POINCIANA —
Poinciana residents who are in disagreement with their homeowners association are rooting for two Florida house bills that have just been filed.
SunSentinel, January 17, 2017. Attorney Joshua Gerstin recently provided Alliance of Delray Residential Associations members with advice on medically necessary pets, making decisions through emails and governing documents, topics that community board of directors will face this year. Read full article here.
To watch the video presentation or to download the presentation by Joshua Gerstin, Esq. click here.
Please click here for a copy of the January 4, 2017 presentation of:
Presented by Joshua Gerstin, Esq. for the Delray Alliance of Residential Associations.
Please click here for a copy of the January 4, 2017 presentation.
By Seth Amkraut, Esq.
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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.
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.
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.) _____________________
Email address: ______________________ Telephone number: __________________
–By Joshua Gerstin, Esq.
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June 1, 2016
1. Time is running out. Condominium associations with more than two floors have until December 31, 2016, to vote on forgoing the State of Florida’s mandated sprinkler retrofitting/life safety system requirements or obtain a building permit for its installation.
2. The required retrofitting includes installing a fire sprinkler system or other life safety system within the condominium association’s common elements and individual units.
3. By December 31, 2016, a residential condominium association that has not voted to forego retrofitting must initiate an application for a building permit for the required installation demonstrating the association will become compliant by December 31, 2019.
4. If a condominium association wants to opt-out of the retrofitting requirement it must act now and obtain a vote by the majority of all voting interests through either: (1) a limited proxy; (2) a ballot cast at a duly called membership meeting with at least 14 days advance notice; or (3) the execution of a written consent by a member.
5. No later than 30 days after the opt out vote, results must be mailed or hand delivered to all unit owners.
6. An opt-out vote by the members is effective only upon its recording in the county’s Official Public Records. A report must be filed with The State of Florida’s Division of Condominiums, Timeshares and Mobile Homes, indicating the membership vote and enclosing proof the vote was recorded in the county’s Official Public Records.
7. After the recording of a successful opt out vote, all owners are required to provide a copy of the opt-out vote to all future potential purchaser or tenants of their unit.
8. Opting out of fire sprinkler/life safety system retrofitting could pose a major fire hazard, cause an increase in insurance premiums and a decrease in property values.
9. Deciding to forgo fire sprinkler retrofitting should be based on more than the cost of compliance. Local fire departments should be consulted to ensure adequate life-safety protections are in place. At a minimum, a condominium association should consider the following:
a) Does the association have a fire emergency plan? If so, have the residents and employees been given full instructions on the details of the plan?
b) Can the buildings be evacuated to the street without interfering with emergency personnel?
c) How will the association handle the evacuation of physically challenged residents?
d) Are all exit doors and exit ways marked, clear and well lit in the dark?
e) Are emergency items (fire extinguishers, defibrillators, etc.) in place and functional?
Please do not hesitate to contact our office for further information regarding Florida’s sprinkler retrofitting requirements for condominium associations.
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 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.
Add a Hyatt House to the growing list of new hotels expected to debut in Palm Beach County within two years. Read more
According to Richard Bennett of JDsupra.com, late last week a federal court in Florida tossed a condominium association’s claims that it was entitled to replace undamaged hallway carpeting, wallpaper, baseboards, and woodwork in order to “achieve aesthetic uniformity” with similar hallway components replaced after water damage. In Great Amer. Ins. Co. v. Towers of Quayside No. 4 Condominium Ass’n., 2015 U.S. Dist. LEXIS 150358, 2015 WL 6773870 (S.D. Fla., Nov. 4, 2015), the court held that replacing undamaged property to insure “matching” is only appropriate if the repairs concern “a continuous run” of items such as that.
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Clerk of Court of Miami-Dade County
Clerk of Court of Broward County
Clerk of Court of Palm Beach County
Broward County Property Appraiser
Miami-Dade County Property Appraiser
Palm Beach County Property Appraiser
Realtor® Association of Miami-Dade County
REALTOR® Asociation of Greater Fort Lauderdale
Realtors Assoc. of the Palm Beaches
This general site for the U.S. Department of Housing and Urban Development contains information on homes and communities.
National Association of Realtors®
This website of the National Association of Realtors® contains information about the real estate industry, including a section on real estate law and policy.
RAMB – Realtor® Association of Greater Miami and the Beaches
This site is a comprehensive resource for residential and commercial real estate in the greater Miami area.
This site includes numerous real estate related resources, including links to information about buying, selling, financing, and improving real property.
This resource contains a collection of data on U.S. housing from the Census Bureau.
This Web site from the National Housing Conference, a non-profit organization dedicated to advancing affordable housing for every American, contains housing news and articles and a Paycheck to Paycheck interactive database that allows visitors to select an occupation and a community to determine affordability of housing.
The National Housing Institute site contains information and articles regarding affordable housing and building communities.
The U.S. Department of Housing and Urban Development offers this database containing abstracts and citations to research reports, articles, books, and data on housing policy, building methods, economic development, urban planning and other similar topics.
Home Mortgage Disclosure Act (HMDA)
The Federal Financial Institutions Examination Council Web site contains several reports on home mortgage lending and mortgage insurance in addition to statistical data and other information.
The Leadership Conference on Civil Rights Education Fund Web site contains resources regarding fair housing issues, including summaries of major federal and state fair housing laws.
“Winners never quit and quitters never win.”
--- Vince Lombardi