What is a Nuisance Under Florida Condominium Law?

Posted By on October 21, 2014

Florida condo unit owners are guaranteed the right to enjoy their homes as they see fit under Florida law with one big (make that HUGE) limitation: they cannot use their property in such a way that it injures or impedes the rights of another owner.

Florida condo unit owners can decorate their homes as they see fit. Bright orange walls for a dedicated Florida football fan? No problem. Sleep on the floor because of a bad back? No worries. But do something that crosses the line and interferes with the rights of others in their use and enjoyment of the condo property, and you’ve got a problem. You may be challenged as causing a “nuisance” under Florida condo law. If so, then Florida law can force you to stop or to change your ways.

Florida Law of Nuisance

As judges describe it, the reason for nuisance law is based upon the doctrine of “sic utere tuo ut alienum non laedas,” which means “use your own as not to injure another’s property.” See, Rae v. Flynn.

In Florida law, every unit owner has the legal right to enforce the condominium documents (Bylaws, Condo Rules and Regulations) against all the other condo owners. Hopefully, the condo unit owner does so by first trying to resolve the matter with his neighbor face to face. If this is not successful, then the condo owner’s next step is to formally complain to the Condo Board about the problem he or she considers a nuisance.

The Condo Board will then review his complaint against the condo documents to determine if this situation is a nuisance that is a “matter of common interest” as defined within those documents. If the Condo Board does not see things his way, the unit owner is entitled to proceed against the aggravation directly in Florida courts via a lawsuit filed against the neighbor who is creating the nuisance.

Nuisances result in all sorts of situations. Condo fights have been brought into Florida courtrooms for things like the noise created by an upstairs neighbor walking on their newly installed terrazzo tiles and for the secondhand smoke coming from a neighboring unit.

Common Example of Condo Nuisance: Barking Dogs

A common example of a nuisance case involving unit owners is a condo owner with pet dogs. Dog owners whose beloved pets disturb other unit owners because they bark too much or because they give off offensive odors (think dog poop left in the common areas, for instance) can face charges that they are creating a nuisance.

Florida courts have held that dogs who bark too much can form the basis of injunctive relief, where the nuisance barking must be stopped (as, for example, having the unit owner keep his dogs inside his condo.) The burden of proof here is to show that the plaintiffs are “… substantially and unreasonably disturbed notwithstanding proof that others living in the vicinity are not annoyed.”

Proving Nuisance Isn’t Easy

Given that condo nuisance is defined within the individual condominium’s controlling documents, and that each nuisance is unique and there is no established legal standard for defining “nuisance,” proving an individual nuisance case can be challenging. Even the unit owner can sometimes be argued to be a “nuisance.” Consider the case of Florida condo owner Nancy Wear.

Florida condo unit owner Wear won over $200,000 in a condo nuisance jury verdict over her demand that a trash can be placed by the condo mailboxes, so she could immediately toss all the junk mail she received there, rather than having to cart it to her condo to throw it away. Her request was denied, so Mrs. Wear began dumping her junk mail on the floor there by the mail boxes in protest.

This got lots of attention, of course. Result? The Condo Board considered Mrs. Wear’s actions to be a “nuisance” and took steps to evict her from her condo.

It took Nancy Wear eight years to win her fight in a vexing lawsuit that went up to the Florida appellate courts more than once before her ultimate victory against the Alca Condominium Association.

Mrs. Wear used the jury award to pay off that condo mortgage. (Important note: the fact that Nancy Wear was an accomplished attorney obviously served her well.) While we’re not sure, we’re betting that Nancy Wear got that trash can.

Conclusion

There is no set formula for deciding when something is a “nuisance” for a condo owner. Each case is unique and will be decided by the judge and jury on a case by case basis. It’s important to evaluate your case with a Florida condo lawyer for its strengths and weaknesses, recognizing that whether a nuisance exists or not is a question of degree, and different people (i.e. a judge or jury) may see the issue differently than you do.

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Do you have questions or comments? Then please feel free to Chat with Larry in the comments below, at info@hallandalelaw.com, or (954) 458-8655. If you have a specific or personal situation, please call or email Larry because he can’t answer specific fact questions in general comments.

Deficiency Judgments and Your Credit: Did the Debt Owner Furnish Accurate Information to The Credit Reporting Agencies?

Posted By on October 14, 2014

Update to Deficiency Judgment Collection Efforts

We have asked our clients to obtain a copy of their credit report to determine if the amount reported as due and owing is correct. We are doing so because we have noticed in some instances the amount being sought in the deficiency lawsuit differs from the amount reported to the credit reporting agencies (CRAs). In other instances, we have noticed that the original judgment creditor (the party who foreclosed) reported an amount different from the amount being reported by debt buyers/collectors, like Dyck O’Neal and ClearSpring Loan Services, formerly known as Vantium, to the CRAs.

One question that arises from this discrepancy, is whether or not the Fair Credit Reporting Act applies and if it is being violated. Did the debt collector adequately investigate the amount due before furnishing information to the credit reporting agencies? Another question, is whether Fannie Mae, or other debt sellers, ever told Dyck O’Neal, or any other debt buyer, that some of the debt may be legally noncollectable? The plot thickens and the foreclosure mess continues to morph into another scary object.

You may also be interested in:

Did You Get A Letter From A Debt Collector For A Florida Mortgage Deficiency Related to a Foreclosure Or Short Sale?

Dyck-O’Neal Increases Florida Deficiency Judgment Collection Efforts?: 19 Articles About Florida Deficiency Judgments

Is a Dyck O’Neal Lawsuit Valid if it is Served After July 1, 2014?

 

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Do you have questions or comments? Then please feel free to Chat with Larry in the comments below, at info@hallandalelaw.com, or (954) 458-8655. If you have a specific or personal situation, please call or email Larry because he can’t answer specific fact questions in general comments.

How Do You Draw the Ownership Line Between Florida Condominium Units and Common Elements?

Posted By on October 7, 2014


Here in South Florida, condominium ownership is extremely popular. Our local skyline is filled with condo towers, particularly on or near the oceanfront where condominium projects can offer residents beach access and beautiful waterfront views. Accordingly, there is a lot of law on the books in Florida on how condominium ownership works, and how controversies are to be resolved between individual condo owners and the condominium boards that oversee the everyday operations of the community.

What Does the Condominium Unit Owner Own?

For each buyer of a Florida condo, it’s important to understand where their individual property rights in their home begin and end, and where their ownership changes into that of a shared property right in the condominium’s “common areas” or “common elements.” The condo owner has the same rights as an owner of a single family dwelling, or suburban home, regarding decorating and repairing and maintaining his specific condo unit. Inside that unit, the owner is king.

However, the condo owner’s kingdom has jurisdictional boundaries: step across the ownership line, and the condo unit owner has a shared interest in the rest of the condominium real estate. The stairway inside the condo? The condo unit owner’s sole property interest. The stairway next to the tennis courts? The condo unit owner’s shared ownership with all his other condo unit neighbors.

How Do Condo Owners Determine Where The Property Line Is Drawn?

As a general rule, an individual condo unit is the part of the condominium where each condo owner resides or the “interior shell” (that is, the part of the condominium that is deeded to the owner or the part of condominium that the owner holds legal title to), and the common areas are everything else that is related to the condominium property (common areas are usually maintained by the association unless the declaration says otherwise). However, to be exact, each condo unit owner needs to look to Florida law and the governing documents.

1. Florida Condominium Act

First, the determination of legal rights for Florida condos is delineated in the Florida Condominium Act. Here, for example, if there is a debate between the unit owner and the condo board regarding who is responsible for a repair expense, Florida Statute 718.113 of the Florida Condominium Act will provide the answer.

2. Florida Declaration of Condominium and Bylaws of Association

Second, the actual property lines and real estate rights of the condo owner will be defined in the particular real estate documents that are specific to his condo. The definition of the condo “unit” and the “common areas” of each Florida condominium are defined in detail within the contractual documents creating the condominium itself, I.e., its Bylaws and Declaration of Condominium. These are documents which are provided to the condo owner at the closing table when he buys the unit.

When the real estate development legally becomes a condominium, either as a new project or as a transition of an existing multi-family property into a condominium, a “Declaration of Condominium” is filed in the county real property records. This is of “…paramount importance in defining the rights and obligations of unit owners.” Hidden Harbour Estates, Inc. v. Basso.

The Bylaws of a Florida Condominium involve the documents that create the organization that will oversee the operations of the condominium and create the condominium association. Each Florida condominium is operated and managed by its Condo Board.

3. Deed Restrictions

Third, there are real estate records that may also impact the property rights of the condo unit owner. Deeds to the real estate upon which the condominium sets may have restrictive covenants (deed restrictions) that impact where the line is drawn between each owner and the condominium ownership as a whole.

Why is This Important to the Condo Unit Owner?

In Florida, the Florida condo owner is free to enjoy his condominium as he wishes. He can paint all the interior walls black if he chooses, for example. However, the Florida condo owner shares the ownership of everything outside his unit with his fellow condo owners — and this can mean that the condo owner may not be able to do some things he would like to do – like paint the exterior of his condo entrance black – and he may have to do some things he’d prefer not to do – like pay his share of a special assessment in order to build a hot tub next to the swimming pool.

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Do you have questions or comments? Then please feel free to Chat with Larry in the comments below, at info@hallandalelaw.com, or (954) 458-8655. If you have a specific or personal situation, please call or email Larry because he can’t answer specific fact questions in general comments.

Major Repairs to Your Florida Condo: Who Pays?

Posted By on September 30, 2014

As we all know, here in Florida, condominiums are a very popular form of residential real estate ownership. Floridians as well as investors, retirees, and part-time residents (”Snowbirds”) find lots of advantages to buying a condo in our state. There are lots of condos to choose from, especially in South Florida. Condo units are available in high, skyline towers as well as in lower, waterfront complexes close to the oceanfront.

However, just like any other piece of residential real estate, Florida condos need to be repaired. Sometimes the repairs are minor — changing out a faucet, fixing a running toilet — and it’s clear that the unit owner is responsible for getting the work completed and paying for those repairs. In other situations, however, the line between the condo unit owner’s responsibility and the duty of the overseeing condominium association is not clear. Many major condo repairs fall into this gray area.

1. Condominium Owners and the Condo Association

When repairs are needed to a Florida condominium, there are two potential parties responsible for paying for the work: the owner of the individual condo unit or the condominium association. In deciding who pays the bill between the owner and the association, Florida law controls. See, Florida Statute 718.113 of the Florida Condominium Act.

According to that statute, the individual owner has sole ownership of his home or “unit,” and has joint ownership of the common areas, which is all of the property in and surrounding the condominium that aren’t individual homes or “units.” Where the ownership line exists between the owner’s unit and his shared ownership in the common areas is found in the real estate documents creating the condominium itself.

These documents include the condominium creation documents filed in the public record like the Bylaws and the Declaration along with limitations found in some real estate records which include restrictive covenants (i.e. restrictions in deeds). (Each owner usually receives a copy of all these documents when he or she contracts to purchase their condo unit.)

As stated above, condominium common areas are collectively owned, and their boundaries are identified in the condo documents. Usually, condo common areas involve things like the pool and parking areas, sidewalks; however, they also include areas within a condo unit, including the drywall on the exterior wall of each unit and the cement flooring of each unit.

While the individual condominium documents may specify things differently, as a general rule here in Florida, the Condo Association (all the joint owners) pay for maintaining and repairing the common areas and the unit owners pay for their own unit’s maintenance and repair. If the joint owners have assigned a portion of the common areas for one unit owner’s sole and private use, then that owner may be held responsible for this section’s maintenance and repair, as well.

2. Do you need permission to make repairs to your unit?

What about when repairs are made by the unit owner which are found unacceptable by the condo association? For instance, what happens if the unit owner repairs a rotting wood balcony and the association finds the material used on the new balcony is unacceptable? Who pays to repair/replace the vetoed balcony material?

Again, this will depend upon the language within the specific documents controlling the condominium. The specific provisions in the condo documents regarding alterations and repairs to unit balconies will need to be examined. Another factor to be examined will be the Florida Condominium Act.

However, as a general rule, the unit owner normally pays for the replacement of the balcony material in the above scenario if the owner chose the material, without approval, that did not meet with condominium standards.

3. Material Alterations

Sometimes, big changes are required (pursuant to a 40 year inspection finding) or needed in a condo community. In this regard, Florida Statute 718.113(2)(a), provides that 75% of the entire membership must approve a “material alteration or substantial addition” to the common elements, unless the declaration provides for an alternative approval method.

Big changes mean the majority of the unit owners must agree, because the unit owners will all be responsible for the expenses involved in these changes or repairs. Add a pool or tennis court? Extend the parking lot? These are “material alterations” or “substantial additions” to the condominium and their cost must be shared.

What is a “material alteration” under Florida law?  A change to the condominium property will be considered material or substantial if it “palpably or perceptively varies or changes the form, shape, elements or specifications” of the common elements “in such a manner as to appreciably effect or influence its function, use or appearance.” Sterling Village Condominium, Inc. v. Breitenbach, 251 So.2d 685 (Fla. 4th DCA 1971).

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Do you have questions or comments? Then please feel free to Chat with Larry in the comments below, at info@hallandalelaw.com, or (954) 458-8655. If you have a specific or personal situation, please call or email Larry because he can’t answer specific fact questions in general comments.

Real Life Examples of Florida Real Estate Agents Doing Bad Things

Posted By on September 23, 2014

Florida buyers and sellers are victims of the wrongful acts of real estate agents every day. Don’t be a victim; educate yourself.

 

 

The real estate industry works hard to promote its own as professionals worthy of the public trust as people buy and sell their homes, condos, and other real property. Most real estate brokers and real estate agents do act with professionalism; however, as with any profession, there are a lot of bad acts done by real estate professionals all the time here in Florida.

It’s important not to assume that the real estate agent you are working with during buying or selling your home or condo is immune to doing something wrong. Consider the following examples of wrongful acts done by real estate agents and real estate brokers for which they were disciplined by their licensing board.

Examples of Wrongdoing by Florida Real Estate Agents

These examples appear in the public listing from the 2012 Disciplinary Proceedings Before the Florida Real Estate Commission (FREC). The following are only a selection of the complete 23 page listing of serious wrongs done in a single year by people working in the Florida real estate industry:

1. Real estate agent took but did not deliver a security deposit; license was revoked.

2. Real estate agent lost their license after they failed to report to the FREC that they had entered a guilty plea for third degree felony grand theft; license was suspended.

3. License was suspended for six months after real estate agent failed to notify the FREC that he had pled guilty in a criminal matter to a felony charge that involved a crime of moral turpitude or fraudulent or dishonest dealing.

4. Real estate agent failed to deliver escrow funds pursuant to a property management agreement; the FREC banned this real estate professional from working in property management in the State of Florida forever.

5. Unlicensed real estate agent worked as a licensed real estate associate, misled the seller that the buyer had placed money into escrow; her lapsed license was revoked.

6. Unlicensed real estate broker worked with property management and leased property to the detriment of landlord and tenant; lapsed license was revoked.

7. Licensed real estate agent operated as a broker, collected a commission without notification or consent of her registered broker. License was revoked.

8. Licensed real estate agent failed to deliver rents paid by tenants. License was revoked.

9. Unlicensed broker collected commissions on real estate transactions. License was revoked.

10. Real estate broker, after demand of the person entitled to such accounting and delivery, failed to deliver to them money, check, and/or draft in violation of Florida Statute 475.25(1)(d)1. License revoked.

11. Real estate broker intermingled escrow funds with funds in the brokerage’s management account. License revoked.

12. Real estate broker failed to account for security deposit held in escrow; failed to properly submit the dispute to the FREC; failed to produce requested documentation of the property transaction and proof that the security deposit still being held in escrow. License revoked.

13. Real estate agent filed documentation with false or unauthorized information into public real estate records; as well as failed to reveal to the buyer the identity of a corporation as owner of subject property. License revoked.

14. Real estate agent filed a false lien on a residence in an attempt to coerce payment of funds for which she was not entitled.

15. Unlicensed real estate broker misrepresented herself as a broker and held out her brokerage as a legal real estate business entity under Florida law.

Have You Been Hurt in a Florida Real Estate Deal?

If you believe that you or a loved one has been the victim of a real estate professional in your real estate transaction, then you may need to visit with a Florida real estate lawyer to determine what your rights and remedies may be. This is true regardless of whether you are a buyer or seller, landlord or tenant. Complaints can be filed with the licensing board, of course, and other avenues of justice can also be explored, too.

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Do you have questions or comments? Then please feel free to Chat with Larry in the comments below, at info@hallandalelaw.com, or (954) 458-8655. If you have a specific or personal situation, please call or email Larry because he can’t answer specific fact questions in general comments.

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