Florida Association News Blog

Roof tops Does your building have a rooftop lease agreement with a wireless carrier or does your association have a telecommunications tower lease agreement?

The major wireless carriers (Verizon Wireless, AT&T Wireless, T-Mobile, and Sprint) are actively seeking rent reductions to their existing site lease agreements. The carriers often hire a third party company, who contacts the building rooftop owner or tower owner and attempts to negotiate a rent reduction to the existing lease agreement in exchange for a longer “guaranteed” term and several other “not-so-pleasant” leasing conditions, such as the tenant modifying contract terms without paying increased rent to the owner. Has your association or have you been contacted to renegotiate your rooftop lease agreement(s) or even sell your existing lease agreement outright? Do you know what the correct value of your lease agreement is? Do you know if selling your existing lease agreement is the correct choice?

When drafting a lease agreement with any of the wireless carriers do you know what to look for and what to accept and what to reject? Is it wise to accept an annual payment of rent rather than a monthly payment of rent? What should the annual escalation be or is it wise to consider a term escalation? Should the agreement permit “site improvements?” These questions and more need to be answered correctly when constructing a lease agreement with the wireless carriers and it would be wise to construct a binding document so in the future, when an amendment is required, it will be a rent increasing opportunity for your community.

Converged Connect provides guidance in reviewing and constructing lease agreements, license agreements, amendments, and letters of intent with the major wireless carriers for more than 20 years to ensure contract terms are in the best interest of your association and community.

by Michael Davis, Converged Services Inc., Michael can be reached at mdavis@convergedservicesinc.com or (610) 613-9969.

Tags Condo Rooftop Lease agreements, CSI, Rooftop Lease Agreements, wireless carrier No Comments »

Happy holidays to you and your family! As the year comes to a close, holiday season is reaching it’s peak and cooler temperatures are beginning to reach the sunshine state. Most South Florida landscapes will do fine in a “normal” Florida winter, however unexpected below-average temperatures may do damage to some of your plants.

With that being said, it’s important to know how to properly care for your lawn during the winter months.

Here are a few South Florida Winter landscaping tips you should consider to keep your lawn in tip top shape for the winter season:

As the holiday season ends, take care when removing any festive lighting and/or decorations. Be careful to safely disconnect any power cords, take precaution when removing elevated decorations, and remove decorations from vegetation with care to not harm the plant, bush, etc.
If you wish to add some color to your outdoors, add poinsettias to your landscape. These bright red plants are a favorite for this time of the year and go well in most settings. A few places you might want to consider are your community clubhouse, guardhouse, or even pool area.
Add mulch wherever your lawn permits. Mulch moderates soil temperatures, helps sustain soil moisture, inhibits weeds, reduces soil erosion, and can even help improve the soil. Mulch acts as a great heat insulator, helping to keep your plants warm during the cooler nights.
To prepare for the colder weather, fertilize your grass in order for it to sustain the winter temperatures. Well-fertilized grass will be able to handle the colder temperatures better and will survive longer.

How do you prepare your lawn and landscaping for the colder temperatures? Let us know in the comment section below!

by Shane Humble, President, Complete Property Maintenance, Inc.

Tags CPM, Florida Condominium, Florida HOA, Landscaping, South Florida, Tips, Winter Season No Comments »

Our condominium association clients frequently ask whether they can charge “a new owner fee” or a “working contribution” or “capital contribution” to buyers of a unit. We respond “no.” After our condominium clients get over the initial shock we didn’t provide the usual lawyer answer, “it depends,” the next question usually is “why not”, or “but a neighboring association does – how come they can and we can’t.” This is where the lawyer responses start. For example, we usually say “well, it’s complicated”, or “is your neighbor an HOA?”

WHEN DID THE CONDOMINIUM ACT GET SO COMPLICATED?

Once upon a time, the Florida Condominium Act and the case law interpreting it could be read in less than a day. Those days, however, are long since gone. Fortunately, we have all kept up with the latest developments in the law (see our 2018 legal update!). But seriously, getting back to whether a condominium may charge a buyer a fee in connection with the transfer of a Unit, Section 718.112(2)(i) of Florida’s Condominium Act is one of the clear provisions in what is now pages and pages of statutes. This section states:

(2) REQUIRED PROVISIONS.—The bylaws shall provide for the following and, if they do not do so, shall be deemed to include the following:

(i) Transfer fees. —No charge shall be made by the association or any body thereof in connection with the sale, mortgage, lease, sublease, or other transfer of a unit unless the association is required to approve such transfer and a fee for such approval is provided for in the declaration, articles, or bylaws. Any such fee may be preset, but in no event may such fee exceed $100 per applicant other than husband/wife or parent/dependent child, which are considered one applicant. However, if the lease or sublease is a renewal of a lease or sublease with the same lessee or sublessee, no charge shall be made. The foregoing notwithstanding, an association may, if the authority to do so appears in the declaration or bylaws, require that a prospective lessee place a security deposit, in an amount not to exceed the equivalent of 1 month’s rent, into an escrow account maintained by the association. The security deposit shall protect against damages to the common elements or association property. Payment of interest, claims against the deposit, refunds and disputes under this paragraph shall be handled in the same fashion as provided in part II of chapter 83. (emphasis added).

As you can see, Section 718.112(2)(i) clearly and unambiguously prohibits a condominium association from charging a fee “in connection with the sale, mortgage, lease, sublease, or other transfer of a unit” with one exception. The only exception to the blanket “no charge” prohibition “in connection with” the sale of a condominium unit is a $100.00 “application fee”. There is no similar prohibition in Florida’s Homeowners’ Association Act – yet. That’s it you say!? But a background check costs $150.00! We know. We understand. But apparently the Legislature has not been informed that inflation is still alive and well and that maybe it’s time to increase that $100.00 fee to some more reasonable amount.

Even an increase to the allowable application fee, however, would not authorize charging “capital contributions”, such as one or two quarters of assessments, to offset operating expenses, or to fund reserves. When you get back to one of the core fundamentals of the condominium entity you will see why amending the declaration to require a “capital contribution” to buyers of a unit violates the Condominium Act. When a condominium is created, Section 718.104(4)(g) requires the declaration to state the percentage or factional share of liability for common expenses of the condominium for each unit. Common expenses are defined as all expenses incurred by the Association in the performance of its duties. Charging a “capital contribution” to a buyer of a unit operates to change the fractional or percentage share for common expenses stated in the declaration for that unit.

So, why can’t we pass an amendment anyway to provide an exception to this? Well, it’s complicated… Section 718.110(4) prohibits amendments to a declaration that change the proportion or percentage by which the unit owner shares the common expenses of the condominium unless the record owner of the unit and unless all the record owners of all other units in the same condominium approve the amendment. So, an amendment for this type of charge is not feasible because every time a “capital contribution” is charged you would arguably be changing the percentage or fractional share of liability for common expenses each time the fee is charged.

SO WHAT SHOULD WE DO?

So what should a condominium association do to help raise much needed cash without levying special assessments? For starters, we recommend to our association clients that they have a reserve study performed every three to five years. We also recommend that if your association is not fully funding reserves, then the association should establish a plan to move toward fully funded reserves, otherwise the old adage “you can only kick the can down the road so far” will surely come back to haunt your association. As many condominium buildings in South Florida approach or have surpassed their 40^th birthday, condominium boards are struggling with retrofits, upgrades, and deferred maintenance projects and trying to figure out how to pay for those projects because reserves are underfunded. Also, by waiting as long as possible to deal with the inevitable, suddenly hasty decisions have to be made, such as hiring contractors and engineers without having the opportunity to fully vet them or send association counsel their proposals or contracts for review.

Wait a minute, I thought I asked a simple question – why can’t we charge a capital contribution simply because we are a condominium. Like we said in the beginning, it is simple, but then it gets complicated.

by Steven R. Braten, Shareholder and Paula S. Marra, Senior Associate, Rosenbaum PLLC

Tags Capital Contricution, Fees, Florida Condominium, Florida Condominium Act, Legal, New owner 2 Comments

The dog barks, and the parrot squawks. A neighbor is cooking with too much garlic, again. An owner is smoking non-stop on their balcony making it unpleasant for everyone else. A neighbor, several neighbors, or even many neighbors are complaining to the board. What is a community association board to do?

In dealing with any possible nuisance, the board should first decide whether or not the activity in question constitutes a “nuisance.” Bear in mind, an individual’s personal hypersensitivity to another’s activity is not a nuisance. Ask yourself, if you were the ordinary person, a judge or a member of the jury, do you believe that the conduct in question is so noxious that it truly rises to causing a nuisance? Is it only one person, or family, that is bothered by the alleged noxious activity or is it half of the community? Singular neighbor to neighbor disputes are not a matter for the board to contend. The board should not put itself into a position as the “referee.” Arguably, the only time a board may be obligated to act in a neighbor to neighbor dispute is when a Fair Housing Act violation occurs or when the board has actual knowledge of a life-threatening activity taking place.

In the event the board determines that a nuisance is actually occurring, then it is time to act. The board, typically through the manager, should first send a letter to the offending owner alerting them to the nuisance behavior, explain how the behavior is creating the nuisance and importantly, provide the specific relief sought. The letter should be firm, but not over-the-top. Ask yourself, if you were the owner causing the nuisance behavior and you received the letter from your association, would you respond in a positive manner? Remember the golden rule, to treat others as you wish to be treated.

After sending the initial letter, the dog still barks, and the parrot still squawks. Now what? Well, it is time to consider other measures such as fining and use right suspensions. Pursuant to legislation first enacted in July 1, 2015, the board, at a properly noticed board meeting, must set the fine or use right suspension. However, before a fine or suspension can be imposed against the offending owner, a 14-day written notice and opportunity to appear in front of the grievance committee (a/k/a the “fining committee”, the “rules committee”, the “violations committee”, etc.) must be sent to the owner. If the grievance committee does not agree exactly with the board’s prior decision to fine and/or suspend use rights, then the fine or suspension may not be imposed. If the grievance committee does so agree, then the offending owner must be provided with written notice of such decision.

If the nuisance continues, another tool that is available to community associations is the filing of a lawsuit against the owner causing a nuisance. In some instances, it may be necessary for condominium associations to file an arbitration action with the Division of Florida Condominiums, Timeshares, and Mobile Homes. For a homeowners’ association, before filing a lawsuit, the association must comply with mandatory mediation requirements set out in Chapter 720, Florida Statutes.

If the arbitration or mediation, as the case may be, is not successful in curbing the nuisance behavior, then it is time to seek relief by filing a lawsuit in the local Circuit Court asking for an injunction to curtail the behavior. Obviously, the board will need to discuss this situation, in advance, with the association’s legal counsel.

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 fair housing act, Legal, Neighbors, Nuisance, Pets, Rembaum Association Roundup No Comments »

On May 20 2009, just after the peak of the national foreclosure crisis, a federal statute was enacted to help protect a residential tenant who was renting a unit subject to foreclosure from being evicted without being afforded a reasonable amount of time to find alternative housing.

The federal law was known as “Protecting Tenants at Foreclosure Act of 2009”. It generally provided that a bona fide tenant was authorized to remain in a residential unit that was acquired by a new party through foreclosure for the balance of the unexpired term of the lease, unless the unit was acquired by a party that intended to occupy the unit, in which case the tenant was authorized to remain in the unit for ninety days after receiving a notice to vacate.

For purposes of the federal law, a “bona fide tenant” was a tenant who was not the mortgagor or the parent, spouse, or child of the mortgagor and who was under a lease that was the result of an arms-length transaction where rent was not substantially lower than fair market value.

The federal law assured that residential tenants would have a reasonable amount of time to plan and find alternative housing after the unit they were renting was foreclosed and acquired by a new party. However, it also assisted community associations in finding desirable tenants to rent units they owned through the foreclosure of the association’s assessment lien for a fair market value, which then helped the association recoup unpaid assessments and bad debt otherwise attributable to the unit.

The protections of the federal law were intended to “sunset”, which is a term meaning ”to expire”, on December 31, 2012. However, the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act) later extended the sunset date to December 31, 2014. Once the federal law finally expired on January 1, 2015, tenants of residential property in Florida no longer had any special protection from eviction by parties acquiring such units by foreclosure.

Then, approximately six month later, the Florida legislature adopted its own version of the law as part of the Florida Residential Landlord and Tenant Act. Specifically, section 83.561, Florida Statutes, became effective on June 15, 2015, and provides that “if a tenant is occupying a residential premises that is the subject of a foreclosure sale, the purchaser named in the certificate of title is permitted to give a tenant a thirty day notice to vacate and the tenant must comply”. Therefore, as of June 15, 2015, residential tenants had a much shorter timeframe of thirty days’ notice to vacate a unit acquired by foreclosure.

Finally, on June 23, 2018, the federal Protecting Tenants at Foreclosure Act became effective again. It no longer contains any sunset or expiration date; so it is here to stay. Since a federal law will supersede a Florida law when it is more stringent, the provisions of the Federal Protecting Tenants at Foreclosure Act giving tenants more time to vacate residential property after it is acquired by a new party through foreclosure will apply to transactions in Florida despite the shorter timeframe provided by state statute.

Tags Eviction, Foreclosure, Legal, Rembaum Association Roundup, Tenant No Comments »

As happens far too often, contractors bid on an improvement project, start the work, only to later walk off the job. The contractor might do this for one of many reasons: the job was not bid correctly, prices go up, the laborers demand more money, and anything else that leads the contractor to believe they will make less in profits than expected. Now, the association is left with a partially completed project, leaving the property unusable, with no contractor to complete the work. What should the board do in this situation? How does the association evaluate its damages against the contractor who walked off the job? Such questions were forced to be addressed by single family homeowners in the case of Forbeses v. Prime General Contractors, Inc., decided by the Second District Court of Appeal of Florida in an opinion filed on September 7, 2018.

In this case, the Forbeses contracted with Prime General Contractors, Inc. (“Prime”) for the complete renovation of their home. The contract required that the Forbeses pay Prime the total amount of $276,000 in separate payments due at five defined milestones of the project: (1) 25% due upon signing the contract; (2) 25% upon completion of demolition; (3) 25% upon completion of the “dry-in” stage of construction; (4) 15% after roofing and siding installation; and (5) the remaining 10% upon completion of construction. The construction contract also provided that “any alteration or deviation from the contract must be made in writing and signed by both Forbeses and Prime.”

The construction contract was signed, and Prime began the necessary demolition, requiring the Forbeses to pay the first two milestone payments in the total amount of $138,000. After demolition was completed, Prime informed the Forbeses that the cost of the materials needed for the project had increased requiring an increase in the cost of the project to $550,000. Prime demanded that the Forbeses immediately pay the third milestone payment and an additional $31,450 for the work Prime had already completed and provided the Forbeses with a written change order for the increase in costs to modify the construction contract. Relying on the costs quoted by Prime, the Forbeses refused to sign the change order, resulting in Prime walking off the job. Because the property had only reached the demolition phase, the property was left uninhabitable.

Needing a place to live, the Forbeses rented a home and began the search for another contractor to complete the work. Five contractors later, the Forbeses could not find a contractor willing to complete the work. The Forbeses ultimately purchased another home to live in and were not able to pay both the mortgage on the project home and the mortgage on the residence home. As a result, the project home fell into foreclosure.

The Forbeses sued Prime for breach of contract, seeking the following damages: (1) payments they made to Prime under the contract; (2) payments they made for updated architectural plans; (3) certain other expenses, including rent for alternate housing; and (4) a loss of equity in their home they had prior to contracting with Prime. At trial, the Forbeses argued that Prime materially and completely breached the construction contract by demanding payments it was not entitled to under the contract and then walking off the job. Prime defended by arguing that, among other things, the Forbeses were also in breach and failed to mitigate their damages. The trial court found that Prime did in fact materially breach the contract but only awarded damages for rent of alternative housing because the trial court took the position that damages in this case were to put the Forbeses in as good a position as if the contract had been fully performed, of which the Forbeses provided no evidence, and that the Forbeses did not engage in mitigation efforts.

The Forbeses appealed the trial court’s decision for two reasons: (1) the trial court used the incorrect method of calculating damages by taking the position that damages in this case were to put the Forbeses in as good a position as if the contract had been fully performed; and (2) the trial court’s finding that the Forbeses failed to mitigate their damages is unsupported by evidence. The Second District Court of Appeal of Florida agreed with the Forbeses.

The Court explained that, in the event of a party’s material breach, the non-breaching party may treat the material breach as a breach of the entire contract, at which time the non-breaching party can suspend their own performance of the contract and seek damages to either:

1. return the non-breaching party to the position the non-breaching party was in prior to contracting with the breaching party, or

2. put the non-breaching party in the position the non-breaching party would have been in had the contract been fully performed.

Based upon the damages sought by the Forbeses, the trial court should have concluded that the Forbeses were seeking damages to restore them to the position they were in prior to contracting with Prime. Because the trial court did not do so, the Court held that the trial court used the incorrect method to calculate damages in this case.

As to mitigation of damages, the Court explained that there is no “duty to mitigate” in contract cases but that the non-breaching party is prevented from recovering damages that the non-breaching party could have reasonably avoided. A reduction in contract damages should only be considered where the Forbeses failed to undertake measures to avoid damages that were available to them without undue effort or expense. Given the circumstances of the Forbeses with an uninhabitable home and unable to find a willing contractor, the Court found that there was no competent substantial evidence to support a damage reduction.

Due to the trial court’s failure to apply the correct method of calculating damages and its improper application of a reduction of damages for failure to mitigate, the Court reversed the decision of the trial court so that the Forbeses would be awarded the full amount of damages to which they were entitled.

This case is a classic example of the need to purchase both performance and payment bonds to accompany the construction project at hand. While doing so will cost the association an additional 2% to 5% of the project costs, these bonds ensure that, if the general contractor does not pay the sub-contractors and suppliers and/or walks off the job, the bond surety, pending the terms of the bond, will be obligated to step in. In this author’s opinion, payment and performance bonds are worth their weight in gold… and then some.

Tags Construction, Contractors, Contracts, Florida Condominium, Florida HOA, Improvement Project, Legal, Rembaum Association Roundup No Comments »

The ability to impose a fine on an owner who has violated the conditions and regulations of a community association is one of the tools an association may use to bring about compliance with its governing documents. Notwithstanding the provisions regarding the fining process that may be set out in the association’s governing documents, the association must also follow the fining procedures as provided by Chapters 718, 719, and 720 of the Florida Statutes, governing condominiums, cooperatives, and homeowners’ associations, respectively. Particularly, these fining procedures require that the association’s board of directors provide the violator with at least 14 days’ written notice to appear at a hearing before an impartial committee prior to imposing any fine. However, what if only 13 days’ written notice is provided to the violator? Surely, one day less would make no difference, especially where the violator has failed to respond to multiple requests for correction of the violation? But, it does make a tremendous difference, as the homeowners’ association in the case of Dwork v. Executive Estates of Boynton Beach Homeowners Association, Inc., decided by Florida’s Fourth District Court of Appeal, learned the hard way.

In this case, the owner’s property needed maintenance and repairs to its roof, driveway, and fence, which are the responsibility of the owner pursuant to the association’s governing documents. The association gave the owner numerous notices providing the owner with multiple opportunities to conduct the necessary maintenance and repairs in order to avoid the imposition of fines. Despite the association’s efforts, the owner ignored the association’s many notices. As a result, the board sent the owner a written notice informing the owner that, in 13 days, a hearing would take place before the association’s fining committee to consider the owner’s maintenance violations. At the hearing, the committee voted to approve the fine for each of the owner’s violations, which was thereafter imposed by the board. Written notice of the imposition of the fines was sent to the owner. However, the owner never responded and the fines began to accrue. After written demands to the owner for payment of the fines were sent and similarly not responded to, the association recorded a lien against the owner’s property for the accrued amount of the fines and the fees and costs incurred by the association, totaling $8,135.00, and ultimately sued for foreclosure of the lien and for money damages. (Please note that the events in this case occurred before recent legislative changes to the fining process that now requires the board to first set the fine at a properly noticed board meeting followed by providing the offender a 14 day advance notice to appear before the fining committee who can only approve the board’s action of imposition of the fine. If the committee takes any action other than approval, such as modification of the fine, then such activity operates to fully negate the fine.)

At trial, the court denied foreclosure of the lien because the 13 days’ notice provided to the owner by the association did not comply with the strict 14 days’ notice requirement set out in the Florida Statutes. However, the trial court ruled in favor of the association regarding the claim for money damages because the “equities of this case were with the association and against the owner.” Due to the trial court’s determination in favor of the association for money damages, the owner appealed the trial court’s decision.

In defense of the owner’s appeal, the association argued that substantial compliance with the notice requirements set out in the Florida Statutes, was sufficient, especially since the owner was not prejudiced by the lack of an extra day’s notice. Not persuaded by the association’s argument, Florida’s Fourth District Court of Appeal held that the association could not enforce its lien for fines against the owner because the association failed to provide the requisite 14 days’ notice. The Court found that the 14 days’ notice requirement is a condition precedent to the attachment of a lien and must be strictly construed because Florida law is clear and unambiguous and does not allow for any discretion in compliance with its provisions. Without proper notice, the owner is deprived of due process rights and is unable to have sufficient time to prepare a defense to a claim of violation. As a result, any lien recorded due to the violation is invalid. For these same reasons, the appellate Court reversed the trial court’s determination in favor of the association for money damages, too, without regard to the appellate court’s agreement with the trial court that the equities in this case favored the association.

It is important to note that this case is with regard to a homeowners’ association, not a condominium or cooperative. Pursuant to Chapter 720, Florida Statutes, a fine may exceed $1,000 in the aggregate only if so provided in the declaration, and a fine of $1,000 or more can become a lien against the owner’s property only if provided for in the declaration. Such was the circumstance for the association in the above discussed case. However, under Chapters 718 and 719, Florida Statutes, a fine levied by a condominium or cooperative association respectively, cannot exceed $1,000 in the aggregate and cannot become a lien against the owner’s property.

Although not addressed by the Dwork case, what if your association’s declaration provides that monies expended by the association on behalf of a member who fails to perform a maintenance obligation can be collected in a manner akin to an assessment, or what if the declaration converts the monies expended, in one manner or another, to a special assessment against the lot? If so, this process is not exactly provided for in the Florida Statutes and thus raises an interesting question as to the notice procedures required to provide to the member. Let’s say the declaration provided the association with a self help remedy in the event a member fails to keep their driveway clean so that the association performs the task and after repeated requests the owner fails to reimburse the owner. Now it is time to treat the monies expended as an assessment levied against the lot, but how?

Some might say no further activity is necessary. But, a clever defendant could argue an extra step was necessary because the levy of any assessment, be it regular or special, requires a separate 14 day notice to be provided to the owner(s) subject to the assessment. Therefore, the board, at its next board meeting should take the extra step of converting the monies due into an assessment by adding a line item to the agenda for the consideration of conversion of the monies due(s) by member into an assessment and by sending the violator a 14 day advance notice of the board meeting where the board will act to consider this issue. In such a circumstance, before filing a lawsuit against a member of the association who failed to reimburse the association, be sure to get guidance from your association’s attorney as to how best to deal with this issue.

Tags Compliance, Fining, Florida Condominium, Florida HOA, Notices, Rembaum Association Roundup No Comments »

There appears to be some confusion surrounding the compliance date of the Engineered Life Safety System for those condominium associations that previously voted to opt out of the requirement to install condominium fire sprinkler retrofit. What is not confusing is that the safety of all occupants living in high-rise condominiums is paramount. No one wants to be responsible for death or injury caused by an incident that can be minimized with necessary precautions. How should the board of directors of a “high-rise” condominium balance the needs for fire safety against the considerable expense incurred in the implementation and installation of fire safety systems?

A high-rise building is a building where an occupiable floor is greater than seventy-five feet (75’) above the lowest level of fire department vehicle access. Pursuant to Florida law, condominiums that are considered high-rise buildings are required to have, or otherwise install, a fire sprinkler system, unless the condominium association had previously opted out, or is otherwise exempt, as further addressed below, by following the proper statutory protocol for which the deadline to do so has long since passed. However, for those high-rise condominiums that did successfully opt out, the association is still responsible for the installation of an Engineered Life Safety System (the “ELSS”).

A caveat, and for some condominium associations, a blessing, is that the fire sprinkler system (or ELSS) is not required if every unit in the condominium has exterior walkway access. Therefore, if the only access into the condominium unit is through an interior hallway, the condominium association would need to install a fire sprinkler system (or have already opted out and thereby need to comply with the requirements of the ELSS).

Section 718.112(2)(l), Florida Statutes, is quite clear on the requirements to install a fire sprinkler system, but the statute does not address the condominium association’s requirements for the implementation of the ELSS – that comes from the Florida Fire Prevention Code (the “FFPC”). The FFPC defines an ELSS as a system which contains any or all of the following systems:
1) partial automatic sprinkler protection,
2) smoke detection alarms,
3) smoke control,
4) compartmentation, and/or
5) other approved lifesaving systems.

An ELSS must be developed by a registered professional engineer experienced in fire and life safety system design and authorized by the local compliance authority. Typical examples of ELSS within a high-rise condominium building could be a partial fire sprinkler system that serves the common areas, fire and smoke alarms that are in compliance with the local fire authority standards, and fire proof walls, floors and corridors designed to prevent the flow of the fire and smoke throughout the condominium building.

As to any high-rise building required to install the automatic fire sprinkler system that did not opt out, the FFPC requires that any condominium that meets the definition of a high-rise building, must, by December 31, 2019, have installed the automatic fire sprinkler system. As to those who opted out, the exact date for ELSS compliance is anything but clear. The Condominium Act does not provide a date, and while the FFPC provides a clear deadline for the installation of the automatic fire sprinkler system, the FFPC does not patently provide a similar date for the installation of the ELSS. Some lawyers and fire safety professionals take the position that, because the ELSS is a substitute for the automatic fire sprinkler system, December 31, 2019 is, therefore, the ELSS compliance date. However, others may take the position that the lack of patent clarity in the FFPC means no deadline is provided.

Whether the local fire safety authorities will actually interpret and enforce the Florida Fire Prevention Code to require an ELSS approved plan, or ELSS completed installation by December 31, 2019 or even still, take the position that no ELSS deadline is provided at all is anyone’s guess. The answers might even vary by jurisdiction. What is clear is that:

1) The Florida legislature needs to address the ELSS compliance deadline to provide clarity for the betterment and safety of all of Florida’s high-rise communities; and

2) Any board member of a high-rise condominium association with questions regarding any of the issues addressed herein needs to consult with both their association’s legal counsel and with the local fire safety officials with jurisdiction for enforcement of the ELSS.

Tags ELSS, Engineered Life Safety System, Fire Sprinkler, Florida Condominium, High rise, Legal, Rembaum Association Roundup, Requirements, Safety No Comments »

While gasoline powered vehicles are still dominant on Florida’s roads, the ever-growing presence of electric vehicles cannot be ignored. The number of electric vehicles on our highways and streets continue to climb as they become more and more affordable. As consumers continue to embrace a greener lifestyle, Florida’s lawmakers have paved the way for condominium unit owners’ need to have access to electric vehicle charging stations. Effective July 1, 2018, new legislation, section 718.113(8) of the Florida Statutes, became effective which facilitates a unit owner’s ability to install and use an electric vehicle charging station within the unit owner’s limited common element parking space.

This new legislation prohibits the condominium association’s board of directors and a declaration of condominium provision or other restrictive covenants from prohibiting (or being enforced to prohibit) any unit owner from installing an electric vehicle charging station within the boundaries of the unit owner’s limited common element parking space, subject to certain conditions as laid out in this new legislation.

It is important to note that the right of installation of an electric vehicle charging station is ONLY applicable to the “limited common element” parking space and does not apply to a “common element” parking space. There is an important difference between a common element and a limited common element parking space. While all unit owners own an undivided interest in both, the limited common element parking space vests an individual use right to the owners of the unit to which the limited common element is appurtenant (connected to). Therefore, associations may prohibit the installation of electronic vehicle charging stations within the common elements or other portions of the condominium property that are maintained for the general use and benefit of all unit owners, but not as applied to a limited common element parking space, subject to the limitations and conditions of the legislation.

Thus, section 718.113(8) of the Florida Statutes, provides that, in considering a unit owner’s request to install an electric vehicle charging station, the association first must determine whether the charging station is to be installed within the boundaries of the requesting unit owner’s limited common element parking space. Whether a parking space is a limited common element is determined by the provisions of the declaration of condominium designating the parking space for the exclusive use and benefit of the owners of a specific unit.

If it is determined that the parking space is a limited common element, the unit owner may have the electric vehicle charging station installed subject to the requirements of the new legislation. These requirements provide that:

1) The installation cannot cause irreparable damage to the condominium property.

2) The unit owner is responsible for the costs of installation, operation, insurance, maintenance, repair, and removal of the charging station.

3) The electricity for the electric vehicle charging station must be separately metered and payable by the unit owner.

All of the above costs, if left unpaid by a unit owner, are enforceable by the association as any other assessment due pursuant to section 718.116, Florida Statutes, meaning if left unpaid their condominium unit can be foreclosed.

Additionally, as provided by the new legislation, the association can and should require that the unit owner:

1) comply with bona fide safety requirements, consistent with applicable building codes or recognized safety standards, for the protection of persons and property;

2) comply with reasonable architectural standards adopted by the association that govern the dimensions, placement, or external appearance of the electric vehicle charging station, provided that such standards may not prohibit the installation of such charging station or substantially increase the cost thereof;

3) engage the services of a licensed and registered electrical contractor or engineer familiar with the installation and core requirements of an electric vehicle charging station;

4) provide a certificate of insurance naming the association as an additional insured on the owner’s insurance policy for any claim related to the installation, maintenance, or use of the electric vehicle charging station within 14 days after receiving the association’s approval to install such charging station; and

5) reimburse the association for the actual cost of any increased insurance premium amount attributable to the electric vehicle charging station within 14 days after receiving the association’s insurance premium invoice.

Although your condominium association may not have received a request for the installation of an electric vehicle charging station as yet, your board of directors should be prepared for such a request. After all, it is only a matter of time. Therefore, condominium boards should consider adopting rules and regulations governing the process by which a unit owner is required to make such a request and provide for procedures by which the board of directors is to conduct its review and approval of the request.

While a unit owner desiring to install and use an electric vehicle charging station within his or her limited common element parking space will be able to do so by way of this new legislation, the association still has the authority to govern certain aspects of the installation and use and should be proactive in making rules and regulations in line with this authority. Your association’s legal counsel can be of great benefit to the board in creating a clear and concise process governing the electric car charging stations installation and use.

Tags Charging Station, Electric Vehicle, Florida Condominium, Legislation, Parking, Rembaum Association Roundup 1 Comment

Florida HOA & Condo Board Certification Course Do you have questions about community association law? Or, are you a new board member looking to attend an HOA and Condo Board Certification Course?

Listed below are nine upcoming HOA and Condo Board Certification Courses. These courses are free, and DBPR approved. These courses are a board member’s guide to the statutes and rules governing associations in Florida and fulfill condominium and HOA board member state certification requirements.

2019 Board Certification Course in Port St. Lucie – Tuesday, January 15, 2019 from 9:00 AM to 12:00 PM. Click here for more information and to register.

2019 Board Certification Course in West Broward – Wednesday, January 30, 2019 from 9:00 AM to 12:00 PM. Click here for more information and to register.

2019 Board Certification Course in Parkland – Friday, February 8, 2019 from 9:00 AM to 12:00 PM. Click here for more information and to register.

2019 Board Certification Course in Jupiter – Wednesday, February 13, 2019 from 9:00 AM to 12:00 PM. Click here for more information and to register.

2019 Board Certification Course in Fort Lauderdale – Tuesday, February 26, 2019 from 9:00 AM to 12:00 PM. Click here for more information and to register.

2019 Board Certification Course in Palm Beach Gardens – Tuesday, March 12, 2019 from 9:00 AM to 12:00 AM. Click here for more information and to register.

2019 Board Certification Course for COBWRA – Wednesday, March 13, 2019 from 9:00 AM to 12:00 PM. Click here for more information and to register.

2019 Board Certification Course in Pompano – Tuesday, April 2, 2019 from 9:00 AM to 12:00 PM. Click here for more information and to register.

2019 Board Certification Course in Highland Beach – Thursday, April 11, 2019 from 9:00 AM to 12:00 PM. Click here for more information and to register.

by Ashley Dietz Gray, Marketing Director, Campbell Property Management

Tags 2019 Board Certification Courses, 2019 Condo Board Certification Courses in Florida, 2019 HOA Board Certification Courses in Florida, Florida Condo, Florida HOA, Free DBPR Board Certification Courses 3 Comments

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