Medically Necessary Pets, Part II.
October 6, 2009
A recent Florida court ruling offers community associations some guidance.
By: Joshua Gerstin, Esq.
At the time of my first article entitled Medically Necessary Pets, the Florida courts offered little guidance to community associations dealing with “medically necessary pet accommodation requests”. Without such guidance many community associations were inclined to permit an owner’s pet upon receipt of a doctor’s prescription, regardless of its merit.
In the recent case of Hawn v. Shoreline Towers Phase I Condominium Association, Inc. et. al., the United States District Court for the Northern District of Florida specified information it deemed reasonable for an association to seek from an owner that submitted a medically necessary pet accommodation. The facts of the Hawn case illustrates the issues many community associations deal with when a medically necessary pet accommodation request is submitted.
In Hawn, the Shoreline Towers Phase I Condominium Association had a long-standing no pets policy prior to Mr. Hawn’s purchase of his unit. Nevertheless, a year after moving in, Mr. Hawn adopted a puppy and requested the Board of Directors make a “reasonable accommodation” allowing his puppy to stay. A letter from his psychologist (claiming the dog ameliorated severe panic attacks) and chiropractor (claiming the dog assisted with mobility issues) accompanied his request.
After meeting with Mr. Hawn the Board of Directors requested the following further information:
- The qualifications of the two medical professionals that submitted letters to the association in support of his request.
- Information specifically setting forth the manner in which the pet helps him deal with his disabilities.
- Whether there were other corrective measures that could help the owner with his impairments.
The owner never responded to the association’s information request and his accommodation request for his pet was denied. Soon thereafter, Mr. Hawn filed a lawsuit.
During discovery the association realized Mr. Hawn first petitioned the Board to rescind its no-pet policy without mentioning his disability. It was also discovered that Mr. Hawn had only seen each of his pet prescribing doctors twice. In dismissing the owner’s case, the court held the initial information submitted by the owner was insufficient for the association to make a reasonable determination. Mr. Hawn’s subsequent refusal to respond to the Board’s information request was fatal to his case.
For the time being, the Hawn case offers guidance as to the information an association should review before bypassing its covenants and granting a medically necessary pet accommodation request. In particular:
- the qualifications of the medical professionals that prescribed the pet and the specific nature of the owner’s disability and;
- information specifically setting forth the manner in which the pet helps the owner deal with his disabilities;
- is there a reasonable “other way” to assist the owner with his disabilities besides granting the pet accommodation request.
Of note, a Board of Directors must take steps to keep an owner’s medical records and information protected from disclosure, including official record requests.
Over time, the proper course for an association to take when reviewing a medically necessary pet accommodation request will change as courts review different cases with different facts. Therefore, prior to taking any action on an owner’s request for a medically necessary pet accommodation, consult your community association’s attorney.
Joshua Gerstin, Esq. is the Managing Partner of the Gerstin Associates law firm located at: 1499 West Palmetto Park Rd., Suite 412, Boca Raton, FL 33486. To submit a question to the Community Counselor, you can call, fax or email Joshua Gerstin, Esq. at:
Telephone: (561) 750-3456.
The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you free written information about our qualifications and experience. All information on this website is not legal advice, legal counsel or a legal opinion. All information provided on this website is provided for general information purposes only and should not be relied upon. For legal questions or, before taking any action, please contact your attorney.
Breaking News: H.R.1106, The House Foreclosure Bill Can Amend All Liens on a Property, Not Just the First Mortgage
March 6, 2009
Businesses that lend money secured by property as well as contractor’s that furnished goods and services on a home will lose a lot of money if the new House Foreclosure Bill passes in its present form. The bill is known as: Helping Families Save Their Homes Act of 2009. To prevent mortgage foreclosures and enhance mortgage credit availability. In essence, the bill allows for the modification of a creditor’s rights as to any liens on a property once the owner qualifies with his/her first mortgage to go into this new bankruptcy modification. This includes, Community Associations, homeowner associations, condominium associations, contractors, business deals/loans secured by a mortgage or lien.
To make matters worse, if a debtor in the Bankruptcy modification plan incurs new debt secured by his/her home, the notice provisions to the Bankruptcy Court to preserve the right to collect that debt have become more complicated. If done wrong, the your can be wiped out.
Call your United States Senator and make them aware of these issues. Considering many Congressman have openly admitted to not reading the “Stimulus Bill”, it’s doubtful they read the Helping Families Save Their Homes Act of 2009. To prevent mortgage foreclosures and enhance mortgage credit availability.. Call them now, the vote by the United States Senate is soon.
SEC. 103. AUTHORITY TO MODIFY CERTAIN MORTGAGES.
Section 1322 of title 11, United States Code, is amended–
(1) in subsection (b)–
(A) by redesignating paragraph (11) as paragraph (12),
(B) in paragraph (10) by striking `and’ at the end, and
(C) by inserting after paragraph (10) the following:
`(11) notwithstanding paragraph (2), with respect to a claim for a loan originated before the effective date of this paragraph and secured by a security interest in the debtor’s principal residence that is the subject of a notice that a foreclosure may be commenced with respect to such loan, modify the rights of the holder of such claim (and the rights of the holder of any claim secured by a subordinate security interest in such residence)–
SEC. 104. COMBATING EXCESSIVE FEES.
Section 1322(c) of title 11, United States Code, is amended–
(1) in paragraph (1) by striking `and’ at the end,
(2) in paragraph (2) by striking the period at the end and inserting a semicolon, and
(3) by adding at the end the following:
`(3) the debtor, the debtor’s property, and property of the estate are not liable for a fee, cost, or charge that is incurred while the case is pending and arises from a debt that is secured by the debtor’s principal residence except to the extent that–
`(A) the holder of the claim for such debt files with the court and serves on the trustee, the debtor, and the debtor’s attorney (annually or, in order to permit filing consistent with clause (ii), at such more frequent periodicity as the court determines necessary) notice of such fee, cost, or charge before the earlier of–
`(i) 1 year after such fee, cost, or charge is incurred; or
`(ii) 60 days before the closing of the case; and
`(B) such fee, cost, or charge–
`(i) is lawful under applicable nonbankruptcy law, reasonable, and provided for in the applicable security agreement; and
`(ii) is secured by property the value of which is greater than the amount of such claim, including such fee, cost, or charge;
`(4) the failure of a party to give notice described in paragraph (3) shall be deemed a waiver of any claim for fees, costs, or charges described in paragraph (3) for all purposes, and any attempt to collect such fees, costs, or charges shall constitute a violation of section 524(a)(2) or, if the violation occurs before the date of discharge, of section 362(a); and
`(5) a plan may provide for the waiver of any prepayment penalty on a claim secured by the debtor’s principal residence.’.
“Medically Necessary” Pets in Florida’s Pet-Restricted Condo. and Homeowner Associations.
February 19, 2009
There are a growing number of advocates who feel community association pet restrictions should be illegal. These groups have internet sites complete with “sample doctor’s notes” for use by those who want to get around pet restrictions they agreed to when they bought into their community association. Pet owners have been submitting “Medically Necessary” prescriptions for their pets in large numbers. Owners that purchased in the communities that promised through their Governing Documents to restrict pets, are threatening to sue. Wanting to do the right thing and fearful of intervention by a governmental agency or a lawsuit from both the pet owner(s) and their neighbors, Board members are starting to learn the ins and outs of this potential minefield to better serve all of the people involved.
Legal Background:
Although many people cite the Americans with Disabilities Act (“ADA”) as the basis for their “anti-pet restriction” position, the ADA does not apply to community associations because they are not places of public accommodation. The law that does apply to Florida’s community associations is the Federal Fair Housing Amendments Act of 1988 (“Act”). This law prohibits discrimination on the basis of a “handicap”, which is broadly defined in the law to include most physical or mental maladies that impair a major life function. Florida has adopted the Act; therefore, references made to other Federal Court decisions from other states are binding on Florida. The Florida Committee on Human Relations and the Federal Department of Housing and Urban Development (“HUD”) enforce the Act.
The Act requires the association to make reasonable accommodations for disabled people to fully enjoy their premises. Such reasonable accommodations include, without a doubt, an association issuing a waiver of its pet restrictions. Recently, HUD updated (and although they deny it, I believe expanded) its regulations relating to the Act and animals that provide medically necessary support for their owner’s disabilities. Following are excerpts from public comments made by HUD in their public analysis of their updates to the ACT:
Under both the Fair Housing Act and Section 504, in order for a requested accommodation to qualify as a reasonable accommodation, the requester must have a disability, and the accommodation must be necessary to afford a person with a disability an equal opportunity to use and enjoy a dwelling. To show that a requested accommodation may be necessary, there must be an identifiable relationship, or nexus, between the requested accommodation and the person’s disability. Thus, in the case of assistance/service animals, an individual with a disability must demonstrate a nexus between his or her disability and the function the service animal provides. The Department’s position has been that animals necessary as a reasonable accommodation do not necessarily need to have specialized training. Some animals perform tasks that require training, and others provide assistance that does not require training. (Emphasis added).
Housing providers are entitled to verify the existence of the disability, and the need for the accommodation–if either is not readily apparent. Accordingly, persons who are seeking a reasonable accommodation for an emotional support animal may be required to provide documentation from a physician, psychiatrist, social worker, or other mental health professional that the animal provides support that alleviates at least one of the identified symptoms or effects of the existing disability. (Emphasis added).
. . .in order to qualify as a reasonable accommodation, the requester must have a disability, and there must be a relationship between the requested accommodation and that person’s disability. For example, the person with a disability who is requesting the assistance animal must demonstrate a disability-related need for the animal, such as service, or assistance, performing tasks for the benefit of a person with a disability, or providing emotional support that alleviates one or more identified symptoms or effects of a person’s disability. Examples of disability-related functions, include, but are not limited to, guiding individuals who are blind or have low vision, alerting individuals who are deaf or hard of hearing to sounds, providing rescue assistance, pulling a wheelchair, fetching items, alerting persons to impending seizures, or providing emotional support to persons with disabilities who have a disability-related need for such support. (Emphasis added).
Based on the above guidance from HUD “each case brought to the association should be a fact-intensive, case specific determination”. Janush v. Charities Hous. Dev. Corp., 159 F. Supp. 2d 1133 (N.D. Cal. 2000); Majors v. Hous. Auth. of the County of DeKalb, Ga., 652 F.2d 454, 457-58 (5th Cir. 1981). The Board’s duty of establishing that a “support animal” is necessary for an owner to use and enjoy their residence is critical. Courts have consistently held that an owner requesting an emotional support animal as a reasonable accommodation must demonstrate a relationship between his or her ability to function and the companionship of the animal. See, e.g., Majors v. Housing Authority of the County of Dekalb, 652 F.2d 454 (5th Cir. 1981); Housing Authority of the City of New London v. Tarrant, 1997 Conn. Super. LEXIS 120 (Conn. Super. Ct. Jan. 14, 1997); Whittier Terrace v. Hampshire, 532 N.E.2d 712 (Mass. App. Ct. 1989); Durkee v. Staszak, 636 N.Y.S.2d 880 (N.Y.App.Div. 1996); Crossroads Apartments v. LeBoo, 578 N.Y.S.2d 1004 (City Court of Rochester, N.Y. 1991).
Conclusion:
Each case has to be reviewed by the Board on its own merits based upon submissions from the owner and the owner’s doctor or similar professional. In conducting an analysis of a possible waiver of pet restrictions, the Board cannot share an owner’s submitted medical information to the members at large. Further, other than stating a waiver for “medical necessity” was granted, the Board should not discuss an owner’s condition with the members. Further, all evidence submitted by an owner should be kept in a separate file marked CONFIDENTIAL” and should not be released pursuant to any record requests from an owner. Violations can result in both State and Federal lawsuits.
Although a fool proof method to avoid being sued or upsetting at least one group of owners does not exist. Understanding the requirements and working with your community’s attorney for each owner submission will go a very long way in keeping the board out of the dog house!
Joshua Gerstin, Esq.
www.gerstin.com
2008 Community Association Legislative Update
December 23, 2008
Click Here to Download Full Report
Presents:
1499 West Palmetto Park Rd, Suite 412, Boca Raton, FL 33486
Telephone: (561) 750-3456, Facsimile: (561) 750-8185
Web: www.Gerstin.com
The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you free written information about our qualifications and experience. All of the information in this report is not legal advice, legal counsel or a legal opinion and should not be relied upon. For legal questions or, before taking any action, please contact your attorney. Copyright 2008 Gerstin & Associates. All Rights Reserved.
Homeowner Associations
| Association Administration |
| 720.303• Open Meetings. Homeowners’ association directors’ and committee meetings do not have to be open to members if discussing pending or proposed litigation with counsel or personnel matters.
• Compensation. Association officers, directors and committee members may not receive, directly or indirectly, any compensation for service except the same for benefits enjoyed community wide or authorized in advance by a majority of the members. Reserves 720.303 (c) If the budget of the association does not provide for reserve accounts governed by this subsection and the association is responsible for the repair and maintenance of capital improvements that may result in a special assessment if reserves are not provided, each financial report for the preceding fiscal year required by subsection (7) shall contain the following statement in conspicuous type: THE BUDGET OF THE ASSOCIATION DOES NOT PROVIDE FOR RESERVE ACCOUNTS FOR CAPITAL EXPENDITURES AND DEFERRED MAINTENANCE THAT MAY RESULT IN SPECIAL ASSESSMENTS. OWNERS MAY ELECT TO PROVIDE FOR RESERVE ACCOUNTS PURSUANT TO THE PROVISIONS OF SECTION 720.303(6), FLORIDA STATUTES, UPON THE APPROVAL OF NOT LESS THAN A MAJORITY OF THE TOTAL VOTING INTERESTS OF THE ASSOCIATION. • Establishing Reserves (d) An association shall be deemed to have provided for reserve accounts when reserve accounts have been initially established by the developer or when the membership of the association affirmatively elects to provide for reserves. If reserve accounts are not initially provided for by the developer, the membership of the association may elect to do so upon the affirmative approval of not less than a majority of the total voting interests of the association. Such approval may be attained by vote of the members at a duly called meeting of the membership or upon a written consent executed by not less than a majority of the total voting interests in the community. The approval action of the membership shall state that reserve accounts shall be provided for in the budget and designate the components for which the reserve accounts are to be established. Upon approval by the membership, the board of directors shall provide for the required reserve accounts for inclusion in the budget in the next fiscal year following the approval and in each year thereafter. Once established as provided in this subsection, the reserve accounts shall be funded or maintained or shall have their funding waived in the manner provided in paragraph (f). (e) The amount to be reserved in any account established shall be computed by means of a formula that is based upon estimated remaining useful life and estimated replacement cost or deferred maintenance expense of each reserve item. The association may adjust replacement reserve assessments annually to take into account any changes in estimates of cost or useful life of a reserve item. (g) Funding formulas for reserves authorized by this section shall be based on either a separate analysis of each of the required assets or a pooled analysis of two or more of the required assets. 1. If the association maintains separate reserve accounts for each of the required assets, the amount of the contribution to each reserve account shall be the sum of the following two calculations: a. The total amount necessary, if any, to bring a negative component balance to zero. b. The total estimated deferred maintenance expense or estimated replacement cost of the reserve component less the The formula may be adjusted each year for changes in estimates and deferred maintenance performed during the year and may include factors such as inflation and earnings on invested funds. 2. If the association maintains a pooled account of two or more of the required reserve assets, the amount of the contribution to the pooled reserve account as disclosed on the proposed budget shall not be less than that required to ensure that the balance on hand at the beginning of the period for which the budget will go into effect plus the projected annual cash inflows over the remaining estimated useful life of all of the assets that make up the reserve pool are equal to or greater than the projected annual cash outflows over the remaining estimated useful lives of all of the assets that make up the reserve pool, based on the current reserve analysis. The projected annual cash inflows may include estimated earnings from investment of principal. The reserve funding formula shall not include any type of balloon payments. • Maintaining the reserve account: (h) Reserve funds and any interest accruing thereon shall remain in the reserve account or accounts and shall be used only for authorized reserve expenditures unless their use for other purposes is approved in advance by a majority vote at a meeting at which a quorum is present. Prior to turnover of control of an association by a developer to parcel owners, the developer-controlled association shall not vote to use reserves for purposes other than those for which they were intended without the approval of a majority of all nondeveloper voting interests voting in person or by limited proxy at a duly called meeting of the association. |
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Collections, Liens and Bank Foreclosures |
| §720.3085. Owners remaining in possession after a foreclosure judgment may be required to pay rent and an association is entitled to purchase a foreclosed parcel. The liability of a first mortgagee, or its successor or assign as a subsequent holder of the first mortgage, for homeowners’ association assessments coming due before the mortgagee’s acquisition of title is limited to the lesser of twelve months of regular and special assessments or 1% of the original mortgage debt. A homeowners’ association may record a claim of lien forty-five days after depositing a notice in the mail to the owner. Qualifying offer procedures are clarified. |
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Homeowner Association Flags |
| §720.304(2) (a). Flags. The types of flags that may be displayed in a homeowners’ association community are expanded to include POW-MIA flags. Two flags may be flown on a parcel, one United States flag or official flag of the State of Florida and one for the armed forces or POW-MIA. A parcel owner may utilize a free standing flag pole no more than twenty feet high anywhere not interfering with intersection sight lines or easements. |
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Condominiums
| Before 2008 Changes |
After 2008 Changes |
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| Director Voting | ||||||||
| 718.111(1)(b). Allowed abstentions for conflicts of interest. Nothing stated about the meaning of an abstention | 718.111(1)(b). A director who abstains from voting on any action taken on any corporate matter is presumed to have taken no position regarding the action. | |||||||
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Standard of Conduct for Directors |
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| 718.111(1)(d). No prior statutory provision. |
718.111(1)(d). Officers, agents, and members of the board of directors of a condominium association are required to adhere to a good faith and reasonably prudent person standard and provides for monetary damages and criminal penalties for breach of this standard. Transactions from which the officer or director derived an improper personal benefit, either directly or indirectly; or constitutes recklessness or an act or omission that was in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.
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Official Records |
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| 718.111(12)(11). No prior statutory provision. |
718.111(12)(11). Fines can be levied against individuals up to $5,000 for intentionally or knowingly defacing a condominium accounting record or failing to create or maintain such a record. | |||||||
| 718.111(16)(b). No geographic limitations and no option to produce the records electronically. |
718.111(16)(b). Official records of the condo association must be maintained for a period of seven years. The required inspection report is also now part of the official accounting records. Records must be within 45 miles from the condo complex or in the same county as the condo complex. Providing the records through the internet by posting on the web, if the documents can be downloaded and printed is a permissible alternative to document inspection at an office of the condominium or property manager. |
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| 718.111(12)(16)(4). No prior statutory provision. |
718.111(12)(16)(4). The Social Security numbers, driver’s license and other personal identifying information of members’ are not accessible to unit owners. | |||||||
| 718. 111(13). No prior statutory provision. |
718. 111(13) The Division has been empowered to, but has yet, implemented rules regarding uniform accounting principles and standards for stating the disclosure of at least a summary of the reserves, including information as to whether such reserves are being funded at a level sufficient to prevent the need for a special assessment and, if not, the amount of assessments necessary to bring the reserves up to the level necessary to avoid a special assessment. The person preparing the financial reports shall be entitled to rely on an inspection report prepared for or provided to the association to meet the fiscal and fiduciary standards of this chapter. | |||||||
| Elections & Qualifications to Serve | ||||||||
| 718.112(2)(b)(2). No prior statutory provision. |
718.112(2)(b)(2). Association owned units do not have voting rights or any consent allocated to them.
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| Before |
After |
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| 718.112(2)(d). Previously only had a disqualification for felons wanting to serve on a condominium Board. |
718.112(2)(d). Precludes members from serving as a director if the member is delinquent on the payment of his/her assessments, if they were suspended or removed by the Division in the past, co-owners in an association with more than ten units may not serve on the Board at the same time. |
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| 718.113(7). No prior statutory provision. |
718.113(7). Regardless of restrictions in an association’s Governing Documents, unit owners are allowed to display religious decorations not to exceed 3 inches wide, 6 inches high, and 1.5 inches deep. |
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| 718.112(2)(d)(1). Board member terms expired at the election of their successors at the annual meeting. |
718.112(2)(d)(1). The terms of all board members expire at the annual meeting and if not precluded by the Bylaws these members can stand for reelection. |
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| 718.112(2)(d)(1). No prior statutory provision. Condominium Elections Continued. |
718.112(2)(d)(1). Board members can only be elected to annual (1-year) terms, coinciding with the annual meeting, or to no more than 2-year staggered terms, if authorized by the association’s Governing Documents. “If your association documents already provide for 2-year staggered terms, we recommend that your association reaffirm this by a new vote with approval from a majority of the voting interests in order to continue using two year staggered terms.” “If the association wants to adopt 2-year staggered terms as a new provision or your current association documents provide for staggered terms of 3 years or more, you must amend your documents accordingly. Staggered terms of 3 or more years are no longer allowed.” |
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| For upcoming elections, board members who are not up for election because they are in mid-term of a 3 year term may serve out the remainder of their term. If a board member’s 3 year term expires at the next (upcoming) election the newly elected member is limited to either a 1-year or 2-year staggered term depending on how your documents are amended and approved by a majority of the voting interests. This process will repeat itself in subsequent annual elections until all board members are serving either 1-year or 2-year staggered terms. | ||||||||
Board Candidates |
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| 718.112(2)(d)(1). No prior statutory provision. |
718.112(2)(d)(1). If no one is interested in or demonstrates an intention to run for the position of a board member whose term has expired, such board member whose term has expired shall be automatically reappointed to the board of administration and need not stand for reelection. |
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| 718.112(2)(d)(3). No prior statutory provision.
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718.112(2)(d)(3). Establishes a certification form, to be provided with the election notice to unit owner entitled to vote, for candidates for condominium association boards attesting that the candidate has read and understands, to the best of his/her ability, the governing documents of the association and the provisions of Chapter 718 and any applicable rules. |
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| 718.112(2)(m). No prior statutory provision. |
718.112(2)(m). A director or officer more than 90 days delinquent in the payment of regular assessments shall be deemed to have abandoned the office, creating a vacancy in the office to be filled according to law. 718.112(2)(n). Officers and directors who are charged with a felony theft or embezzlement offense shall be removed from office and cannot be appointed or elected as director or officer. Should the charges be resolved without a finding of guilt, the director or officer shall be reinstated for the remainder of the term of office.
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Reserves |
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| 718.112(2)(F)(3). Waiving or reducing the funding of reserves below the statutory requirements can be performed by the majority votes of the owners. |
718.112(2)(F)(3). Proxy voting relating to waiving or reducing the funding of reserves or using existing reserve funds for purposes other than purposes for which the reserves were intended shall contain the following statement in capitalized, bold letters in a font size larger than any other used on the face of the proxy ballot: WAIVING OF RESERVES, IN WHOLE OR IN PART, OR ALLOWING ALTERNATIVE USES OF EXISTING RESERVES MAY RESULT IN UNIT OWNER LIABILITY FOR PAYMENT OF UNANTICIPATED SPECIAL ASSESSMENTS REGARDING THOSE RESERVE ITEMS.
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 Mandatory Inspections |
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| 718.113(6). No prior statutory provision.
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718.113(6). As to any condominium building greater than three stories in height, at least every 5 years, and within 5 years if not available for inspection on October 1, 2008, the board shall have the condominium building inspected to provide a report under seal of an architect or engineer authorized to practice in this state attesting to required maintenance, useful life, and replacement costs of the common elements. However, if approved by a majority of the voting interests present at a properly called meeting of the association, an association may waive this requirement. Such meeting and approval must occur prior to the end of the 5-year period and is effective only for that 5-year period.
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 Hurricane Shutters |
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| 718.113(5) and 718.115(1)(e) No prior statutory provision.
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718.113(5) and 718.115(1)(e) Provides that Board can install hurricane protection that complies with or exceeds applicable building codes (in addition to hurricane shutters). A vote of the owners is not required if the hurricane protection to be installed is the maintenance, repair, and replacement responsibility of the association. The cost to install the hurricane protection is a common expense if the hurricane protection to be installed is the maintenance, repair, or replacement responsibility of the association. In such case, owners who have previously installed code compliant hurricane protection will receive a credit on the assessment. |
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| Liens & Collections | ||||||||
| 718.115(1)(e) No prior statutory provision.
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718.115(1)(e). No lien may be filed by the association against a condominium unit until 30 days after the date on which a notice of intent to file a lien has been delivered to the owner by certified mail, return receipt requested, and by first-class United States mail to the owner at his or her last known address as reflected in the records of the association. |
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| Emergency Powers | ||||||||
| 718.1265. To the extent allowed by law and unless specifically prohibited by the declaration of condominium, the articles, or the bylaws of an association, and consistent with the provisions of s. 617.0830, the board of administration. In response to damage caused by an event for which a state of emergency is declared in the locale in which the condominium is located, may, but is not required to, exercise the following powers: (a) Conduct board meetings and membership meetings with notice given as is practicable. Such notice may be given in any practicable manner, including publication, radio, United States mail, the Internet, public service announcements, and conspicuous posting on the condominium property or any other means the board deems reasonable under the circumstances. Notice of board decisions may be communicated as provided in this paragraph. (b) Cancel and reschedule any association meeting. (c) Name as assistant officers persons who are not directors, which assistant officers shall have the same authority as the executive officers to whom they are assistants during the state of emergency to accommodate the incapacity or unavailability of any officer of the association. (d) Relocate the association’s principal office or designate alternative principal offices. (e) Enter into agreements with local counties and municipalities to assist counties and municipalities with debris removal. (f) Implement a disaster plan before or immediately following the event for which a state of emergency is declared which may include, but is not limited to, shutting down or off elevators; electricity; water, sewer, or security systems; or air conditioners. (g) Based upon advice of emergency management officials or upon the advice of licensed professionals retained by the board, determine any portion of the condominium property unavailable for entry or occupancy by unit (h) Require the evacuation of the condominium property in the event of a mandatory evacuation order in the locale in which the condominium is located. Should any unit owner or other occupant of a condominium fail or refuse to evacuate the condominium property where the board has required evacuation, the association shall be immune from liability or injury to persons or property arising from such failure or refusal. (i) Based upon advice of emergency management officials or upon the advice of licensed professionals retained by the board, determine whether the condominium property can be safely inhabited or occupied. However, such determination is not conclusive as to any determination of habitability pursuant to the declaration. (j) Mitigate further damage, including taking action to contract for the removal of debris and to prevent or mitigate the spread of fungus, including, but not limited to, mold or mildew, by removing and disposing of wet drywall, insulation, carpet, cabinetry, or other fixtures on or within the condominium property, even if the unit owner is obligated by the declaration or law to insure or replace those fixtures and to remove personal property from a unit. (k) Contract, on behalf of any unit owner or owners, for items or services for which the owners are otherwise individually responsible for, but which are necessary to prevent further damage to the condominium property. In such event, the unit owner or owners on whose behalf the board has contracted are responsible for reimbursing the association for the actual costs of the items or services, and the association may use its lien authority provided by s. 718.116 to enforce collection of the charges. Without limitation, such items or services may include the drying of units, the boarding of broken windows or doors, and the replacement of damaged air conditioners or air handlers to provide climate control in the units or other portions of the property. (l) Regardless of any provision to the contrary and even if such authority does not specifically appear in the declaration of condominium, articles, or bylaws of the association, levy special assessments without a vote of the owners. (m) Without unit owners’ approval, borrow money and pledge association assets as collateral to fund emergency repairs and carry out the duties of the association when operating funds are insufficient. This paragraph does not limit the general authority of the association to borrow money, subject to such restrictions as are contained in the declaration of condominium, articles, or bylaws of the association. (2) The special powers authorized under subsection (1) shall be limited to that time reasonably necessary to protect the health, safety, and welfare of the association and the unit owners and the unit owners’ family members, tenants, guests, agents, or invitees and shall be reasonably necessary to mitigate further damage and make emergency repairs.
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| Developer Transition | ||||||||
| 718.301 (1)(p). No prior statutory provision. |
718.301 (1)(p). Prior to transition the developer must obtain a report under seal of an architect or engineer authorized to practice in this state, attesting to required maintenance, useful life, and replacement costs of the following applicable common elements comprising a turnover inspection report: 1. Roof. 2. Structure. 3. Fireproofing and fire protection systems. 4. Elevators. 5. Heating and cooling systems. 6. Plumbing. 7. Electrical systems. 8. Swimming pool or spa and equipment. 9. Seawalls. 10. Pavement and parking areas. 11. Drainage systems. 12. Painting. 13. Irrigation systems.
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| The Division’s Role in a Transition | ||||||||
| 718.501(1). In performing its duties, the division has complete jurisdiction to investigate complaints and enforce compliance with the provisions of this chapter with respect to associations that are still under developer control and complaints against developers involving improper turnover or failure to turnover. However, after turnover has occurred, the division shall only have jurisdiction to investigate complaints related to financial issues, elections, and unit owner access to association records.
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 Management Companies |
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| Contracts and Bidding | ||||||||
| 718.3026 . Associations with 10 or fewer units may opt out of the provisions of the bidding requirements ( former threshold was 100 or fewer units) if two-thirds of the unit owners vote to do so. Can be a vote by proxy | ||||||||
| 718.3026 (1) All contracts as further described herein or any contract that is not to be fully performed within 1 year after the making thereof, for the purchase, lease, or renting of materials or equipment to be used by the association in accomplishing its purposes under this chapter, and all contracts for the provision of services, shall be in writing. If a contract for the purchase, lease, or renting of materials or equipment, or for the provision of services, requires payment by the association on behalf of any condominium operated by the association in the aggregate that exceeds 5 percent of the total annual budget of the association, including reserves, the association shall obtain competitive bids for the materials, equipment, or services. Nothing contained herein shall be construed to require the association to accept the lowest bid. Contracts with employees of the association, and contracts for attorney, accountant, architect, community association manager, timeshare management firm, engineering, and landscape architect services are not subject to these provisions.
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| Conflicts of Interest. |
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| 718.3026(3). No prior statutory provision. |
718.3026(3). As to any contract or other transaction between an association and one or more of its directors or any other corporation, firm, association, or entity in which one or more of its directors are directors or officers or are financially interested: (a) The association shall comply with the requirements of s. 617.0832. (b) The disclosures required by s. 617.0832 shall be entered into the written minutes of the meeting. (c) Approval of the contract or other transaction shall require an affirmative vote of two-thirds of the directors present. (d) At the next regular or special meeting of the members, the existence of the contract or other transaction shall be disclosed to the members. Upon motion of any member, the contract or transaction shall be brought up for a vote and may be canceled by a majority vote of the members present. Should the members cancel the contract, the association shall only be liable for the reasonable value of goods and services provided up to the time of cancellation and shall not be liable for any termination fee, liquidated damages, or other form of penalty for such cancellation.
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| Fines | ||||||||
| 718.303 (3). No prior statutory provision. |
718.303 (3). Defines the membership of the committee of unit owners that conduct the hearing to determine whether a unit owner is fined for violation of association rules or bylaws to exclude board members or persons residing in a board member’s household.
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| Insurance Overall: Based on the following new insurance laws, associations should now do the following: (1) Obtain an insurance appraisal every 36 months. (2) Vote on the deductible yearly at a properly noticed board meeting. The notice must state: the proposed deductible and the available funds and the assessment authority relied upon by the board and estimate any potential assessment amount against each unit. Requires 14 days notice by mail to the unit owners. The new law rewrites Section 718.111(11), Florida Statutes. Following is a summary of the changes:
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| • Adequate Insurance. Adequate hazard insurance shall be based upon the replacement cost of the property as determined by an independent insurance appraisal or update of a prior appraisal. The full insurable value must be determined at least once every 36 months. • Self-Insurance and Pooling. The provisions for self insurance and pooled insurance remain unchanged, but pooled insurance programs will now require the approval of the Office of Insurance Regulation. • Deductible. The deductible must be consistent with industry standards and prevailing practice for communities of similar size and age, and having similar construction and facilities in the locale where the condominium property is located. The Board must establish the amount of the deductible based upon the level of available funds and predetermined assessment authority at a meeting of the Board. Such meeting requires fourteen (14) days notice by mail to the owners and must be open to all unit owners. The notice must state the proposed deductible and the available funds and the assessment authority relied upon by the board and estimate any potential assessment amount against each unit. The Board meeting may be held in conjunction with budget meeting. • The Association insures:
coverage obligations. • Unit Owner Insurance Responsibility. Unit owner coverage is still mandated, but the statute will also require individual unit owner policies to provide $2,000.00 of loss assessment coverage per occurrence. The unit owner is required to provide proof of hazard and liability insurance upon request, but not more than once per year. The new statute also requires that the Association be named as an additional insured and loss payee on all casualty policies issued to unit owners. The statute also provides that all improvements or additions to the Condominium Property that benefit fewer than all owners must be insured by the unit owners having the use thereof or may be insured by the Association at the cost and expense of the owners having the use thereof. This provision is subject to interpretation and could be interpreted to apply to limited common element parking spaces, storage lockers, and even balconies and patios but we do not believe that was the intent . • Reconstruction. All reconstruction is to be undertaken by the Association if the reconstruction work involves damages to portions of the property which the Association insures. The Association can authorize unit owners to undertake reconstruction work with the prior written consent of the board, but can condition such work upon the approval of the repair methods, qualifications of contractors, etc. Unit owners will be responsible for reconstruction of the property to the extent the damage pertains to portions of the property which the owners insure. If the Association undertakes reconstruction work for which the owners are responsible, the Association can charge the unit owner and lien the unit for the costs. Exceptions to Association Responsibility for Cost of Reconstruction. (1) The Association will not be responsible for reconstruction of unit owner alterations if the improvement benefits only the unit for which it was installed and is not part of the standard improvements installed by the developer on all units as part of original construction, whether or not located within the unit. (2) Damages caused by casualty loss but which are attributable to unit owner negligence or failure to comply with the requirements of the covenants will be repaired at the expense of the owner. (3) Casualty losses within the units which were known or should have been known to the owner and not reported to the Association in a timely manner, such that the claim was denied on that basis, will also be the financial responsibility of the unit owner.
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| Expanded Powers of the Division | ||||||||
| The Division can now remove a person as an officer or from the board of administration and prohibit them from serving as an officer or board member for a period of time. Provides for Penalties against associations that fail to provide records access to unit owners are strengthened; grants subpoena powers to the Division; provides for records to be provided electronically. |
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| Penalties against associations that fail to provide records access to unit owners are strengthened; grants subpoena powers to the Division; provides for records to be provided electronically | ||||||||
| Granted the power to establish a governance form to be provided by the Division including various topics related to condominium education, rights and responsibilities that a seller must provide, at the seller’s expense, to a potential purchaser; identifies specific language noting that in the event of a conflict, the provisions of Chapter 718, FS, Division rules, and association documents prevail. | ||||||||
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The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you free written information about our qualifications and experience. All of the information in this report is not legal advice, legal counsel or a legal opinion and should not be relied upon. For legal questions or, before taking any action, please contact your attorney. Copyright 2008 Gerstin & Associates. All Rights Reserved.
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The Top Ten Most Common Fatal Mistakes Made by Community Association Directors and How to Avoid Them.
February 28, 2008
Community association directors don’t have an easy job. Besides not being paid, directors are increasingly facing tougher scrutiny and unfair criticism from legislators and homeowners. By avoid the following Top Ten Most Common Fatal Mistakes directors can make their jobs a little bit easier and a lot more enjoyable:
1. Not requiring two Board member signatures on all checks needlessly exposes an association to potential problems ranging from theft to fraud.
2. Allowing somebody other than a Board member to sign checks, such as a property manager.
3. Insurance, Insurance, Insurance. Failing to maintain “Officers and Directors Insurance” is a costly mistake.
4. Posting or publicly mentioning the names of homeowners whose assessments are delinquent needlessly exposes an association to lawsuits for violations of the various federal and State of Florida collections laws.
5. For condominiums, not maintaining a key to every unit for entry during emergencies can be very costly.
6. Officers and Directors that do not use a separate email address for their association business are making a costly and possibly embarrassing mistake. A director’s emails that contain information regarding association business are considered part of the association’s “Official Records”. Upon written request an owner can review these emails.
7. Officers and Directors that have a separate email address but still use their personal email addresses for association business, are needlessly exposing themselves to having their personal emails reviewed by an owner (see #6 above).
8. Adding late fees and/or administrative charges onto the delinquent account of owners, without confirming the association’s Governing Documents allow the imposition of these charges, needlessly exposes the association to a potential lawsuit.
9. If a quorum of board members meets anywhere and association business is discussed, an open meeting in which owners are required to get notice and are allowed to attend has occurred. “Workshop Meetings” are no exception.
10. The laws governing community associations are constantly changing. Board members that do not stay up to date with these changes risk unintentionally violating the law.
There are certainly many other examples of liability traps. However, by reviewing the above and implementing necessary changes after consultation with an attorney, your association will have a head-start.
