TC Palm Q&A Column, July 8, 2018

By July 8, 2018News, Questions & Answers

Editor’s note: Attorneys at Goede, Adamczyk, DeBoest & Cross, PLLC respond to questions about Florida community association law.  The firm represents community associations throughout Florida and focuses on condominium and homeowner association law, real estate law, litigation, estate planning and business law.

Q: A condominium a few miles away recently experienced some vandalism at the clubhouse.  Some kids broke some windows and drove their car over some landscaping and broke some furniture.  They were able to catch the kids through surveillance cameras. Our Board is considering security cameras in case it happens to us.  Can the Board do this?

-G.K., Stuart

A: Possibly. Florida arbitration decisions on this topic indicate that adding security cameras is a material alteration to the clubhouse.  Thus, unless your specific condominium documents provide otherwise, the cameras must first be approved by at least seventy five percent of the membership.  

Now, there are a few exceptions to this rule.  First, many condominium documents require less than the statutory 75% to approve a material alteration.  Second, many condominium documents only require membership approval when the cost of the alteration exceeds a certain threshold.  If, for example, the cameras cost $25,000 and the documents only require membership approval for material alterations costing more than $30,000, then the Board alone has the discretion to approve the cameras even though it is a material alteration.

Third, there are a series of arbitration cases indicating that the Board can approve security cameras when it is necessary to protect the common elements.  The cases are clear that it is not proper to avoid membership approval just because cameras would make it less likely that you would be the victim of vandalism or burglary.  Rather, you must have a demonstrated history in your area or community where the cameras would prevent further criminal activity. If the condominium referenced in your question where your immediate neighboring community, or if it were another sub association in your larger master association, it is more likely that could use that condominium as a basis for your cameras.  If the other condominium is 10 miles away and your clubhouse has never been vandalized, it is unlikely that you could use the security exception to avoid membership approval.

The recommendation is to compile a list of any potential security issues in your community and bring them to your attorney to review in conjunction with an analysis of your specific governing documents.

Q: Our landscaper is responsible to maintain the irrigation system. The grass surrounding the clubhouse has died and the cause was lack of water. The irrigation system was functioning, but the landscaper never tested the system and there was a lack of coverage. Is the landscaper responsible?

-T.R. Treasure Coast

A: The answer is very factually sensitive and depends on your contract. I have reviewed dozens of landscape maintenance agreements and the language varies greatly. Some agreements require the vendor to routinely test for coverage, and others simply provide that the vendor will operate the irrigation system and fix it on request.

If the contract specifically requires the landscape contractor to monitor the system and test for coverage, and if you can demonstrate that the grass would not have died but for the lack of coverage testing, that is a breach of contract.  When there is a breach of contract, you then need to determine whether the contract provides a specific procedure to either cure or mitigate damages.

You also need to consider the cost of damages versus the cost to enforce the contract.  For example, you need to determine whether an attorney would be necessary to pursue these damages and whether your contract specifically provides that a prevailing party in litigation recovers its attorneys’ fees and costs.  If the damage to the sod is $5,000 and the attorneys’ fees would be greater than $5,000, this fact needs to be part of the discussion and strategy.

So, to answer the question, the first step is to review your contract and determine the actual cause of the grass loss.

John C. Goede Esq. is co-founder and shareholder of the Law firm Goede, Adamczyk, DeBoest & Cross, PLLC. Ask questions about your issues for future columns send your inquiry to question@gadclaw.com. The information provided herein is for informational purposes only and should not be construed as legal advice.  The publication of this article does not create an attorney-client relationship between the reader and Goede, Adamczyk, DeBoest & Cross, PLLC or any of our attorneys.  Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have questions about any of the issues raised herein.  The hiring of an attorney is a decision that should not be based solely on advertisements or this column.