Monday, January 23, 2012

Condo petitions for reform: sound strategy or futile gesture?

The Broward Coalition has been in the news recently regarding petitions that they are collecting in order to advance two ideas this Session: clarifying that associations are not to be considered the "previous owner" for joint and several liability purposes as it pertains to past due association assessments and supporting two bills that will hopefully speed up bank foreclosures.

However, is this a well-thought out strategy designed to truly involve rank and file association members in the legislative process or is it merely a futile gesture or worse, grandstanding?

Ironically, the Broward Coalition is touting the fact that it worked with Lisa Magill of Becker and Poliakoff to create the petitions the Coalition is presumably using to take on bankers, while at the same time it is her law firm and its lobbying organization, CALL, that drafted the Safe Harbor amendment to HB 319 that reiterates the banks' preferred position over other title holders following foreclosure by capping the amount banks have to pay in past-due assessments owed to associations. Here is a link to CALL’s position paper and the actual amendment they drafted in order to alleviate any misconception that some have as to who actually drafted that amendment:

The two petitions that the Coalition is distributing have nothing to do with repealing the CALL/Safe Harbor amendment discussed above. One petition is to add language in to 718.116 clarifying that associations should not be treated as the previous owner for joint and several liability purposes. If they remain current on Tallahassee happenings, the Coalition and its advisors should certainly have known that CAN already drafted and had included that very language into HB 319 way back in August.

CAN's language was intended to add late fees, interest, costs,and reasonable attorneys' fees to the unpaid assessments already owed by third party purchasers as well as to clarify that an association should not be treated as the previous owner with regard to joint and several liability for these amounts. The bill sponsor, Rep. George Moraitis, left the expansion of amounts owed but removed the language excluding associations from being treated as the "previous owner" due to his concerns that the merger doctrine would not allow the addition of this language.

The bill sponsor's concerns that there is a legal theory which prohibits including this language in HB 319 will certainly not be overcome by receipt of a petition no matter how many signatures it contains. He has now asked for input from the Florida Bar as to whether or not this language is advisable and whether or not it withstands a merger doctrine challenge.

The other petition concerns the Steube (HB 1149) and Passidomo (HB 213) bills which are designed to speed up bank foreclosures by giving courts greater leeway to sanction lenders and giving associations greater input into the court's management of the bank's foreclosure case. These bills have merit and are worthy of support. However, the Coalition's Petition on these bills is cumbersome for the average reader and most likely will be signed (or ignored) by folks who don't understand its contents. There is the additional and not insignificant hurdle that has not been discussed with folks being asked to sign these petitions that these bills don't currently have companions. Moreover, both house bills have four more committee stops including two policy subcommittees, a budget subcommittee and an overarching committee. Before whipping the "troops" up into a frenzy, wouldn't the sensible thing be to at least give folks an accurate picture of what they're up against?

Lastly, petitions are, in my opinion and the opinion of most legislative aides, the least persuasive way to effectuate change. Personal meetings with the legislators sponsoring and hearing these bills are the best. Individual phone calls and emails are runners-up. Bulk petitions simply don't carry the same weight. We might get lucky and the subject matter of both petitions might pass but it won't be because a petition was submitted. It will be due to all the hard work that has taken place over the last year and the ongoing commitment to educate our policy makers on these issues of importance to community associations.

Monday, January 16, 2012

What can be done to stop secondhand smoke from entering your condominium unit?

Recently a member of my Condo and HOA Law & Living group on LinkedIn asked the following question of our approximately 2,400 nationwide members.

"What is a condominium owner's rights when his or her unit is saturated in secondhand smoke from the unit above them and below them? Are there laws that address this issue and, if so, have they been enforced in Florida?"

This question kicked off some heated discussion (pardon the pun) and resulted in an extraordinarily large number of comments both from smokers and non-smokers alike. Some of the commentary ran a little afield of the original question and veered off into topics ranging from the science on secondhand smoke to civil liberties and everything in between.

However, for the benefit of Sun Sentinel blog readers, I will repost my response to the question here:

There is only one Florida case that I have found and it is a 2005 Broward County court case that is not published so it has minimal precedential value but it is certainly persuasive. I suspect most other cases have been settled so we have nothing to rely upon in terms of caselaw. The case I found is Robin Hanes Merrill v.Jim Bosser, Case No. 05-4239 COCE 53.

In that case, the court starts out saying that the case is "not a case about secondhand smoke, rather, as persuasively argued by the Plaintiff, it is about excessive secondhand smoke." In 2003, the Plaintiff and her family purchased a unit at the Palm Aire Condominium in Pompano Beach. The Defendant was living in a unit one floor up and one unit over from the Plaintiff. The Defendant was a smoker who smoked about a pack a day. Initially, the Plainiff had no problems with the Defendant's smoking but the Defendant later acquired a tenant who was also a smoker and that's when the problems began. The Plaintiff acknowledged in her complaint that her family is "hypersensitive" to smoke due to a history of respiratory allergies.

The Plaintiff installed air purifiers in her unit to no avail and the association installed a mechanical fan to draw air from the common shafts up through the roof. This also did not resolve the problem. The smoke got so bad that on several occasions the family slept elsewhere and one time the smoke set the Plaintiff''s smoke detector off.

The Plaintiff brought suit against the Defendant for damages based on the theories of trespass, common law nuisance and breach of contract. In Florida, the focus of the tort of trespass is the "disturbance of possession". As it pertains to smoke, secondary authority has summarized the status of the law as it relates to trespass as follows: "A trespass need not be inflicted directly on another's realty, but may be committed by discharging a foreign polluting matter at a point beyond the boundary of such realty."

The Broward County Court found that the excessive nature of the smoke in this case did constitute a trespass. The Court also found that the excessive secondhand smoke had created an actionable nuisance for the Plaintiff. Florida courts have allowed a nuisance to also proceed based on odors created by another party. The Broward County Court also cited the Court of Appeals of Nebraska which had held that to have the use and enjoyment of one's home interfered with by smoke, odor and similar attacks upon one's senses is a serious harm.

Lastly, the Broward County Court addressed whether the excessive secondhand smoke constituted a breach of covenant of quiet enjoyment. The Court acknowledged that in Florida there was no case on point but relied on a Massachusetts Housing Court Ruling in 50-58 Gainsborough Street Realty Trust v. Halle. The Halle Court ruled that while smoking is legal, secondhand smoke can be considered a breach of covenant of quiet enjoyment. The only weakness in the Plaintiff's case in Merrill v. Bosser is that she failed to provide competent evidence demonstrating the extent of her damages. The Court awarded her the sum of $1,000 plus costs in the amount of $275.00 to cover medical expenses, loss of use of the premises and remedial expenses.

It is important to note that this is a case where an owner sued an owner. It is not a case where an association sued an owner for violation of the covenants or for a nuisance. However, the arguments set forth in this case could, in my opinion, be used equally by a fellow owner or the association upon whom responsiblity to enforce the covenants rests.

Monday, January 9, 2012

Holiday decoration dispute continues to plague HOA in the New Year

2012 has brought more litigation to a Lake County retirement community that thought it had put its holiday-related troubles behind them.

The 2011 holidays brought a lawsuit filed by Rabbi Arthur Grae against the Legacy of Leesburg Homeowners Association seeking the right to display a large menorah outside the community's Social Hall. Fortunately, that suit was settled in a presumably amicable fashion by the plaintiff donating a 6 1/2-foot menorah which was installed inside, rather than outside, the Social Hall. The donated menorah was approximately the same size as the indoor Christmas tree and replaced a smaller menorah which had been set up on a table.

However, the terms of that settlement agreement were expressly made confidential and Rabbi Grae now stands accused by his HOA of violating the terms of that confidential settlement by discussing it with the media and in other venues. The HOA's lawsuit seeks punitive damages and injunctive relief barring Grae from further breaches. The homeowners association claims that its image has been "tarnished" and its property values impacted as a result of the publicity related to the agreement in the Orlando Sentinel, the Daily Commercial in Leesburg, the rabbi's newsletter and the American Bar Association Journal.

The HOA's Complaint asserts that Grae "discussed and opined" on the terms of the agreement; copies of the published articles as well as Grae's newsletter were attached as exhibits to the Complaint. Many associations embroiled in disputes with owners would rather the terms of any ultimate settlement remain confidential especially if the association feels it has had to concede ground to achieve the settlement. Conversely, owners who achieve a measure of victory are usually very anxious to share their battle stories and strategy with their neighbors.

I suppose this can all be attributed to basic human nature. However, this particular case really raises a few questions about how we can get tripped up even after we win a hard-fought battle. If the goal was to achieve parity between holiday symbols, that appears to have been achieved via the settlement agreement reached before years-end. If the goal was to make the Legacy of Leesburg HOA an example to discourage other communities from following suit in terms of holiday decorations, then a confidential settlement should not have been agreed to and the case should have played out in court.

The irony of all this is that the confidentiality agreement is now part of the public records so the HOA Board and Rabbi Grae are subject to the court of public opinion alike.