Community Association Industry Legal Blog

For lenders, prior to taking a mortgage on property within a condominium or homeowners’ association community, it is important to review and understand the association’s governing documents (declaration, by-laws, and articles of incorporation) to determine the priority of an assessment lien and a mortgage. Just because a mortgage was recorded prior to the assessment lien, does not mean the lender’s mortgage will take priority over the association’s assessment lien. The language of the association’s governing documents is critical in determining the priority of these encumbrances.

The directors of Florida community association are obligated to discharge their responsibilities to the community in good faith. Board decisions are generally protected by the “business judgment rule” and the theory behind the business judgment rule is that Courts should not substitute their judgment for the judgment of the elected or appointed board members. Simply stated, Courts must give deference to a community association’s decision if that decision is within the scope of the association’s authority and it is reasonable – that is, not arbitrary, capricious, or in bad faith.

This article is Part IV of a four part series. Part I was meant to inform the Board of a Condominium or Homeowners Association of some basic steps that should be taken when significant latent construction defects are discovered. Part II was meant to inform the Board about the process of retaining an expert witness and serving a Notice of Claim. Part III was meant to inform the Board about common insurance coverage issues, whether to bring a direct claim against the subcontractors and whether the Board can be forced to arbitrate the claim. This article will discuss how to quantify damages and will discuss the mediation process.

This article is Part III of a four part series. Part I was meant to inform the Board of a Condominium or Homeowners Association of some basic steps that should be taken when significant latent construction defects are discovered. Part II was meant to inform the Board about the process of retaining an expert witness and serving a Notice of Claim. This article will discuss how to determine if the Board is obligated to arbitrate its claims, whether to bring direct claims against the subcontractors and will discuss common insurance coverage issues.

This article is Part II of a four part series. Part I was meant to inform the Board of a Condominium or Homeowners Association of some basic steps that should be taken when significant latent construction defects are discovered. This article will discuss the retention of the lead expert witness and providing the statutorily required notice of defect claim. Part I stressed that an attorney should be retained shortly after latent construction defects are discovered and that only emergency repairs should be made without first consulting an experienced attorney.

In 2003, the Florida Legislature enacted 718.112(2)(l) as a statutory scheme to require the retrofitting of fire sprinklers for residential condominiums. The statute first began specified that the condominium association may not vote to forego such retrofitting with a fire sprinkler system of common areas in “high-rise building” which was defined as “greater than 75 feet.” That language remained consistent in the statute until 2010. However, in the 2010 statute revision, the language referring to “high-rise” buildings “greater than 75 feet” in height was completely removed from the statute. Now all condominium association need to consider and address this requirement. A discussion on fire sprinkler retrofitting is the subject of this blog post.

Condominium associations and homeowner associations (HOA) are abundant in Florida. These types of associations are typically governed by declarations/covenants and restrictions, as well as bylaws and articles of incorporation (collectively referred to in this post as the governing documents). These associations are also governed by detailed provisions of the Florida Statutes. Chapter 718 (condominiums) and Chapter 720 (home owners associations).

What’s that smell? What’s that sound? What am I looking at? Whatever it is offends me. Could it be a nuisance? Condominium associations in Florida deal with nuisances on a regular basis, from sight, smell and sounds. The biggest problem in addressing nuisance issues is defining exactly what constitutes a nuisance. Generally, nuisance is defined in Black’s Law Dictionary as “a condition or situation that interferes with the use or enjoyment of property.” This definition is vague and leaves room for interpretation.

Homeowners’ associations in Florida are governed by Florida Statute Chapter 720. This chapter of the Florida Statutes is known as the Homeowners’ Association Act. Florida Statute Section 720.3015. The statutory definition of a Florida homeowners’ association (“HOA”) is “a Florida corporation responsible for the operation of a community or a mobile home subdivision in which the voting membership is made up of parcel owners or their agents, or a combination thereof, and in which membership is a mandatory condition of parcel ownership, and which is authorized to impose assessments that, if unpaid, may become a lien on the parcel.” Florida Statute Section 720.301(9). An HOA does not include a community development district or other similar special taxing district created pursuant to statute. Florida Statute Section 720.301(9).

The Board of a Condominium Association or Homeowners Association has many decisions to make when it discovers telltale signs of construction defects in common property. These latent construction defects can manifest themselves in a number of different ways, including but not limited to, water intrusion, peeling paint, staining, wood rot, cracking of stucco, concrete spalling, curling shingles, or cracking or separating sealant. Construction defects can also occur in other property that may be owned by a community association or a community development district (“CDD”), such as roads, pools, tennis courts, or other property commonly owned by the association or CDD.