property itself.

Unfortunately, homeowners’ and condo association lawsuits against Florida construction companies and developers for construction defects and other abuses (breach of implied warranties, negligence counts, violation of minimum building codes, etc.) are far too common.

In June, when the “Loft 2” condominium in downtown Miami was constructed with some serious flaws—such as defects in the air conditioning, heating, and ventilation, and malfunctioning fire sprinkler heads—the association filed a lawsuit against the general contractor, Whiting-Turner Contracting Co., as well as a number of associated subcontractors, such as the fire sprinkler contractor, Century Fire Protection Inc., alleging the companies failed to build the condo according to building plans and Florida Building Code standards. Other problems facing the association included defective longitudinal seam welds in the piping, improperly condensed water systems, lack of water treatment, premature unit pump failures, and rusting and scaling of pipes; all of which failed to meet minimum standards. Below, we discuss some of these claims in greater detail.

It seems like every day, there are disputes between homeowners associations and its members, even though these disputes are supposed to be avoided by specific, detailed covenants and restrictions agreements residents agree to when they buy into these associations.

There are always going to be circumstances under which homeowners associations and property managers must take emergency action in order to secure the safety of the entire community. However, as highlighted by a recent news article, residents aren’t always happy about these actions, and sometimes resort to suing the association.

This Particular Proposal

In this particular circumstance, the association found itself in need of taking traffic enforcement into its own hands and proposed sanctioning residents if they were caught speeding because the local police department could not possibly manage the issue on its own, given the breadth of their jurisdiction. Under this proposal, repeat offenders could even have the bar codes that get them into the community suspended, forcing them to wait for a security guard to let them in. A first offense would simply produce a warning, but any other subsequent offense could result in a resident’s barcode being suspended.

A lawsuit that concluded this spring highlights an important potential liability for homeowners associations around the country: playgrounds. One homeowners’ association in particular was hit with a $20 million jury award after a teenager was injured on the property’s playground.

Reportedly, the 42-pound crossbar of the swing set fell on the boy sitting on the swing set due to corrosion at the connection points, causing him serious injuries. Reportedly, not only had the homeowners association previously experienced three swing set failures on this playground, but they also did not arrange for any inspections or regular maintenance.  Unfortunately, the homeowners association only had $2 million in liability insurance coverage, and $10 million out of the total $20 million award was entirely attributed to punitive damages.

Previous Incidents plus Failure to Maintain Equals Trouble

More often than not—especially in states like Florida, where golfing is quite popular—windows within a homeowners’ and condo associations are damaged by the golf balls that fly in from nearby golf courses. In many of these associations, the golf course is private and open to those in the association adjacent to it. When someone buys into the community, they automatically become a member, and can use the course.

When something like this happens, who is responsible; the association, the golfer, the homeowner, or another party? Below, we discuss this liability, and who can be held responsible for it, in greater detail.

Liability Waivers in Association Documents

Most homeowners’ associations are protected in instances like these precisely because they have built a waiver of liability into the associations’ documents and under a legal theory known as “assumption of risk.” The language will typically say something to the effect of “owners assume all risks associated with errant golf balls and hereby agree not to pursue any claims against the association, golf club, or any other party other than the golfer.” Thus, paying for the damage or filing an insurance claim is often the responsibility of the owner.  This is akin to individuals who have residences near airports, but are frustrated by the noise; it can be difficult to successfully file a lawsuit based on that noise nuisance, given that the homeowner presumably chose the home, and knew it was near an airport.

When it comes to figuring out whether a homeowners’ association is liable for damage, it largely depends upon a) what caused the damage and b) the declaration of condominium.

Take, for example, windows in Florida homeowners’ associations that started leaking after Hurricane Irma: As a general rule, any damage done by a hurricane falls on the responsibility of the association and its insurance policy.

The Law in Florida

The Florida Legislature requires lower or stable insurance premiums for associations in order to protect the safety, health, and welfare of Florida citizens. This includes adequate property insurance for full insurable value, replacement cost, or similar coverage, and this includes coverage sufficient to the probable maximum loss for communities for a 250-year windstorm event.

Determining Cause Is Key

However, figuring out if the leaks are actually due to the hurricane—or something else—can sometimes be challenging, and typically requires that the member consult with a professional to determine the cause of the damage. If, in fact, the damage was due to the hurricane, then the association is likely responsible for making repairs and the member would need to cover anything associated with the repair, such as the paint, window coverings, etc.

Tenants filing for bankruptcy is less of an issue for residential landlords, but an increasingly frustrating problem for commercial landlords as we get further into 2018. As a result, it is important—now more than ever—that commercial landlords know what their rights are when it comes to how tenant bankruptcy affects lease agreements.

Rules: Before & After Filing for Bankruptcy

First and foremost, it is crucial to understand that, once a tenant files for bankruptcy, landlords and other parties are prohibited from taking any action against the tenant (i.e. debtor) unless it is first approved by the bankruptcy court. However, if a tenant is in default prior to filing for bankruptcy, and the landlord takes every step required under state law to terminate the lease before they file, the lease is then not subject to the tenant’s bankruptcy case. This is because it is the act of the tenant filing for bankruptcy that imposes an automatic stay against any actions by landlords and other parties (where actions are any activities involving collecting, demanding, or otherwise seeking to recover amounts due).

As attorneys who regularly represent homeowners associations and property managers, we frequently get questions about what the board can do with and without membership approval. These types of questions ultimately come down to distinguishing between what is and is not a “material alteration.”

The general rule is that if the proposed change is a palpable change to the appearance, function, or use of the association property and/or its common element, it constitutes a material alteration. If a homeowners’ association wants to make a material alteration, it must first obtain membership approval. Some examples of material alterations that require membership approval include painting the color of a common area (such as a clubhouse), or placing carports over parking spaces.

What About Landscaping?

There are sometimes questions in the gray areas, such as changes to landscaping. Typically, landscaping decisions are not considered to involve material alterations, and are thus left up to the board’s discretion. This includes decisions involving whether or not certain plant species should be replaced with others, or whether shrubs or vegetarian can be moved, changed, etc.

There are some key differences when it comes to the management of condominium versus homeowners associations in Florida. For example, this includes the ability to charge capital contribution fees, or the one-time charges associated with any transfer of title part of the association. For Florida homeowners’ associations, these fees typically range from $400 to $5,000, and are charged in order to ensure that there are finances in the association’s’ operating account (or capital reserves) once the developer leaves. These fees usually cover between one and three months of the association’s annual assessment amount.

In general, while condominium associations face certain restrictions when it comes to fees like these, homeowners’ associations, conversely, can charge these fees to new owners and/or to process lease applications.

The Condo and Homeowner’s Association Law in Florida

Under Florida law, the state legislature must first approve any fees charged to owners and tenants when it comes to condo associations. While developers can charge these fees to the original purchasers, they can no longer charge them once turnover has occurred. Thus, for example, fees associated with processing a lease or sales application, or transfer fees, cannot exceed $100 per applicant (other than a husband/wife or parent/child, both of which are considered to be one applicant).

The latest developments surrounding a ban that Florida’s Suntree Master Homeowners Association wants to place on allowing sexual offenders and sexual predators to live on the property has made news headlines. This housing restriction sheds light on what rights homeowners associations and other property managers have in terms of setting particular standards for residential developments, and what measures they may take in ensuring that very particular goals are met.

Specifically, the association is asking residents to amend their housing restrictive covenants and approve expanding the zone of protection of city and county ordinances in order to bar sexual offenders and predators from owning or renting there, effectively restricting offenders from residing within 3,000 feet from areas where children regularly congregate (which effectively covers the entire Suntree development). The association’s proposed policy could soon become one of the strictest when it comes to whether or not sexual offenders and predators can be banned from residential developments.