Florida ROC : Florida Mobile Home & RV Lawyer & Attorney : Scott Gordon : Lutz Bobo Telfair Eastman Gabel & Lee Law Firm : FL Condo & Homeowners Associations

Several of the resident-owned communities we work with have had the great displeasure of dealing with complaints filed by residents under the Fair Housing Act.   Most of these complaints are without merit and are eventually resolved in favor of the community.  Quite often, the resident filing the complaint is simply trying to delay an eviction action, has a personal vendetta against the manager or one or more board members, or is attempting to prevent the association from exercising its rights to determine whether a "reasonable accommodation"should be granted to the resident.   

It's not a stretch to say that any resident that files a Fair Housing complaint is often regarded by many in the community as a major aggravation that is costing the association money and creating conflict and misery for his or her neighbors.   Occasionally, other residents in the community (and even a few board members) will strongly suggest that the ROC would be better off if the association simply filed an action to evict the complaining resident.

As most of you already know, such a course of action is a recipe for certain disaster.  The latest example can be found in a press release issued by the Department of Housing and Urban Development on July 16, 2010.   

The press release summarized the decision of a HUD Administrative Law Judge who ordered an Iowa landlord to pay $52,150 in damages and civil penalties for retaliating against a single mother of three by threatening to evict her because she filed a housing discrimination complaint.

The brief facts are as follows:

• The mother's fair housing complaint alleged that the landlord refused to rent her a three-bedroom apartment and unjustly charged her a higher security deposit because of her sex
• HUD found no evidence of sex discrimination
• However, HUD nonetheless charged the landlord and the landlord's management company with unlawfully retaliating against the tenant by terminating her lease and attempting to evict her because she filed the fair housing complaint

It's important to note here that it was the action of retaliating against the renter that formed the basis of this judgment--even in the absence of any finding of discrimination.

Please keep this case in mind the next time one of your residents confronts you and demands that the association evict the "gadfly" that's filed a fair housing complaint.  The last time I checked, $52,000 was still a lot of money--whether in Iowa or in sunny Florida.

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As many of my readers know, Senate Bill 1196 amended Florida Statute Section 718.116(1)(b) to provide that a first mortgagee or its successor or assignee who acquires title to a condominium unit by foreclosure or by deed in lieu of foreclosure is required to pay the unpaid assessments that became due before the mortgagee's acquiring title in an amount equal to the lesser of:

1. the unit's unpaid common expenses and regular periodic assessments which accrued or became due during the 12 months immediately preceding the acquisition of title and for which payment in full has not been received by the association; or
2. one percent of the original mortgage debt

The provisions of amended F.S. Section 718.116(1)(b) may not apply in certain situations where the first mortgagee fails to join the association as a party in the foreclosure action.

Prior to SB 1196, a condominium association was only entitled to the lesser of 6 months' unpaid common expenses and regular periodic assessments or one percent of the original mortgage debt.

With this amendment, condominium associations find themselves granted the same relief as mandatory homeowners associations--the latter through the provisions of F.S. Section 720.3085.

What about cooperative associations?

I've searched through Chapter 719 (which governs cooperatives) and SB 1196 and can find no language that either establishes or limits the liability of any one acquiring title to a cooperative unit by foreclosure or by an assignment in lieu of foreclosure for unpaid common expenses or regular periodic assessments owed to the cooperative association.

This is one of many examples of the differences between Chapters 718, 719, and 720 of the Florida Statutes. 

When it comes to resident owned communities, one size truly does not fit all and a board or manager should consult with the association's attorney when dealing with these unpaid assessments--especially if the ROC is a cooperative.

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I've been hesitant in posting entries on the oil spill in the Gulf of Mexico as the media's coverage has been both numbing and overwhelming.   However, I read several articles over the July 4th weekend that I wanted to bring to the attention of my readers:

• The Sarasota Herald-Tribune ran a lengthy story this weekend on how the local real estate market has been affected by the oil spill.   Even though no oil from the spill has endangered the beaches in west central Florida and much of Florida's coastline may never see any oil from the spill, potential home purchasers are nonetheless walking away from contracts and forfeiting deposits rather than closing on real estate purchases in our area.
• The New York Times had an article on an inventive marketing campaign aimed at educating potential visitors to Florida that most of our beaches remain untouched by the oil spill. 
• The July 5, 2010 edition of Sports Illustrated featured a story by Gary Smith, one of the magazine's most incisive writers, entitled "7 Days in the Life of a Catastrophe."   It's an eye-opening and powerful report on the devastation caused by the spill.

There is a bit of good news to report:

• The New York Times also reported on changes by the Federal Housing Administration that are expected to widen the range of lenders who can offer loans for purchases of manufactured homes.
• In addition, the National Flood Insurance program has been extended to September 30, 2010 and has been made retroactive.  This will allow real estate sales that had been on hold due to an inability to obtain flood insurance coverage to now close and will permit new policies to be issued through September 30, 2010.

Finally, from Sunday's Sarasota Herald-Tribune, please read Tom Lyons' column on a rather curious response from the activities committee at the  La Casa ROC in North Port to complaints from several residents who apparently did not want to hear "O Canada" played at events in the community.   I'll think about this column the next time I attend a hockey game in Tampa.

We'll get back to Senate Bill 1196 in my next entry.

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It appears that, effective July 1, 2010, members and employees of condominium associations and mandatory homeowners' associations in Florida will be entitled to some additional privacy protections thanks to Senate Bill 1196. 

The Florida legislature, through Senate Bill 1196, has revised Florida Statute Sections 718.111(12) and 720.303(5) to provide that the following records--in addition to those already protected--shall not be accessible to condominium unit owners or subdivision parcel owners:

• Personnel records of association employees, including, but not limited to, disciplinary, payroll, health, and insurance records
• Social security numbers, driver's license numbers, credit card numbers, electronic mailing addresses, telephone numbers, emergency contact information, any addresses of a unit or parcel owner other than as provided to fulfill the association's notice requirements, and other personal identifying information of any person, excluding the person's name, unit or parcel designation, mailing address, and property address
• Any electronic security measure that is used by the association to safeguard data, including passwords
• The software and operating system used by the association which allows manipulation of data, even if the unit or parcel owner owns a copy of the same software used by the association.

However, for some reason, Florida Statute Section 719.104(2), which governs the official records of a cooperative association, was not amended by Senate Bill 1196.  

Members and employees of cooperatives thus will now have less privacy protection than their counterparts in condominiums and subdivisions.

I assume that this was not intended by Florida's legislators and that a "glitch bill" will be introduced at the next session in Tallahassee to ensure members and employees in all categories of resident owned communities are given equal privacy protection. 

In the meantime, members of cooperatives might want to bring this to the attention of their state legislators.

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I'm posting links for my blog readers to two articles from last Sunday's Sarasota Herald -Tribune and a story that was summarized in a recent edition of the Florida Manufactured Housing Association's newsletter.

• The first article from the Herald-Tribune focuses on the tragic consequences of an accident involving a golf cart.  I've covered this topic in the past but I remain very concerned that many residents in the communities we work with still do not understand that golf carts are vehicles and not toys. 
• With one hurricane (and the third named storm) spinning in the Eastern Pacific and several systems having already been investigated in the Atlantic, the second article in Sunday's Herald-Tribune is extremely timely.   It details the devastating effects of storm surge, which causes more deaths than any other feature of a hurricane.
• The battle being fought between neighbors at the Americana Cove manufactured housing community in Pinellas County is the subject of the third article from the St. Petersburg Times.   We've spoken at our seminars on many occasions about the issues facing the residents at Americana and there are no easy answers in this situation.

We'll get back to discussing how Senate Bill 1196 will impact resident-owned communities in my next entry.    In the meantime, I hope you find these articles interesting and informative.

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The Florida legislature has provided managers and boards of condominium associations, cooperative associations and mandatory homeowners associations with some help in collecting delinquent payments from unit owners and association members.

Senate Bill 1196, which goes into effect on July 1, 2010, provides that if a unit or parcel is occupied by a tenant and the unit owner or parcel owner is delinquent in paying any monetary obligation due to the association, the association may demand that the tenant pay to the association "the future monetary obligations" related to the unit or parcel.  For some reason, condominium and cooperative associations are required to make a written demand on the tenant while the language applying to Chapter 720 homeowners associations does not seem to require a written demand.  I assume that "future monetary obligations" refers to the tenant's obligations to pay rent to the unit or parcel owner.   In all cases, the demand is continuing in nature and the tenant must pay the monetary obligations (again, I assume this is the amount to be otherwise paid by the tenant to the unit or parcel owner) until:

• The association releases the tenant from making any further payments to the association
• The tenant discontinues tenancy in the unit or parcel

Condominium and cooperative associations are required to mail written notice to the unit owner of the association's demand that the tenant make payments to the association but again no such requirement seems to be included in the provisions for mandatory homeowners associations.  

A tenant who acts in good faith in response to a written demand from an association and pays his or her rent to that association is immune from any claim from the unit or parcel owner.

In addition, the revised statutes now appears to allow ROCs to evict tenants for failure to pay monetary obligations pursuant to the residential landlord-tenant provisions of Florida Statutes. 

There is a good deal more involved in these amendments and I'll post further entries on them this summer.  

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Governor Crist signed Senate Bill 1196 into law last week and I'll be posting several entries about the amendments to Florida's statutes affecting condominiums, cooperatives, and mandatory homeowners' associations in the coming weeks. 

I'd like to first mention a provision in Senate Bill 1196 that corrects a "glitch" in the statutes governing cooperative associations.

SB 1196 amends Florida Statute Section 719.106(1)(d)6 to provide that, unless a cooperative association's bylaws provide otherwise, a board member appointed or elected to fill a vacancy on the board that occurs before the expiration of the term serves for the full remaining term of the seat being filled.   Although the Florida Administrative Code Section that expanded on F.S. 719.106(1)(d) specifically provides for a vacant seat being filled for the full remaining term, because the statute itself was silent on the issue, there was some uncertainty as to whether the vacancy was filled for the full term or only until the next annual meeting.   This amendment removes any potential inconsistency between condominium associations and cooperative associations on the issue of filling a vacant position on the board that occurs before the expiration of the term.

SB 1196 further amends the statutes governing retrofitting for fire sprinkler systems in both condominiums and cooperatives by prohibiting local authorities from requiring completion of fire sprinkler system retrofitting before the end of 2019.   This is a five year extension from the date provided for prior to this amendment.   The association membership still has the right to "opt out" of retrofitting.

SB 1196 also adds several categories of information that is not to be made available to members or parcel owners in mandatory homeowners associations.

In my next entry, I'll discuss some changes found in SB 1196 that are intended to help ROC boards and managers deal with our foreclosure crisis.

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The National Oceanic and Atmospheric Administration (NOAA) just issued its predictions for the upcoming hurricane season, which begins June 1.

If NOAA's forecast is correct, we'll have a very busy summer tracking storms in the Gulf and the Atlantic:

According to NOAA, there is a seventy per cent chance of the following:

• 14 to 23 named storms (either tropical storms with top winds of at least 39 miles per hour or hurricanes)
• 8 to 14 of those storms will reach hurricane status (with top winds of at least 74 miles per hour)
• Of those 8 to 14 hurricanes, 3 to 7 will become major hurricanes (with top winds of at least 111 miles per hour)

I've posted on hurricane preparedness before but this is certainly a good time for ROC managers and board members to review their existing hurricane preparedness plans and to remind their residents (snowbirds and full-timers alike) of a few important points:

• Residents should not wait until the last minute to evacuate their communities--especially those in need of special care or with pets
• Do not leave lawn chairs, tables, etc. outside when a storm is on the way.  Anything that can become a projectile should be brought inside or be otherwise safely secured.
• A mandatory evacuation order means just that: evacuate your community.  Unless your clubhouse is a Red Cross certified storm shelter, it should not in any event be used to "ride out" the storm.
• Make sure all contact information for residents is readily available
• Appoint one or two "full time"residents (not the manager) to serve as the "information centers" in the event that a storm hits the community.  All residents should be advised to contact these residents rather than the manager or other board members for updates on conditions at the community.   The manager and the other board members will have their hands full in dealing with the challenges facing any community in the aftermath of a storm.

We all hope that this hurricane season will be as quiet and uneventful as last year's but, as always, taking the proper steps to prepare for the worst is the best course of action for managers, board members and residents in our communities. 

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I'm posting two very different articles for the education and enjoyment of my blog readers:

• A horror story from a recent edition of the Fort Lauderdale Sun-Sentinel about a ROC board's disastrous decision to forego insurance coverage.
• A much lighter report from the May 16, 2010 edition of the St.Petersburg Times about the "Airstream Ranch" now featured along I-4 in Hillsborough County.

I hope you'll find these stories interesting and informative.  

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