Florida Association News Blog

Home Pool Maintenance With the Florida weather pool maintenance is on our minds every season. Use these tips to help keep your home’s pool in tip top shape.

Check the water level – Due to the summer rains, it is important to make sure that the water is at a safe water level. Make sure to drain the pool when necessary.
Remove debris – A quick way to keep your pool clean is by using a net to clean up debris, twigs and other things that might have fallen on your pool’s surface. It is also important to clean the strainer baskets once a week.
Make sure to have the correct chemical levels – Having correct chemical levels helps decrease the chances of harmful disease and the amount of maintenance necessary. Be sure to test the water at least once a week for chlorine, calcium, P.H., and alkalinity.
Vacuum the pool – To keep the water clear, vacuum your pool every week. This also decreases the amount of chemicals that you need to add.
Shock your pool – Shocking is done by adding a large amount of chlorine to the pool. Increasing the chlorine levels will kill bacteria and odor. It is recommended to shock your pool every one to two weeks depending on how often the pool is used. If you have been making sure the chemical levels are good, shocking should not be needed as often.

by Ashley Dietz Gray, Marketing Director, Campbell Property Management

Tags Florida home swimming pool, Home pool maintenance 1 Comment

1401467101000-hurricane-27 With summer ahead, it’s time to prepare for the heat, storms and humidity that occur in south Florida. It is time to prepare for the hurricane season. It is important that along with your personal and home safety, you also make sure to prepare your landscaping.

Trim your trees – In order to prevent damage, it is important to trim dead or damaged branches from trees, especially of those close to homes or powerlines.
Use mulch instead of rocks – When it comes to material to control weeds, it is advised to use mulch as opposed to rocks or pebbles. Not only will mulch give nutrients to your soil but it is much less dangerous in high winds during hurricanes.
Bring in anything that might be a wind hazard – Things like potted plants and decorations could be potentially dangerous if a storm occurs, make sure to move them inside if an impending hurricane is on its way.
Stake young trees – It’s good to stake new trees and plants in order for them to stay put during storms. Make sure there is not too much tension or they are likely to snap.
Decorative plants – Summer is Florida’s rainy season, which means it is time to take advantage of not having to water as much. Summer is the perfect time to plant ornamental plants. Such plants include periwinkle, portulaca, and caladium “elephant ear”.
Plant herbs that thrive in heat – It’s a good idea to begin planting herbs such as basil, rosemary and cilantro now in order for them to grow in the summer. These herbs also do a great job repelling mosquitos.
Prune your shrubs – In order to help your flowers bloom more, lightly prune any flowering shrubs you might have such as hibiscus and hydrangea.

Use these tip to prepare your home for a beautiful summer in sunny south Florida. Also remember to stay safe outdoors during this hurricane season.

by Keith Carracher, President, Complete Property Maintenance, Inc.

Tags Hurricane Season, Landscaping, Summer No Comments »

In the past, local telephone companies provided telephone services and local cable companies provided cable television services. That was it. For an association, selecting a service provider was relatively easy since quality choices were few. But in recent years, this scenario has changed dramatically for the benefit of community associations. Regulatory changes, Florida state-wide video franchising, new technologies and increased competition from cable, satellite and telephone companies have created new opportunities and confusion for community associations. Plus, with new Internet technologies, communities are beginning to now upgrade to High Speed Internet delivering speeds up to 1Gig via GPON over Fiber from the phone companies and DOCIS 3.1 from the cable companies over existing Coax wiring.

Do we need fiber in our communities or will the existing coax wiring work just as well, in light of new technologies? There are many moving parts, and although time consuming, successfully navigating and sorting through the many options now available is “key” to securing the best Television, Internet and Phone services and pricing for an association community.

Let’s take a look for a moment:

Cable companies offer:

Cable Television · High-Speed Internet · Phone Services · Security Services

Phone companies offer:

Television Services · High-Speed Internet · Phone Services · Security Services

Satellite television and private cable operators offer:

Satellite Television · High-Speed Internet · Phone Services

Condominium and homeowner associations have more options and choices than ever.

Bulk Cable, Satellite, Internet and Phone Agreements:

The most common type of association existing “Bulk Agreement” today is for cable television video services, but Bulk Agreements increasingly now include both Video and Internet service. Who can live without Internet access, and if the vast majority of the residents are already purchasing Internet service, why not include it in the bulk at a substantial discount? A Bulk Agreement is an agreement which provides for the delivery and billing of services, typically for 100% of the units within the association property. It’s basically a “volume discount” in exchange for a multi-year agreement with pre-established service rates and annual rate increases. Although access rights typically remain non-exclusive, non-bulk “Marketing Agreements” on the other hand, generally compensate the association for permitting a service provider to exclusively market their product on the association property.

With multiple providers, bulk and non-bulk options, plus existing contractual rights and obligations, how does an association solicit and select the best options for their community?

It’s sometimes very complicated, but hard work and the assistance of experts will likely garner rewards in the form of improved services and more competitive pricing options for the association. After all, for most associations, a bulk Cable/Internet service bill represents one of the largest financial expenditures for the association community. With this in mind, here are some basic steps an association may want to consider following in order to help make the best decisions for their community:

Start Early:

The earlier an association begins reviewing their rights, obligations and options, the better. A good time to start the process is about +/- 24 months before the current agreement expires. An early start helps to ensure that your association won’t be rushed into making a service and/or agreement decision.

Solicit Multiple Proposals:

Soliciting multiple proposals tends to give associations more negotiating power, which lends itself to providing for more choice, better pricing and service options. Plus, it also determines which options and providers can provide “viable” services and proposal options.

Get Expert Advice and Assistance:

Telecom providers are the experts in their field, and they represent their own interests. Therefore, associations should consider obtaining assistance from professional experts to help “level the playing field” for the benefit of the association. The association’s legal counsel helps to ensure that proposed and final agreements meet the legal needs of the association. On the other hand, professional industry consultants, such as Broadband Agreements Specialists, Inc., are well equipped to assist your association with the project management, proposal solicitation, analysis, board education and service implementation processes.

Your association now has many potential options! Regulatory changes by the FCC, Florida state-wide video franchising, plus new technologies and increased competition from cable, satellite and telephone companies have created new opportunities for associations. Successfully seeking, evaluating and navigating these many options will be your reward, which has the potential to bring financial and service benefits to your association for many years to come!

Jay M. Abbazia, CAM & Florida CAM CEU Provider

Broadband Agreement Specialists, Inc.^®

The article is intended for informational purposes only and should not in any way be relied upon as legal advice. Information in this article may not reflect recent developments or regulatory changes, and may contain errors or omissions. Broadband Agreement Specialists, Inc is not a law firm and does not provide legal advice. It is important and recommended that associations review all agreements and legal documents with qualified legal counsel for an accurate and legally reliable evaluation of rights and obligations. If an association has a legal question, it is recommended that they consult with qualified legal counsel. Broadband Agreement Specialists, Inc. © 2017

For additional information, please visit www.broadbandagr.com or give us a call at 954-889-1967 for a free no-obligation consultation.

Tags Broadband Agreement Specialists, Cable, Internet, Phone services 1 Comment

lawful-_-short-term-rental With little doubt, purchasing a home is one of the most significant investments you can make. In order to help protect that investment, many purchasers choose to buy homes within community associations that include homeowners’, cooperative and condominium associations. Behavior within community associations is governed by a declaration of condominium or declaration of restrictions, along with the bylaws, articles of incorporation and, importantly, and more often than not, the rules and regulations generated by the board of directors. Those of us living within community associations, for the most part, did not sign up to live in a community with transient overnight housing. Yet, if left to the vices of VRBO and AirBnB that is exactly what can happen in your community. Do you know what to look for? Do you know how to prevent this from occurring? What if it is occurring in your neighborhood? What can your community association do about it?

For a variety of reasons, none which are the subject of today’s column, local governments may have difficulty in promulgating local ordinances prohibiting overnight housing offered by VRBO and AirBnB. Therefore, it is left up to your community association’s board of directors to ensure proper measures are in place to prevent homes in your community from becoming the newest unnamed hotel/motel.

At the end of the day, renting property for one night, or six months, should be subject to the covenants and conditions set out in the association’s declaration. In terms of more quickly regulating overnight transient housing, homeowners’ associations have many advantages over that of the condominium association in that there are many circumstances in which the homeowners’ association can adopt rules and regulations prohibiting the transient activity. That said, covenants set out in a declaration which have been adopted by the members have a much stronger presumption of validity and enforceability as compared against rules and regulations adopted by a board of directors. In fact, the condominium association has no choice but to include such prohibitions against transient housing in its declaration of condominium.

More specifically, section 718.110(13) of the Florida Statutes, governing condominium associations, provides, in relevant part, that:

“An amendment prohibiting unit owners from renting their units or altering the duration of the rental term or specifying or limiting the number of times unit owners are entitled to rent their units during a specified period applies only to unit owners who consent to the amendment and unit owners who acquire title to their units after the effective date of that amendment.”

Therefore, if your condominium association does not have covenants already in place to protect against use of any of the condominium units as overnight housing for transient rental purposes, then a vote of the members will be necessary in order to adopt the necessary restrictive covenant(s) to insert into the association’s declaration of condominium to protect against such activity. In the long run, because provisions set out in the declaration of condominium have a greater presumption of validity, the condominium association stands a good chance of prevailing in the event a unit owner challenges the lease covenant. In fact, provisions of a declaration will not be invalidated absent a showing that they are wholly arbitrary in their application, are in violation of public policy, or that they abrogate some fundamental constitutional right.

Nevertheless, as to a homeowners’ association that does not have the necessary covenants set out in the homeowners’ association declaration of covenants to protect against transient housing, rather than having to take a vote of the members to amend its declaration, the board of directors, upon a 14 day board of directors meeting notice mailed to all of the members and posted in a conspicuous place in the community, is able to adopt rules and regulations governing the use of any home subjected to the declaration for transient housing. But, because the rules and regulations are adopted by the board and not adopted by the members of the entire community, then, upon a member’s legal challenge, the outcome is not as clear. Upon such a challenge, the court will analyze whether the board acted within its scope of authority, whether the board exhibited arbitrary or capricious decision-making, and whether the new rule contravenes either an express provision of the declaration or a right reasonably inferred therefrom. Therefore, at the first available opportunity, the membership of the homeowners’ association should be provided the opportunity to approve an amendment to the association’s declaration so that the leasing restrictions are set out in the associations’ declaration of restrictions.

When the association is considering adopting either a declaration amendment or new rule and regulation governing a prohibition against transient housing, the association should also consider at that time updating its entire owner/rental approval process to include prohibitions against purchasers and renters who have committed crimes of moral turpitude, have a history of significant financial irresponsibility, who lie on their sale/lease application, or who do not meet the other requirements such as length of tenancy (e.g., no rentals for less than six months and only one lease per year). These types of issues, and more, should be discussed with the association’s lawyer.

Importantly, the time has come for every community association to regularly monitor VRBO and AirBnB listings to see if homes in your community are being advertised for overnight rental purposes. If so, this should be brought to the attention of the association’s board of directors and manager.

Jeffrey Rembaum, Esq. of Kaye, Bender, Rembaum attorneys at law, legal practice consists of representation of condominium, homeowner, commercial and mobile home park associations, as well as exclusive country club communities and the developers who build them. He is a regular columnist for The Condo News, a biweekly publication and was inducted into the 2012, 2013 & 2014 Florida Super Lawyers. He can be reached at 561-241-4462.

Tags AirBnB, Overnight Rentals, Rembaum Association Roundup, VRBO 3 Comments

Florida-legislature-1 Recently, the Florida legislature has passed three bills set to become law on July 1, 2017, unless vetoed by Florida’s Governor Scott: Senate Bill 398, pertaining to estoppels that is applicable to condominium, homeowners’, and cooperative associations; House Bill 1237, applicable to condominium associations only which provides for numerous new requirements including criminal penalties and onerous and costly website requirements for those condominiums with 150 or more units and so much more; and House Bill 653, which brings more parity to laws governing different community associations, addresses fire sprinkler retrofit, perfects transferring developer rights absent obligations of failed condominium projects, and addresses the rights of board members to communication via email in a way you are sure to like. The far reaching scope of these three bills cannot be explained fully in this short article. Rather, this information is intended as a summary only. Future articles will provide more specific details.

Senate Bill 398 provides for an overhaul of the estoppel issuance process. It provides community associations a mere 10 days to issue an estoppel or forfeit payment for providing it later. Estoppel fees are strictly limited to the statutory limits. The massive amount of information that must be contained in the estoppel is unimaginable. Associations will need to work with their legal counsel to create a template for this massive amount of information that will need to be in the estoppel. This piece of legislation was clearly enacted to benefit realtors and purchasers, only.

House Bill 1237 pertaining to condominium associations only, is, in part, the result of a few bad board members in the Miami-Dade County area for which the entire rest of the state will suffer. Parts of this Bill, by way of analogy, is akin to going to the doctor for removal of a small wart on your finger and the doctor cuts off your entire arm. For instance, there are new criminal penalties for taking kickbacks, forging voting certificates or ballots, and embezzling association funds.

A condominium association, its officers, directors, employees, and agents may not use a debit card issued in the name of the association or building directly to the association for payment of ANY association expense. Doing so can be prosecuted as credit card fraud. These new criminal penalties should not be an impediment to serving on the board absent an individual with malicious intent.

Board members, managers, and management companies may not purchase condominium units at a foreclosure sale resulting from the association’s foreclosure of its lien for unpaid assessments or by taking title by deed in lieu of foreclosure. In addition to the existing requirement that bids for work to be performed be part of the association’s official records, bids for materials, equipment, or services are now required to be part of the association’s official records.

Effective July 1, 2018, a condominium association with 150 or more units must have a secure website for which each owner must be provided a login and password. The website must contain documents including the rules and regulations, the management agreement, all contracts to which the association is a party, summaries of all bids for materials equipment and services, the annual budget, the proposed annual budget, financial reports, proof of board of member certification, and notice of any unit owner meeting and the agenda no later than 14 days prior to the meeting and such notice must be posted in plain view on the front page of the website or a separate sub page of the website labeled notices which is conspicuously visible and linked from the front page. The association must also post on its website any document to be considered and voted on by the owners during the meeting or any document listed on the agenda at least seven days prior to the meeting at which the documents or information within the document will be considered. Also, notices of board meetings, agendas, and any other document required for the board meeting must be posted no later than the date of the regular meeting notice requirements, meaning either 48 hours for 14 days depending on the requirements of the meeting notice. Associations now have an affirmative duty to ensure that no protected information or information restricted from being accessible to unit owners is included in the documents that are required to be posted on the website, and if so, then the association has the duty to ensure such information is fully redacted.

Condominium associations that operate fewer than 50 units can no longer opt out of preparing a report of cash receipts and expenditures simply because they have 50 or fewer units. Rather, they will be minimally required to comply with the financial reporting requirements based upon the total revenues of the association.

Notably, a board member may not served for more than four consecutive two-year terms unless approved by an affirmative vote of two-thirds of the total voting interests of the association, unless there are not enough eligible candidates to fill the vacancies. While not addressed in the legislation, it is oddly apparent that any directors serving only one year terms can serve an unlimited number of such terms. Additionally, the recall provisions have been completely revised which is already causing confusion.

Condominium associations cannot employ or contract with any service provider that is owned or operated by a board member or with any person who has a financial relationship with a board member or officer or a relative within the third degree of consanguinity by blood or marriage of a board member or officer.

Directors and officers of a condominium board and the relatives of such directors and officers must disclose to the board any activity that may be reasonably construed to be a conflict of interest and there are a host of occurrences which gave rise to the need to make such a disclosures that are set out in the legislation.

Provisions are made for lawyers who are board certified in the area of community association law to be contracted by the Division of Florida Condominiums, Timeshares, and Mobile Homes (the ‘Division”) to be arbitrators. This certification was recently approved by the Florida Supreme Court, and the process to become a board certified community association lawyer will begin this summer.

Finally, condominium associations must provide an annual report to the Division containing the names of all of the financial institutions with which the association maintains its financial accounts.

House Bill 653, in part, echoes a few of the provisions in House Bill 1237. It continues to make Chapter 719 of the Florida Statutes, otherwise known as the “Cooperative Act,” more synonymous with Chapter 718 of the Florida Statutes, otherwise known as the “Condominium Act.” Many readers will be happy to learn that board members of both homeowners’ and cooperative associations will be able to lawfully communicate via email, but not vote, as such is already provided for condominium association board members. Needed clarifications were provided to the fire sprinkler and engineered life safety systems requirements and retrofitting of condominiums and cooperatives for those buildings above the 75 foot threshold. For those that are less than 75 feet, it is made clear that they are exempt. The laws governing the transfer of developer rights saw a significant change. The “bulk buyer” laws, that were initially enacted to help rescue failed condominium construction projects by transferring developer rights but not prior developer obligations, were originally intended to “sunset.” The automatic sunset provision of these “bulk buyer” laws were deleted, meaning that failed condominium projects may see a brighter future forever more. Chapter 720 of the Florida Statutes, otherwise known as the “Homeowners’ Association Act,” was clarified to provide that a delinquent member cannot escape their assessment obligation by including a restrictive endorsement on their check, such as “paid in full”.

As to what happens next, Governor Scott can sign these Bills into law, do nothing in which case the Bills become law on their effective date of July 1, 2017, or veto the Bills. Stay tuned for future articles and our upcoming legal update class schedule during which these Bills and others being considered by the Florida legislature will be discussed if and when they become law.

Tags 2017 Legislative Session, Florida Legislatue, HB 1237, HB 653, SB 398 6 Comments

Cyber Security It is always a good idea to maintain security both as individuals and as HOA and condo associations. In this technological age, people are more vulnerable and susceptible to being hacked. Just as you would lock your doors and protect yourself in the real world, it is important to secure your belongings in the cyber world as well.

Make Sure to Change Passwords Often – Every couple of months it is a good idea to change your password; however, it is important that the changes being made are not small ones. Small changes to a password such as a capitalization of a letter are called “transformations” and hackers are very aware of them. Strong passwords should be long and random.
Refrain From Using The Same Password On Multiple Systems/Programs – This is an important tip that many are aware of, however it is imperative to reiterate. If hackers were to acquire that password, they would soon have access to all of your association’s information. In order to keep track of passwords, it is recommended to use a password saving program.
Install And Update Virus Protection Software On All Computers – One of the most common form of security attacks are viruses. These protection software systems will warn you if there is suspicious activity. As well as if you have entered or downloaded a potentially harmful page/file.
Practice Email Security And Be Aware Of Phishing Scams – Use the passwords tips previously mentioned. Emails are often the center of all your accounts, access to your email allows for potential access to other accounts. Phishing scams are a common way to install viruses or other malicious software on your computer. Do not click on links or open files sent from unknown senders and be wary of emails that do not end in common extensions (.com, .gov). Also, do not trust emails asking to click links and threatening action on an account if the link is not clicked, instead go to the company’s website directly.
Only Keep Sensitive Information as Needed – Make sure to only collect information from your community’s residents that is necessary and to get rid of it once it is no longer needed. In case of a breach of data, it is better to have as little information as possible.
Be Aware of Who Has Access to Information – The key is to have the smallest number of people possible having access to sensitive information. Only allow what is necessary for them to do their respective jobs.
Back Up Data – In case there is ever a breach, make sure to have all information backed up to a cloud based file storage system or an external hard drive. In the case of cloud systems, make sure to practice security protocols and when using an external hard drive keep it in a secure place.

These tips can apply to both homeowners and associations alike. Remember it is important to keep safe from any cyber-attacks. Share these tips with employees and homeowners and make sure to protect yourself and your association.

by Dan Tiernan, COO, Campbell Property Management

Tags Cyber Security for your community association, Cyber Security for your Florida Condo, Cyber Security for your Florida HOA 3 Comments

Flat design style modern vector illustration concept of smart house technology system with centralized control of lighting, heating, ventilation and air conditioning, security locks and video surveillance, energy savings and efficiency. Isolated on white background.

Technology has developed rapidly over the last couple of years. New and improved products with the aim to make daily activities easier for us are constantly hitting the marketplace. New “smart” technology is being incorporated into our everyday lives, so much so that houses are now being made with it. SMART stands for “Self-Monitoring Analysis and Reporting Technology,” it monitors and analyzes hard drives and notifies you of any problem.

Smart homes are defined by their ability to provide owners with an advanced automation system, allowing them to monitor and control their homes inside and from a distance. The system works over the internet and can control all the functions applied through a tablet, a computer or phone whether you are at home, at work or at the airport. Lighting, temperature, multi-media, security, window and door operations are just a few features that can be controlled through this system.

No more worries

If you are at work or away on vacations you do not need to worry whether you have turned off the stove, locked the door or if your home is being intruded by a burglar. Your smart home will take care of all of this. In case of a fire, a smart home has the ability to:

Detect fire and alert you
Unlock the doors
Light the path to outside
Call the fire department while you make your way to safety

Time saver

Smart homes have the capability to make various aspects of your life more convenient by:

Controlling technologies such as lights, entertainment, washing machine, and thermostat
Feeding the dog
Watering plants
Having the refrigerator suggest menus, healthy alternatives and order groceries

The future of Smart homes

Most existing homes have built-in features, like a smart-hub control or add-on features, such as a connected home theater. In this case they are not recognized as smart homes even though they contain many automated built-in features.

In Florida, the home construction industry is growing, giving the smart home market a chance. The price of the new “smart” wiring has not stopped the growth of the smart home market. According to ABI Research over 1.5 million smart homes systems are installed in the United States.

Florida along with Texas is the smart-security stronghold. Security systems, thermostats and lighting automation are the three main functions homeowners are looking for in a smart home. Realtors are getting educated about smart home technology and are encouraging new home owners to have at least some form of smart system installed in older homes.

Looking at the consumers’ growing need for security and luxury there is no doubt that smart homes are the future of Florida.

By Matt, The Cool Roofing Company

Tags Smart Homes No Comments »

Fotolia_98949532_Subscription_Monthly_M-300x226 Senate Bill 398 (“SB 398” or “Bill”) sponsored by Senator Passidomo is making its way through the Florida legislature and is a step closer to being passed into law. This Bill puts the needs of Florida’s community associations behind that of its member-sellers (especially those who are delinquent in their assessment obligations, those who have existing fines and those who are in violation of the covenants), plus, real estate brokers and realtors, lenders, and everyone else involved in the purchase sale process. It’s truly amazing with over one million condominium units in the state, let alone the shear number of homes within homeowners’ associations, that the needs of the association are in last place.

As to the contents of the estoppel, in addition to providing information regarding whether or not the owner is delinquent in their assessment obligation, an association will be required to also include:

information regarding parking spaces and storage lockers,
whether special assessments and other monies are scheduled to become due after issuance of the estoppel during the effective period of the estoppel which is required to be either 30 or 35 days, depending on the delivery method of the estoppel,
whether there is a violation of the rules and regulations,
a list of utilities provided with the unit,
a list of all recreational or land leases,
a description of all active litigation or administrative proceedings,
contact information for all insurance maintained by the association,
a list and contact information for all other associations for which the seller is a member.

In other words, the association is required to perform the role of the closing agent and not get properly paid for it.

The most an association can charge for all of the above information is $200 and up to $400 if the owner is delinquent. If a request is made for a “rush,” then, so long as the association provides all of the above information within three days from the date of the rush request, the association can charge an additional paltry $100. There also specific unfair limitations on the amount that can be charged when an owner owns multiple units, too. To add insult to injury, the association is provided only ten days to provide this information. If the estoppel is issued between days 11 and 15, then the association is not allowed to charge any fee whatsoever estoppel’s issuance. If greater then 15 days have passed since the request was received and estoppel issued, then the buyer becomes fully immune from all back assessments obligations, plus full immunity for new assessments of any kind that become due during the effectiveness of the estoppel (that being at least 30 or 35 days from issuance), plus full immunity for all existing violations against the unit. The association is prohibited by Senate Bill 398 from being prepaid for providing all of this information. Rather, the association must wait to get paid from the closing. But, if the closing does not occur, then the seller becomes responsible to pay the estoppel fee.

There are certainly unforeseen consequences of SB 398 should it be passed into law. Let’s say a seller, who is delinquent in their assessment obligations, owes fines, and has pending violations for failure to abide by the governing documents, is trying to sell their property, and their buyer requests an estoppel. For one reason or another, the estoppel does not get issued by the associaiton until 20 days after the request was made and ultimately, the deal fails to close. Does this mean that, because the estoppel was untimely issued, the seller is not responsible for the estoppel fee and the seller is no longer responsible for the delinquent assessments, fines and violations? Moreover, if an owner is already delinquent in their assessment obligations, and the closing falls through, then even though Senate Bill 398 would make the owner responsible for the estoppel fee, from a practical perspective, the chances of the delinquent owner actually paying this new obligation is, pretty much, ZERO. Senate Bill 398 also fails to provide that when the seller fails to pay the estoppel fee, that the failure to pay is a lienable expense. This works to the extreme detriment of the association, too.

Albeit, there are problems with the already existing estoppel legislation, but Senate Bill 398 will create even more problems. Let’s put this proposed legislation into proper context. Our government cannot see fit to regulate prescription drug costs that can make a difference to a senior citizen who must decide between food and medicine yet, our government is willing to price fix the cost of an association estoppel. Even a lobotomized angle-worm could figure out that Senate Bill 398 is bad for Florida’s community associations.

Please speak up now and speak up loudly. Demand your legislators vote NO to Senate Bill 398!

Tags Bill 398, Estoppel, Florida Legislature 8 Comments

HOA-Rules As often happens when a community association enforces its covenants and rules and regulations against an owner, the owner responds to the association saying, “The house down the street is in violation with the rules and regulations, too! Why aren’t you sending them a demand letter?” When this happens, the owner is invoking the defense known as “selective enforcement”.

Selective enforcement is a claim made by the defending-owner that the association is unequally and arbitrarily enforcing the association’s restrictions against them. Ultimately, should the matter proceed to litigation, the defending-owner has the burden to their selective enforcement defensive.

A common mistake in proving the selective enforcement defense is that the defending-owner fails to make an apples-to-apples comparison. For example, an owner defending themselves against a violation for failing to park their car head-in in the association’s parking spaces cannot claim that the association is selectively enforcing the restrictions against the owner because the association has allowed trucks, which are otherwise prohibited, to park in the association’s parking spaces.

While the owner in the January 25, 2017 decision of Florida’s Third District Court of Appeal in the case of Laguna Tropical, A Condominium Association, Inc. v. Barnave did not make this common mistake, common sense and proper enforcement of the association’s restrictions prevailed.

At issue in the Barnave case was the enforcement of two restrictions: (1) a requirement to obtain the prior written consent of the association’s board of directors prior to altering, modifying, or replacing the interior of a unit, and (2) a prohibition on the installation of any type of flooring except carpeting, unless otherwise approved by the association and with the required installation of noise and sound abating materials.

The unit owner in this case, who owned an upstairs unit in a two story condominium, leased her unit to a pet owner, whose pet damaged the carpeting. In preparing the unit for a new tenant, the unit owner replaced the damaged carpeting with laminated flooring. Not long after the laminated flooring was installed, the resident in the unit located directly below the new tenant complained about the noise coming from the upstairs unit. The association then sought enforcement of the abovementioned restrictions against the unit owner and the new tenant. After unsuccessful enforcement attempts, the association filed a lawsuit against the unit owner and the new tenant seeking injunctive relief against the owner and the new tenant.

At trial, the unit owner successfully defended against the association’s enforcement efforts by claiming selective enforcement of the flooring restrictions. The association then appealed the trial court’s decision. (In and of itself, this author finds it troubling that the trial court could reach such a decision given the findings presented by the appellate court, discussed below.)

On appeal, the unit owner argued that the association selectively enforced the flooring restriction on only 11 of the condominium’s 94 total units. However, as explained by the appellate court, the association could only enforce the flooring restriction on these 11 units because these were the only upstairs units within the condominium for which the noise created by improperly insulated flooring would be an issue. The remaining units were either downstairs units or two-story units for which noise abating flooring is not an issue.

Further, the appellate court found that of the prior noise complaints received by the association from residents of downstairs units, the association had successfully enforced the flooring restriction upon the offending upstairs units, and that there was no evidence to show that the association had declined to enforce a noise complaint from a resident of a downstairs unit based upon replacement of carpeting with tile or wood flooring.

Based on common sense and responsive enforcement by the association, the appellate court reversed the trial court’s decision and held in favor of the association. This case, although in the win category for community associations, is a reminder to boards of directors to uniformly and fairly enforce the covenants, restrictions, and rules and regulations of their association.

Tags rules and regulations in condo No Comments »

Tags 4 Comments

Maintaining Your Florida Home’s Swimming Pool

Prepare Your Landscape For The Upcoming Summer and Hurricane Season

Cable TV … Internet … Phone Services Coax, Fiber Optics and More … There are New Opportunities for Community Associations!

Rembaum’s Association Roundup: Florida’s Newest Non-Native Invasion – Overnight Rentals

Rembaum’s Association Roundup: A Busy 2017 Legislative Session – Change Is In The Air

Cyber Security for your Community Association

Are Smart Homes Becoming A Reality in Florida?

Rembaum Association Roundup: Proposed Estoppel Bill 398 – Unfair And Inequitable To Community Associations (Sorry Folks, This Is Not Fake News)

Rembaum Association Roundup: Selective Enforcement: Common Sense Prevails

Fun Fridays: Reserve Funding

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