Community Update

Is Second-Hand Smoke Leaving a Bad Taste in Your Mouth?

By: Jennifer Horan, Esq.

Long gone are the days when you would be greeted at a restaurant with the question; “Smoking or non-smoking?” Frequent flyers can no longer light up on flight. In fact, many states have banned smoking in public places. In the Sunshine State, the Florida Clean Indoor Air Act, Chapter 386 of the Florida Statutes, prohibits smoking in all enclosed indoor workplaces. The Act is generally accepted to apply to both condominium and homeowners associations’ indoor common elements. But what about smoking at the pool, the pickleball courts, or the outdoor tiki bar? Assuming that your association’s governing documents grant the board of directors rulemaking authority over these common areas, and most do, the board of directors can adopt reasonable rules to ban or regulate smoking in those areas.

Click here to read more!

Dwork v. Executive Estates of Boynton Beach Homeowners Association, Inc.,
219 So.3d 858 (Fla. 4th DCA 2017)

By: Jay Roberts, Esq.

In a recent CUP we discussed the Beachwood Villas v. Poor case, which gives the legal test for creating Board-made rules. But of course, creating a restriction is only half the battle. The next issue community leaders face is proper enforcement of a restriction. Proper enforcement procedure, and what can go wrong if it is not done, is the lesson of this month’s THIS CASE.

Jonathan Dwork (“Owner”) owned a single-family home in the community of Executive Estates of Boynton Beach, which is governed by Executive Estates of Boynton Beach Homeowners Association, Inc. (“HOA”). The HOA’s governing documents required owners to keep their roofs, fences, and driveways in good condition. HOA sent several notices to Owner stating that he was in violation of the governing documents. Receiving no compliance or response, the HOA began down the route of the fining procedure pursuant to F.S. §720.305(2). The HOA sent a notice to Owner that in thirteen days there would be a hearing with respect to whether fines would be imposed. The HOA fines committee did approve the fines. Fines remained unpaid and the HOA recorded a claim of lien and later filed a two-count lawsuit seeking to foreclose the claim of lien or, in the alternative, monetary damages for the fines imposed. The lawsuit also sought to have its attorney’s fees awarded by the court. The HOA prevailed on the monetary damages count and awarded the HOA its attorney’s fees. Owner appealed.

In considering the validity of the rules adopted by the association, the Fourth District held that the Board had rule making authority in the condominium documents; and the rules did not contravene any right granted by, or reasonably inferable from, the declaration. Therefore, the court held that the rules were valid. The court also noted that rules can be found to be invalid when they are unreasonable or arbitrary. However, as these issues were not raised before the trial court, it was not an issue reviewed on appeal.

The appellate court pointed out that this case ultimately involves a matter of statutory interpretation. The appellate court pointed out that F.S. §720.305(2)(b) states that a fine or suspension may not be imposed unless the board first provides at least 14 days’ notice to the parcel owner of the committee hearing on the issue. The HOA argued that it “substantially complied” with the statutory provisions by giving thirteen days’ notice. The appellate court was clear that F.S. §720.305(2)(b) must be “strictly complied” with, and that substantial compliance when dealing with this statute did not cut it. The appellate court reversed and remanded the lawsuit to the trial court with a mandate to enter judgment in favor of Owner (although not discussed, this likely meant awarding Owner his attorney’s fees and court costs as well).

The lesson of THIS CASE should be painfully clear. If you do not follow proper protocols in taking enforcement action, it does not matter how “in the wrong” the violator was, you will lose the legal battle. Be proactive and talk to your association attorney about setting up an enforcement protocol which makes sure that all proper due process procedures are met at each step of enforcement. Anything less could end up being a very expensive lesson.

What to Do When a Vendor Damages Association Property

By: Benjamin T. Johnson, Esq.

Service providers often cause property damage in community associations. Imagine a furniture delivery driver in a rush to make his next appointment, clipping your community’s security gate and taking a portion of it down the road, or a garbage truck leaking hydraulic fluid on your community roadways, leaving permanent stains. What should your association do when such damages occur? There is no perfect answer, but this guide may help your association navigate a run-in with vendor-caused property damage.

Click here to read more!