Sunday, April 29, 2012

"Fowl" play in a Cape Canaveral Condominium: wildlife inside shared ownership communities

A recent story out of Cape Canaveral involves the death of 10 peacocks in a three-week span inside the gated Ocean Woods community. Some residents in the community fear that the birds have been intentionally killed as a result of the noise, droppings and other activity which some residents may see as a nuisance. This story raises several interesting questions.

 Whose decision should it be whether a community actually imports animals as opposed to those who find their way into the community on their own? Many communities now stock their lakes with fish and some even go to the trouble of purchasing ducks, swans and peacocks to add "color and character" to the neighborhood.

For the full story, click here: http://www.wltx.com/news/watercooler/article/185551/363/Feathery-Whodunnit-Foul-Play-Suspected-in-Peacock-Deaths

This wouldn't be the first time that wildlife inside a community posed a problem for some residents and the animals themselves. A community I represented some years ago had swans in their lake. The board had specifically purchased the swans and had posted signage that the residents were not to feed or in any way interfere with the animals. Naturally, one resident took his five-year old son down to the water with some bread in an attempt to feed the swans during mating season. Swans are very territorial during mating season and the child and father were both chased by an irate male swan. Of course, the father then threatened a lawsuit despite the fact that he had ignored the prominent signage posted by the community lake.

In yet another community, a tenant was fined for leaving out food for ducks each night that not only attracted ducks but possums, rats and other critters. The tenant was warned to stop that practice but she advised that the ducks would go hungry but for her nocturnal feeding pattern.

Some folks simply appreciate the beauty of a community's wildlife from afar, others want to hunt it and some want to feed it.

Lastly, in a case out of Tennessee, sometimes it's not the animals out in your community's lakes and parks but the ones in your neighbor's next door unit. When police raided the South Nashville condominium of a convicted felon, they discovered not one but three alligators inside the home!

For the full story, click here: http://www.wrcbtv.com/story/17752569/police-find-alligators-in-condo-during-drug-bust

Many association documents do contain a provision prohibiting exotic animals. As for my own West Broward HOA, we have had an otter playing and entertaining in our canals for the last 2 years. We believe he is an escapee from Flamingo Gardens!

What is the most exotic animal you've ever found taking up residence in your community?

Monday, April 23, 2012

The practical realities of suspending use rights in FL condominiums, cooperatives and HOAs

For two years now, condominium, cooperative and homeowners' associations have been able to suspend the common area use rights of delinquent owners (and those owners' occupants, licensees and invitees) after clamoring for such authority in the wake of the foreclosure crisis.

The general consensus was that people who do not pay to maintain the common areas, should not be able to continue enjoying them. The morale of owners who continued to pay their assessments each month or quarter suffered when they saw their non-paying neighbors continuing to use the community facilities. In addition to preserving morale, most folks also see the right to suspend use rights (especially in communities with a plethora of facilities and amenities) as a useful tool to encourage delinquent owners to pay up.

This statutory tool provides as follows:

If a unit owner is delinquent for more than 90 days in paying a monetary obligation due to the association, the association may suspend the right of a unit owner or a unit’s occupant, licensee, or invitee to use common elements, common facilities, or any other association property until the monetary obligation is paid. This subsection does not apply to limited common elements intended to be used only by that unit, common elements that must be used to access the unit, utility services provided to the unit, parking spaces, or elevators.

Two wrinkles have arisen in the years since this language was created. Some associations have gotten overly creative with regard to the type of use that can be suspended. I have heard from frustrated boards that have disallowed deliveries to delinquent owners, thereby requiring these owners to come to the front gate or go to the post office to collect their packages. Some have denied delinquent owners the right to have visitors and convinced cable providers to shut off service to delinquent units while others have required delinquent owners to use the service elevator rather than the resident elevator and, in the most extreme example, one board president announced that he had authorized the removal of the doors on the mailboxes of delinquent owners in his HOA.

If you read the statutory language above carefully, some of these practices are not contemplated therein, some are plainly prohibited and the last example above constitutes a federal crime.

The second issue that has cropped up is that having a statutory right and being able to exercise that right are two entirely different things. Many boards would like to suspend owners from using the Clubhouse or the community pool but are finding that they cannot do so practically. Without a fence and a locking mechanism, it is just not easy to keep people out. Boards who have contacted the police and sought help in keeping the suspended owners or suspended owners' tenants/guests out of the common areas have been told that it is a "civil matter" and the police will not get involved in enforcing the board's rights.

This is where the usual naysayers will jump in and say "We told you so! Those changes were useless." To the contrary, many communities have reported that the ability to suspend use rights has been an extremely effective tool both in terms of deterring potential new deliquencies as well as getting some of the current delinquencies cured. Those communities that have common areas such as pools, clubhouses, tennis courts, etc. and have the ability to practically keep the suspended folks out have been the lucky beneficiaries of this statutory change. Unfortunately, for other communities with few or no amenities and/or without the means to practically enforce suspensions, this change will not be nearly as effective a tool as the ability to demand rent from tenants in delinquent units.

Monday, April 9, 2012

Must condominium and cooperative owners become their "brother's keeper" when it comes to recycling?

The City of Miami Beach has spent the last couple of years considering an ordinance that would force the residents of multifamily properties (which includes condominiums, cooperatives and apartment buildings) and its commercial establishments to have in place and participate in a recycling program or face fines for violations. The ultimate goal of the ordinance is to ensure that everyone in the City is recycling and helping to "go green". While this ordinance may have the best of intentions, the ordinance being considered by Miami Beach (and perhaps other municipalities in the future) may not be the best way to achieve those intentions.

Let’s take a quick look at the requirements in this proposed ordinance for both multifamily properties and commercial establishments. Each must have a City approved recycling program in place and use licensed recycling contractors that have been approved by the city and state. There will be a period of time prior to enforcement where the City will help to educate residents and business owners of what is to be recycled and how it is to be done. The City has budgeted money for the initiation of an education program. Once the enforcement period starts, the first violation for not having a program in place is $350 and goes up from there for each subsequent violation. If, after the first time, someone does not recycle, there is a violation which will be $100. The fines will continue for each new and continuing violation.

Here is the sticking point. The fine is not paid by the individual responsible for the violation but by the property owner or the association. This means that those living in a condominium or cooperative may have to become their brother’s keeper as far as recycling goes or be financially responsible for the violators living in their midst.

Another Florida city took a different path to achieve the same "go green" goal. In looking at ways to increase recycling rates, the City of Tampa conducted a study on focus areas within the City and determined where the barriers to recycling lay for both multifamily properties and commercial establishments.

The City of Tampa then looked at ways to help alleviate those barriers and to educate their citizens as to the benefits of recycling. The study determined that the use of incentives, such as savings on residents' utility bills, City recognition, and on-going education raised recycling rates. With the commercial establishments, the study found that a large majority of the businesses didn’t know about the recycling program but were more than willing to participate once they were educated on the program.

Both the City of Miami Beach and the City of Tampa recognize the importance of recycling and want to encourage their residents to participate in reducing our landfills which is certainly a laudable goal, however one municipality is approaching the problem with a stick while the other used a carrot. The Tampa ordinanace is already in effect. The Miami Beach ordinance has not yet passed.

If you'd like to take a look at the Miami Beach ordinance on recycling, go to http://www.miamibeachfl.gov/cityclerk/scroll.aspx?id=66724. This will take you to a page where you will need to select the second Bookmarked Agenda and once the PDF comes up it is the item starting on page 354. That will give background on the original proposed ordinance and what is now being proposed.

Wednesday, April 4, 2012

Media right, media wrong: Trayvon Martin, HOAs and the Rush to Judgment

In the news media’s rush to cover a story like the tragic shooting death in late-February of Trayvon Martin at The Retreat at Twin Lakes homeowners association in Sanford, FL, reporters and editors sometimes get it right and they sometimes get it wrong.

It’s understandable, I know, but irksome nonetheless. It is the unusual, the “out of the ordinary” that is by its very definition what makes news. The old saw that “Man bites dog” makes a headline, when the more usual occurrence of “Dog bites man” does not, holds true precisely because the unusual catches our attention. Across the country, day-in and day-out for years on end, countless thousands of volunteers have patrolled homeowner associations peaceably, unarmed and with no shooting incidents leading to a tragedy that rocks the community and makes the nightly news. Of course, these never get reported because the commonplace is not deemed “newsworthy.”

In the rush to cover a story like the Trayvon Martin shooting, newspapers in particular seem to have a difficult time in separating out what is really going on from what is a distraction, as reporters and editors attempt to cover the daily news on tight deadlines and with painfully reduced newsroom staff, owing to the chronic layoffs in the newspaper industry in recent years. The result? Things can often get jumbled and comments misconstrued as the papers go to press. For example, a recent Orlando Sentinel story, in which my comments about potential liability for HOAs like the Retreat at Twin Lakes were jumbled with an apparent implication introduced by the reporter that the HOA’s management company might itself be liable should any civil lawsuit be filed by the Martin family.

In fact, I’ve seen no evidence to suggest that might be the case. Yet the combination of a reporter in search of a "fresh angle" on the news, with the juxtaposition of quotes and sources in the story in the writing and editing process, can quickly take a newspaper piece in such a direction, providing evidence of some of the less fortunate reporting that we’re seeing around this case. Another example is the rush to judgment in some news reports that somehow these kinds of tragedies are just waiting to happen in any HOA that has volunteer activities on their premises, a supposition aided and abetted by sources who are distinctly anti-association and are always willing to cast aspersions on HOAs, whatever the issue at hand.

Fortunately, the immediacy of radio reporting and its ability to get across verbatim what a news source does or does not say, without the filter of a print journalists’ hastily jotted notes and sometimes sketchy recollection, means you can go on the record clearly over the air.

For example, in speaking on the radio about the Trayvon Martin case, I’ve been able to more accurately get my points across, telling American Public Radio’s Marketplace Morning Report this week that if there were to be a civil suit in the Trayvon Martin case “chances are that the plaintiffs will add the association at some point to an action. That doesn't mean, however, that the association will not ultimately be dismissed from that action and/or not found liable.” And, likewise, telling NPR’s “All Things Considered" program that I have been told that The Retreat at Twin Lakes Association in Sanford “did reach out to the local sheriff's office to set up that neighborhood watch and, if that's the case, that's going to go a long way towards creating a safety net for that association.”

Radio has also allowed me to get across my firm conviction that volunteers and volunteerism is at the heart of healthy and properly run homeowner associations across the nation, telling NPR that while the degree to which the association was involved in setting up the neighborhood watch group could determine its potential liability, “this is not to say that associations should not use volunteers in the community. It does mean that communities who are considering using volunteers should discuss these issues ahead of time.”

It would truly be a shame if the increased public awareness of the risk involved in the use of volunteers in HOAs, an awareness rightfully heightened by the news media shining its light on the issues involved, would only serve to discourage the use of volunteers in our communities. As I told NPR reporter Greg Allen, the use of volunteers helps pull a community together which is “a great thing. An association shouldn't shy away from it. They should just take the proper steps to make sure that they've got the right volunteers performing the right activity, they've done due diligence and they have insurance to cover it.”

Those interested can find a transcript and audio clip of my Marketplace Morning Report interview with Senior Reporter Stacey Vanek Smith online at the Marketplace website, here. To listen to the audio clip, just click on the radio player start button and fast forward into the news report to 04:46, where the interview begins.