Here Come the Lawyers! US Supreme Court Declares Criminals Have a Right to Live in Your Community Association and a Right to Sue You for Trying to Stop Them

Posted on October 26, 2016 by Gerstin

By Seth Amkraut, Esq.

Click here for .pdf version of this article

Potential Personal Liability for Board Members.

Many community associations in Florida screen prospective buyers and tenants. This screening process typically includes a comprehensive background check into each applicant’s credit, rental, employment and criminal history. Recently, an interpretation by the United States Department of Housing and Urban Development (“HUD”) of a recent United States Supreme Court Case, Texas Department of Housing and Community Affairs, et al v. Inclusive Communities Project, Inc., et al., severely curtailed community associations’ ability to deny sales or rentals to convicted criminals. Enforcing blanket bans on convicted criminals purchasing or renting in your community can now subject both the community association and its Board members, individually, to liability.

With particularly awful circular reasoning, HUD issued an April 4, 2016, guidance memorandum declaring a higher percentage of adult minorities have criminal records when compared to the overall adult population. Therefore, prohibiting a person with a criminal conviction to buy or rent in your community has a “disparate impact” on certain racial minorities tantamount to racial discrimination. Considering racial discrimination in housing violates federal law, HUD rounds the final corner and declares by extension the blanket use of criminal records to deny housing violates Federal law. This is a critical pronouncement effectively outlawing all blanket prohibitions on individuals with a criminal history and calls into question less restrictive policies. Even a narrowly tailored policy excluding only certain types of criminals must accurately distinguish between criminal conduct representing a genuine risk to other residents or property.

Making matters worse, HUD’s guidance on this issue shifts the long-standing burden requiring a Plaintiff to prove their case. Instead, community associations will be presumed to have discriminated against a proposed tenant or purchaser if a person within a protected class (e.g. a racial minority) is denied housing simply due to the person’s prior criminal record. To rebut this presumption, community associations will have to prove the association’s denial of housing to persons with a “criminal history” actually assists in protecting resident safety and/or property. The only exception is for criminal convictions relating to manufacturing or distributing controlled substances. In essence, HUD has determined violent felons, such as murderers or rapists, are less dangerous than people manufacturing or distributing illegal drugs.

Individual board member liability.

As experienced Board members will tell you, often times upset owners (and their accommodating lawyers) name board members individually in lawsuits. More often than not, these lawsuits are defended (and dismissed) by an association’s insurance counsel. However, most community insurance association policies will not offer coverage for housing discrimination or similar claims. Without such coverage, both the association and the individual board members will have to pay out- of-pocket for representation and any resulting damages. Although the individual board members may seek reimbursement from the Association (indemnification), claims for housing discrimination are known as intentional torts or intentional statutory violations. Typically, community associations are not required to indemnify individual board members against claims for damages related to intentional conduct. As you can surmise, the result of not a board member not being indemnified by his/her community association can be financially ruinous.

What can an association do?

There is no one size fits all formula for creating Fair Housing Act compliant criminal background policies. In this new legal landscape, every community association that considers criminal history when evaluating prospective buyers and tenants must be prepared to defend the inevitable claims filed by rejected applicants.

Gerstin & Associates can assist your community association with drafting a criminal background policy allowing for the rejection of the most dangerous applicants while minimizing the risk of liability for discriminatory practices. Contact our office today for a free consultation.

Stay one-step ahead of new legislation, recent case law and new developments that impact your community association by subscribing to the Gerstin & Associates Community Association Newsletter. Please complete and either email or fax the following to: (561) 750-8185 (no cover page needed).

Name: ____________________________ Association name: _____________________

Position at the association (director, property manager, etc.) _____________________

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The Complete Beginner’s Guide to Drones in Community Associations

Posted on March 31, 2016 by Gerstin

Background
Can Florida community associations prohibit drone use? What can a community association do to minimize legal liability if it decides to prohibit or permit drones? Drone usage is only going to increase over time. Acting now to intelligently regulate usage is the best way to safeguard members and increase property values. Following are some pointers to get your community association started in the right direction and ahead of the curve.

In 2015, the Florida legislature passed the “Freedom from Unwanted Surveillance Act” (“Act”). Located at Section 934.50 of the Florida Statutes, the Act limits the use of drones by governmental and private entities. The Act prohibits operating a drone with a camera to record privately owned real property or the occupant of that property in violation of that person’s reasonable expectation of privacy. If a person cannot be seen on a property by anyone at ground level, a reasonable expectation of privacy exists.

The Act exempts the use of drone cameras by a person who is in a profession licensed by the state, to perform reasonable tasks within the scope of practice or activities permitted under that person’s license. Theoretically, a licensed community association manager could use a drone camera to check for violations within the community. Also exempted are “cargo delivery drones” if the drone and its operator are in compliance with the Federal Aviation Administration (“FAA”) regulations. For recreational drones, the FAA has only issued an advisory to stay below 400 feet, within the sight of the operator and away from airports.

How Can/Should Community Associations Regulate Drones?

a) Banning Drones is Not a Good Idea. As with satellite dishes and emotional support pets, outright bans imposed by community associations are often overruled. Avoid having to amend your governing documents if a legislator undertakes drones as a personal cause by using reasonable Rules to regulate drone use in your community association.

b) Prohibit Landing Drones on Common Areas (homeowner associations only). Owners should be prohibited from directing commercial delivery drones to land on a common area. Otherwise, the Association can be subject to liability if a drone related accident occurs. Malfunctioning drones crashing, packages dropped on people and landing on people and pets are only a few of the possible drone safety hazards.

c) Common Area Landing Site (Condos Only). Due to limited space within condominium associations and the nature of high-rise buildings, condominium owners are unable to direct drones to land on their own property. Instead of having a condominium unit owner place himself and others in danger by trying to land a drone on his/her patio or balcony, consider establishing a common area landing site. Safeguarding the site with warning signs and a fence, far away from a crowded space, could minimize potential safety hazards of wandering owners. Considering the time and effort it takes to alter a common area, the sooner a condominium association begins the process, the better off it will be.

d) Restrict Delivery Times. As with land based parcel deliveries, associations should pass Rules that limiting drone delivery times. Permissible drone delivery times should be during the day at times when most residents are at work or away from their homes. Due to noise concerns consider banning drone deliveries on weekends.

e) Liability: associations should consider amending their governing documents to limit the association’s liability for damages to persons or property relating to drone deliveries. The act of ordering a drone delivery should be considered the conduct that signifies the owner’s agreement to indemnify the association for damages to persons or property related to his/her drone delivery.

Stay one-step ahead of new legislation, recent case law and new developments that impact your community association by subscribing to the Gerstin & Associates Community Association Newsletter. Please complete and fax the following to: (561) 750-8185 (no cover page needed).

Name: ____________________________ Association name: _____________________
Position at the association (director, property manager, etc.) _____________________
Email address: ______________________ Telephone number: __________________

The 2016 Insider’s Guide to Newly Proposed Florida HOA, Condo & Property Management Laws

Posted on December 9, 2015 by Gerstin

The 2016 Florida Legislative Session will begin on January 12, 2016. In Florida’s House of Representatives, three bills seeking to drastically alter the governance and operation of HOAs and property managers have already been filed.

Florida 2016, HB 653, grants authority to the Division of Condominium, Timeshares, and Mobile Homes to regulate homeowner associations in a manner similar to condominium associations

Florida 2016,HB 665-Property Managers: seeks to place stricter licensing requirements and disciplinary proceedings on property managers and property management companies.

Florida HB 2016 667 seeks to combine HOA statutes (720), condo statutes (718) and cooperatives statutes (7210) into one body of law entitled “Common Interest Communities Act”.

None of these pending bills have a Senate companion.

2015 Florida Real Estate and Community Association Legislative Update

Posted on July 16, 2015 by Gerstin

For printable .pdf version click here.

New 2015 Florida Statutes Affecting Both Condominium and Homeowner Associations:

1. Voting Rights Suspensions (applies to HOAs and condos): An association may now suspend the voting rights of a member or unit due to the non-payment of any fee, fine or other monetary obligation due to the association which is more than 90 days delinquent. Owners whose voting rights have been suspended are not counted towards the total number of votes of a homeowners’ or condominium owners’ association. Further, a suspension of voting or common element use rights can apply to all of an owner’s tenants and guests, including multiple unit owners, even if the delinquency that resulted in the suspension arose from less than all of the multiple units owned by a member.

2. Proxies (applies to HOAs and condos): A copy of a proxy is valid and can be transmitted to a community association via email (scan) or by fax. Facilitates voting from absentee owners.

3. Electronic Voting (applies to HOAs and condos): Allows for the establishment of online voting. Specific requirements are set forth in the law, including the passage of a resolution by the Board authorizing online voting. Owners that do not affirmatively consent to online voting are required to be given paper voting materials.

4. Fines (applies to HOAs and condos): Prohibits board members and individuals residing in a board member’s household from serving on a Fining Committee. The new law also requires a community association’s Board of Directors, not its Fining Committee, to levy a fine. In turn, a Fining Committee’s authority is limited to rejecting or approving the fine levied by the Board. A fine that is rejected by a Fining Committee is not imposed. The new law fails to set forth the notice requirements to owners for the Board of Directors meeting in which a fine is levied.

5. Electronic Notice (applies to HOAs and condos): No longer is the authority to transmit association notices required to be in the association’s Governing Documents. A member’s consent to electronic transmission is now the only requirement.

6. Service Animals (applies to HOA’s and condos): New law specifies the conditions where a service animal may be removed or excluded, penalties are provided for the misrepresentation of a service animal. In addition to the criminal penalties in the existing law, a business unlawfully denying or interfering with an individual’s right to use or train a service animal may be sentenced to perform 30 hours of community service with an organization that serves individuals with disabilities. This law does not affect “emotional support animals” which are the majority of the exceptions issued in pet restricted communities. As such, this new law will have little effect on the issue of emotional support animals in a pet restricted community.

7. Required Notice to Tenants (applies to HOAs and condos): A bona fide tenant must be given at least 30 days’ notice before being evicted from a foreclosed home.

8. Transient Occupancy, Squatters (applies to HOAs and condos): New law removes “transient occupancy” from the landlord-tenant regulation under Chapter 83. Squatters and transients can be removed from a residence by law enforcement officials instead of having to file for an eviction.

9. Drones (applies to HOAs and condos): If a reasonable expectation of privacy exists, a person, state agency or political subdivision are prohibited from using a drone to capture an image of privately owned real property or of the owner, tenant, or occupant of such property with the intent to conduct surveillance without his or her written consent. The existing law enforcement exception, subject to certain conditions, was expanded to include activities by any person or entity engaged in a business licensed by the state (such as property appraisers, utilities, cargo delivery systems). Civil remedies for violations include compensatory damages, punitive damages and injunctive relief.

10. Construction Defects (applies to HOAs and condos): In addition to the existing requirements of Chapter 558, Florida Statutes, this new law introduces a new method for resolving construction defect disputes before filing a lawsuit.

11. Private Property Rights (applies to HOAs and Condos): Bert Harris Private Property Rights Act was amended to create a cause of action for damages if a landowner is subjected to local and state governmental requirements so onerous they are considered “unconstitutional exactions”. Landowners now have a legal remedy when a state or local government make extortionate demands on property owners in exchange for permit approvals. Pre-suit notice to the government is required. If a lawsuit is filed, the governmental entity is required to prove the exaction complies with the standards set by the U.S. Supreme Court and the property owner must prove damages. The measure of damages recoverable are clarified and include injunctive relief, costs and attorney fees. Governmental entities may recover attorney fees and costs if they prevail.

New 2015 Florida Statutes Affecting Condominium Associations Only

1. Application of Assessment Payments (applies to condos only): The use of “full and final” payment language on a check for partial payment does not apply to, nor overcome the existing statutory requirements for applying the partial payment of assessments (accrued interest, administrative late fees, costs, attorney’s fees, the delinquent assessment). Allows an association to accept a partial payment without fear an owner is trying to establish an “accord and satisfaction” fact pattern to eliminate the remaining amounts owed.

2. Damage Not Caused by Insurable Event (applies to condos only): Clarifies damage not caused by an insurable event is not automatically an association responsibility. Instead, the unit owner or the association is responsible for non-insurable events according to the reconstruction, repair or replacement provisions of the association’s Governing Documents.
3. Official Records (condos only): Non-written records (audio recordings, videos of board meetings or security camera video recordings, etc.) are not “official records” available for owner inspection as a matter of right.

4. Extension of Bulk Assignee/Bulk Buyer Classification (Condos only): The bulk buyer law is extended until July, 2018. Bulk buyers of distressed condominium projects are granted additional immunity from various typical developer obligations.

5. Expenses in Annual Budget (condos only): Extends and clarifies the minimum applicable expenses that have to be listed in an annual budget. Full list of expenses available at Florida Statute §718.504(21).

6. Lien for Late Fees (condos only): Administrative late fees can now be included on a claim of lien for past due assessments. Important for condominiums associations whose Governing Documents do not provide for the imposition of late fees.

7. Condominium Association Terminations (condos only): New restrictions imposed on the termination of condominiums created by the conversion of existing improvements under Part VI of the Condominium Act. The methodology for determining market value of condominium units is clarified. First mortgages are now required to be fully satisfied prior to termination of the condominium. Further, if a termination vote fails, another vote to terminate may not be considered for 18 months. When holding a termination vote, voting interests that have been suspended are still entitled to vote on the termination. In addition, a termination vote may not take place until 5 years after the recording of the declaration of condominium, unless there is no objection to the termination.

New 2015 Florida Statutes Affecting Homeowner Associations Only

1. Amendments (HOAs only): Failure to provide the required statutory notice of the recordation of an amendment does not nullify or affect the validity of the amendment.

2. Naming Florida Statute Section 720 (HOAs only): Chapter 720 of the Florida statutes is now officially known as the “Homeowners’ Association Act”.

3. Board Member Delinquencies/Eligibility (HOAs only): Any person who is delinquent in the payment of any financial obligation as of the last day he or she could nominate himself or herself to the board, is not eligible to be a candidate and may not be listed on the ballot. Additionally, any director 90 days delinquent in the payment of any monetary obligation is deemed to have abandoned his or her directorship. In such instances, a vacancy required to be filled according to law and the association’s Governing Documents is created.

Stay one-step ahead of new legislation, recent case law and new developments that impact your community association by subscribing to the Gerstin & Associates Community Association Newsletter. Please complete and fax the following to: (561) 750-8185 (no cover page needed).

Name: ____________________________

Association name: _____________________

Position at the association (director, property manager, etc.) _____________________

Email address: ______________________

Telephone number: __________________

U.S. Supreme Court Bankruptcy Ruling Will Help Florida Community Associations

Posted on June 3, 2015 by Gerstin

In Bankruptcy, community association liens are often times “stripped off” if the home is worth less than the amount of the mortgages that are securing it. The United States Supreme Court put an end to that practice as it relates to second mortgages which presumably would also apply to community association liens. Full article here

Florida Supreme Court Issues Ruling Regarding Property Managers

Posted on June 1, 2015 by Gerstin

Charged with administering Florida’s laws regarding the Unauthorized Practice of Law, the Florida Supreme Court recently issued an opinion stating the following tasks must be performed by an attorney:

• draft a claim of lien and satisfaction of claim of lien;

• prepare a notice of commencement;

• determine the timing, method and form of giving notices of meetings;

• determine the votes necessary for certain actions by community associations;

• address questions asking for the application of a statute or rule;

• advise community associations whether a course of action is authorized by statute or rule;

• prepare a certificate of assessments due once a delinquent account is turned over to the association’s lawyer;

• prepare a certificate of assessments due once a foreclosure against the unit has commenced;

• prepare a certificate of assessments due once a member disputes in writing the amount owed;

• draft amendments (and certificates of amendment that are recorded in the official records) to declaration of covenants, bylaws and articles of incorporation when members have to vote on these documents;

• determine the number of days to be provided for statutory notice;

• modify limited-proxy forms promulgated by the state;

• prepare documents concerning the right of the association to approve new prospective owners;

• determine affirmative votes needed to pass a proposition or amendment to recorded documents;

• determine the number of owners’ votes needed to establish a quorum;

• draft pre-arbitration demand letters;

• prepare construction lien documents;

• prepare, review, draft and have substantial involvement in the preparation and execution of contracts, including construction, management and cable television contracts;

• identify, through the review of title instruments, the owners to receive pre-lien letters; and

• oversee any activity that requires statutory or case law analysis to reach a legal conclusion.

Full opinion available here sc13-889 .

New Proposed Federal Regulation: Amateur Radio Antennas & Towers Must Be Allowed in Your Community Association

Posted on March 24, 2015 by Gerstin

Presently pending in the United States Congress, H.R. 1301 is a bill proposed to protect the installation and use of amateur radio antennas and towers in community associations. According to the bill, “[t]here is a strong Federal interest in the effective performance of amateur radio stations established at the residences of licensees”. In regard to a community association’s restrictive covenants, the bill applies existing FCC policy used when dealing with State restrictions on antennas and towers to community association declarations. The bill would, among other things, require community association “to permit erection of a station antenna structure at heights and dimensions sufficient to accommodate amateur service communications.” H.R. 1301 would also apply to private office parks and essentially any privately owned land with use restrictions related to amateur radio antennas and towers.

The full text of the bill is available here: HR Bill 1301, United States Congress, Amateur Antennas and Towers.

Hidden Dangers–10 Declaration Provisions Every Community Association Must Change

Posted on February 4, 2015 by Gerstin

10 Declaration Provisions Every Community Association
Must Change

Click here to download the full report.

The Magic Language Exception. Known as the “Magic Language Exception”, inserting the words “as amended from time to time” after a Declaration’s statement of adherence to Florida law allows the Declaration to automatically adapt to changes in Florida law. Failing to incorporate the Magic Language Exception into a Declaration often times results in the loss of income from, and the benefits of, changes in Florida’s law related to the collection of delinquent assessments. Coral Isles East Condominium Assoc. v. Snyder, 395 So. 2d 1204 1981.

The percentage for passage of an amendment is too high. Many associations are stuck with damaging and confusing Governing Documents because the threshold of affirmative votes for an amendment is too high. Consider amending your Governing Documents to a lower threshold of affirmative votes needed to pass an amendment in the future.

Requiring tenant approval without the authority to do so. Many community associations require pre-approval of tenants without the authority to do so in their Governing Documents. Undertaking an action (and possibly collecting a fee to do so) without the requisite authority can result in an expensive lawsuit.

Enforcing Outdated and Illegal Provisions. Banning solar panels, improper age restriction enforcement (16 instead of 18), banning satellite dishes or improper debt collection techniques are only a few of the many outdated provisions in the Governing Documents of many community associations. Lack of intent and ignorance of the law is not a defense if the association is sued. Guidance to the Board of Directors and the amendment of these provisions should be undertaken.

Failing to Rein in Rentals. Community associations, especially condominium associations, that do not limit renting in their communities may scare away lenders from lending to owners or may lose their FHA accreditation. Consider a Declaration amendment restricting new owners from renting until at least two years after their purchase.

Releasing Homes Purchased at a Foreclosure Auction From Delinquent Assessments. Although Florida law limits a lender’s liability for past due assessments, the same restriction does not apply to third party purchasers at a foreclosure auction, unless otherwise stated in your association’s Governing Documents. Consider amending all provisions that release third party purchasers of a foreclosed home from payment of past due assessments.

Borrowing limits. Many older community associations have bank borrowing limits set at amounts so low such loans would only be obtainable from a payday lender. Consider eliminating or increasing borrowing limits.

Spending Limits. As a way to attract buyers in an era of “community association board’s waste money” many developers incorporated into their Governing Documents limits on the amount a Board of Directors can spend without owner approval. Unfortunately, the effects of inflation and increase costs have locked many of these community associations into unrealistic spending limits. Consider eliminating or increasing the amount your Board of Directors can spend without first obtaining owner approval by inserting an amendment that allows for a per year increase formula based on inflation.

Unattainable Quorum. Florida law limits the percentage required for a members’ meeting quorum to 30% of the members. Nevertheless, many community associations are still unable to attain a quorum to conduct important business. Consider an amendment that lowers the required quorum for a member’s meeting below 30%.
Regulating Guests. Associations with guests residing in units in the absence of an owner or approved tenant often find themselves ill prepared when a problem arises. Declaration provisions relating to the use of homes by guests in the absence of an owner or approved tenant stops people from circumventing rental restrictions. Consider an amendment stating guests can only occupy a unit so many times per year. Another approach to dealing with long-term guests (e.g., guests staying for more than 30 days) is to require them to be screened in the same manner as tenants.

For a free analysis of your association’s community association Governing Documents please complete and fax the following to: (561) 750-8185 (no cover page needed) A representative from Gerstin & Association will contact you to set up your community association’s free Governing Document analysis.

Name: ____________________________

Association name: _____________________

Position at the association (director, property manager, etc.) _____________________

Email address: ______________________,

Telephone number: __________________

7 Deadly Sins of Collecting Delinquent Assessments

Posted on February 2, 2015 by Gerstin

7 Deadly Sins of Collecting Delinquent Assessments

Click here to download the full report.

1. Failing to follow the specific procedures in your community association’s Governing Documents such as written notice from the association of the delinquent debt. Often times such failures, when objected to by a delinquent owner, requires the entire collection process to be restarted. Sometimes, such failures lead to expensive lawsuits and a large payout to the delinquent owner.

2. Agreeing to payment plans that are not in writing. A payment plan that is not in writing, is not worth the paper it is written on. Secure all payment plans in writing.

3. Extending grace periods and granting concessions to neighbors and friends but no one else. It is understandable you want to help a neighbor or friend that is having problems with paying your association’s assessments. However, each owner has to be treated in the same, uniform manner. Extending grace periods only to friends or neighbors exposes the entire community association to an expensive lawsuit from an aggrieved owner to whom a grace period was refused.

4. Publishing a list of delinquent owners. Shaming debtors is not only insensitive, it violates the Federal Fair Debt Collection Practices Act and exposes the association to an expensive lawsuit.

5. Failing to follow the specific collection deadlines in your community association’s Governing Documents. If the collection deadlines are too long or too short, have them amended. In the meantime, collections must proceed in accordance with the specific deadlines contained in your association’s Governing Documents. Failure to do so can easily lead to an expensive lawsuit and a large payout to the delinquent owner.

6. Failing to add interest and late fees onto delinquent assessments. Many community associations are unaware of their ability to impose late fees or are unable to properly calculate interest. Foregoing late fees and interest can significantly undermine a community association’s financial stability.

7. Failing to timely forward a delinquent account to your attorney for collection. Depending on whether it is a condominium or homeowners’ association, attorneys are required to wait between 60 and 90 days prior to the institution of foreclosure litigation. Banks are required to pay only 12 months of delinquent assessments. Sometimes, a bank will wait years before filing a foreclosure lawsuit. Association’s that fail to act timely and foreclose upon a delinquent owner’s home and rent the home until the bank takes title, can cost an association a year or more of assessment payments.

For help with avoiding the 7 Deadly Sins of Collecting Delinquent Assessments, and for a free analysis of your association’s community association collections, please complete and fax the following to: (561) 750-8185. A representative from Gerstin & Association will contact you to set up your community association’s free collection analysis.

Name: ____________________________

Association name: _____________________

Position at the association (director, property manager, etc.) _____________________

Email address: ______________

Telephone number: _____________________

Pet Weight Limits Don’t Apply to Emotional Support Animals in Florida’s Community Associations

Posted on August 28, 2014 by Gerstin

Another example of the expanding scope of the Fair Housing Act, is the recently decided case of Bhogaita v. Altamonte Heights Condo. Ass’n, Inc., No. 13-12625 (11th Cir. Aug. 27, 2014). In Bhogaita a jury was persuaded the Altamonte Heights Condominium Association discriminated against the Plaintiff when it enforced its pet weight policy and demanded a removal of the plaintiff’s emotional support dog. The jury awarded Bhogaita $5,000 in damages, and the district court awarded Bhogaita more than $100,000 in attorneys’ fees. The association appealed both the judgment entered on the jury’s verdict and lost the appeal. Click the link below for the full text of the case

Bhogaita v. Altamonte Heights Condo. Ass’n, Inc., No. 13-12625 (11th Cir. Aug. 27, 2014)–Fair Housing Act-disability provisions-pet weight limit for emotional support dog failed to accommodate disability