Condo & H.O.A. Law

Michael Bogen devotes his legal practice to representing hundreds of condominium and homeowner associations. Bogen, who is admitted to practice law in Florida, Washington, D.C., and Nevada, also is admitted before the United States District Court in the Southern and Middle Districts of Florida. He is assistant executive director of the Condo Council, which provides education to over 1,000 association members.

EMAIL: column@Condo Law.com

Q.

For years, we have been trying to control the ant problem in our unit. We have tried all different types of sprays and nothing seems to work. We have asked the board to do something and they tell us to call our own pest control. What can we do?

A.

First, I would look to see if the pest control responsibility is stated in your association’s governing documents, such as your declaration or bylaws. If it states it is the association’s responsibility, then I would send a letter to the association via certified mail return receipt requested asking for the association to remediate the issue or you will be forced to take legal action against the association. At this point, you would contact a community association attorney.

Second, if the pest control responsibility is not stated in the association’s governing documents, the pest control problem could be considered a “nuisance” that the association may be responsible for rectifying. If I was an owner, I would call inmy own pest control and have them determine the source of the problem. What commonly occurs is a snowbird who did not clean up and left food out in the unit, which attracts ants and other insects. If this is the case, then the snowbird owner could be held liable for remediating the ant problem. I would start with a certified letter to the association and see if the association helps by a deadline you give them (at least two weeks, unless an emergency). If not, then I would call my own pest control and have them determine the source of the problem. After the problem is fixed, you may attempt to be reimbursed either by the association or the snowbird owner, in my example, if it is determined to be their fault.

Q.

We are a 55-and-older building. A 25-year-old man wants tomove in with his father who is over the age of 55. How do we stop this from happening?

A.

The law in regards to 55-and-older communities states that as long as one 55-and-older person is residing in the unit, a person between the ages of 18 and 54 may reside in the unit as well. There also is something called the 80-20 rule, which means that at least 80 percent of the units in the association must be occupied by persons 55 and older and that up to 20 percent of the unitsmay be occupied by persons solely under the age of 55. Some associations have eliminated this 8020 rule by becoming a “100%” building via an amendment to the association’s governing documents. Therefore, in your case, a 25-year-old generally will be allowed to live in the unit so long as someonewho is at least 55 years old also lives in the unit.

Q.

The board sent a letter to me saying that Iwas not allowed to install

A.

hurricane shutters to protect my condo unit. May the board prevent the installation of my hurricane shutters? Florida law states that a board may not refuse to approve the installation or replacement of hurricane shutters, impact-resistant glass, code-compliant windows or doors, or other types of code-compliant hurricane protection by a unit owner so long as the such hurricane protection conforms to the board’s specifications for such hurricane protection.