Q: I have next to me a vacant lot with a half dead Ficus tree. I am told that there is absolutely nothing that I can do to force the owner to remove or at least properly trim. I am afraid that if there is another Irma this tree will come down and do extensive damage to my house. Do I have any rights? – B.J., East Naples
A: Yes. As has been discussed recently in prior columns you can legally trim and portion of the tree that is encroaching on your property. If you do this make very sure where the property line is an only trim that portion that is encroaching into your property. If the no portion of the tree is encroaching, then I recommend you contact the property owner in writing and explain that due to the deteriorated state of the tree it is creating a risk that it will fall and cause damage to your property. This will help you establish a claim of negligence if the property owner fails to address the problem and damage does occur. Finally, you should call code enforcement and report the problem.
Q: I heard there is a new law that prohibits rules against vegetable gardens being planted on someone’s front lawn. Is that correct? – W.G., Naples
A: Yes. Statute 604.71 Florida Statutes became law on July 1, 2019. It prohibits local governments from regulating vegetable and fruit gardens on residential properties. As used in the Statute the term “vegetable garden” means a plot of ground where herbs, fruits, flowers, or vegetables are cultivated for human consumption. This does not prohibit community associations from prohibiting vegetable gardens because community associations are not deemed to be a county, municipality or political subdivision of the State. However, community associations will need to amend their governing documents to specifically prohibit vegetable gardens in order to prevent them in the community, unless the governing documents already contain applicable restrictions.
Q: I recently had a water leak into my home and the dry out company wanted me to sign a document assigning my insurance benefits to it. I declined but can you explain what an assignment of benefits agreement is? – P.D., Marco Island
A: When a person assigns property insurance benefits to a company, they are allowing the company to “step into the shoes” of the policy holder/homeowner. This allows the company to negotiate the amount of the insurance claim and even sue the insurance company. Typically, the assignment of benefits contract allows the company to retain all the insurance proceeds as payment for its services. This type of agreement over the years has created a cottage industry for lawyers and contractors to sue insurance companies. However, after several attempts by the legislature to reign in this problem a law was passed as of July 1, 2019.
Florida Statute 627.7152 and 627.7152 now requires an assignment of benefits contract to provide that it may be cancelled by the assignor within 14 days of execution; at least 30 days after date work is to commence pursuant to the agreement if work has not been substantially performed by assignee/contractor; or at least 30 days after execution of agreement if the agreement contains no start date and substantial work has not been performed. It also requires pre-suit negotiation between assignee/contractor and insurer and provides for prevailing party attorney fees for both parties in any litigation. The assignee/contractor must also keep and provide detail records supporting cost of work/claim. Requires insurer to inspect property after demand is made or waive its right to attorney fees. Allows insurer to provide a policy that does not allow assignment of benefits if the insurer also offers a policy that does allows assignment of benefits. The restricted policy must provide same the coverage at a lower cost than the unrestricted policy. It is expected that the use of assignment of benefits contracts will become much less common.
Q: The Board of Directors of wants to paint our building a different color. They know changing the color is a material alteration that requires a vote of the owners. The Board has taken a “poll” of the owners to determine which color is most popular and one of the colors is the overwhelming favorite. The Board wants to go ahead and start painting the building now, and then take the official vote in the Fall when most owners are back in residence. Is this proper? – A.B., Naples
A: First, you are correct that changing the color of the building is a material alteration that requires approval of the owners. The Condominium Act provides that material alteration must be approved by seventy five percent of the total voting interests unless a lower number is provided for in the Declaration. So, you need to check your Declaration to determine if it provides for a lower or different approval threshold. Further, Section 718.113(2)(a) of the Condominium Act was amended in 2018 to clarify that any material alteration or substantial addition to the common elements that requires owner approval must be approved before the work is commenced. So, the Board cannot commence the project before obtaining sufficient formal approval from the owners. The owner “poll” is not proper approval. The approval must occur at a properly noticed membership meeting with the use of limited proxies.
Q: We have trouble getting the owners to vote on matters that require their approval. I have heard that lack of vote is considered a no vote. Can you explain what that means? Also, can we amend our governing documents to provide that a lack an actual yes or no vote from an owner can be counted as a yes vote? – G.B., Bonita Springs
A: The idea that the lack of a vote is considered a No vote is a common saying but really has no meaning. A lack of vote does not get tallied in the No vote category. In fact, a lack of a vote does not get tallied at all. I think the saying really means that when X percentage of affirmative Yes votes are required and someone does not vote, that failure to vote reduces the available votes cast in the affirmative. So, while a lack of vote is not tallied as a No vote it has the same affect, because it cannot be tallied in the Yes column. As to your second question in my opinion the answer is no. If an action requires the affirmative approval of a certain number of owners, you cannot count the lack of a vote as an affirmative vote.
Q: What happens if a Director on the Board is delinquent in the payment of assessments owed to the Association? Can they still serve on the Board? – E.L., Marco Island
A: Both the Condominium Act and the Homeowners Association Act provide that if a Director becomes more than 90 days delinquent in the payment of any monetary amount owed to the Association he or she is automatically removed from the Board. Thereafter, the remaining Board members can vote to fill the vacancy and there is no obligation to reappoint the removed Director even if he or she pays the money owed. Not that the law applies to any “monetary amount” so it is not just applicable to past due assessments.
Richard D. DeBoest, II, Esq. is co-founder and shareholder of the Law firm Goede, DeBoest & Cross, PLLC. T o 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, 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.
