Serving on a condo board has its challenges—mostly of a relatively mundane, everyday sort, like how to pay for new carpet in the clubhouse, or what kind of flowers to put in the new beds out front. Occasionally however, a much more sensitive issue comes along, involving potentially volatile legal or security situations, like residents with restraining orders or serious criminal histories. How such issues are handled is of crucial importance, and can impact not just a community's administration, but its morale, cohesion, and ultimate value.
Restraining Orders & Other Security Issues
Experts agree that if a board member or manager is advised by a resident that a crime is going to be or has been committed, he or she should advise the resident to call the police immediately, and take any further direction from law enforcement authorities. Generally speaking, there is legal principle that one party is not liable for the criminal actions of another (absent collusion, agency or the like). However, the condominium documents may also define the obligations of the board to a certain extent.
“An association screens all potential sale/lease applicants and performs background checks on all prospective residents,” says Marcy Kravit, a property manager with Atlantic | Pacific Management in Boca Raton. “If a restraining order has been filed by a resident, it is the responsibility of that resident to provide documentation to management. Management will alert the front desk to prohibit access to the individual against whom the restraining order has been filed. We are responsible for the safety and well-being of all residents, and are here to protect those who fear for their own safety. Florida has four separate categories for restraining orders—domestic, repeat, dating and sexual—and none of them are taken lightly.”
“It’s a fact of life the larger your building, the larger your city, the more you’ll have to deal with things like acrimonious divorces, restraining orders and felony convictions,” says Roberto C. Blanch, a shareholder attorney with the law firm of Siegfried Rivera Lerner De La Torre & Sobel, P.A., in Coral Gables. “It happens often when we represent buildings where one or the other spouse or partner comes to the building and serves a restraining order and expects the association to take some action to enforce the order. But not all of these orders apply to the association—so the question becomes what obligation does the association have to enforce the restraining order? It is usually my opinion that unless it names the association, my recommendation is not to do anything.”
Jeffrey Ulm, CMCA, AMS, PCAM, and CEO/president of Association Services of Florida, an Associa Company based in Miramar agrees. “The association is generally not notified formally of any type of domestic or felony issue, since the association is generally not named in any of the suits when filed with the court,” he says. “Aside from discussing the issue directly with those people affected, the only real way an association may become aware of legal issues is by checking the court records once they're notified that a domestic issue is pending. Still, that means the association is delving into an area it really has no business being in, unless the association’s documents give it that authority.”
Blanch adds that restraining orders can get complicated in co-ops and condos where unit owners live side-by-side. “Typically you’ll find a restraining order that says person A cannot be within 500 feet of person B. And person A might have a friend in the building where person B lives. So person A might want to come to visit their friend in the building where person B lives, so by virtue if they are visiting their friend, they’ll be violating that order,” says Blanch. “So the association or manager typically calls us and says the victim of the restraining order is seeking to prevent person A from coming into the building. It’s very sticky. Our security guards are not going to prevent an owner’s authorized guest from coming into the building because it may breach an order that he or she has entered against him or her.”
Saying Too Much
Sometimes, in the interest of transparency, the first inclination of many board members is to speak up and talk to neighbors about one of these sensitive issues—but that can be problematic for both them and the condo association itself. The fiduciary responsibility of board members must be taken seriously; what they say can make a condo liable for court action.
Blanch says that when sensitive topics come up, the board should take a cautious, limited role. “There could be consequences if a board member or property manager says something they shouldn’t,” he says. “We always caution our clients to use common sense, which sounds simple but can be complicated. You don’t want to communicate more than you need to. The line is often fuzzy, and most people don’t know when they’ve crossed it.”
“A lot of [domestic] disturbances are public record,” Blanch continues. “So it’s not so much that there's going to be a consequence if the association discloses that there was a report of a domestic violence incident and police came out to the property. But that becomes another question: what is the association’s obligation if there's a volatile relationship in the building? Does the association have a duty to do anything? I don’t think the association is put into any higher duty to protect its individuals in their own relationships.”
“Managers and board members do learn of personal issues from community gossip and via friendly discussions,” says Ulm. “There is seldom correspondence from an attorney or personal communications unless there is a direct effect on the association. For example, there may be a quit claim to change the title ownership on a unit, or an attorney may notify the association that a spouse no longer has rights to the common elements. Other than that, the association is generally unaware of domestic issues for unit owners or tenants already living in the community.”
A board also needs to distinguish between the normal human desire to be protective of one’s friends and neighbors, and the limited obligations, powers and duties of a condominium board. Most experts agree with Blanch that board members shouldn’t get involved in personal arguments between residents, and that they should call their attorney to get advice on what to do if there seems to be any doubt.
So boards and property managers don't have much leeway when it comes to getting involved with existing residents' personal or domestic matters. But what about prospective buyers or residents who have been convicted of serious crimes—such as those mandated by the court to register as sex offenders? While there is no law against registered sex offenders living in a condominium, Florida allows associations to implement restrictions against sexual predators.
“There are restrictions on how close sex offenders can live to schools or other facilities where there are children,” says Kravit, “but unless there are policies outlined in a condo or HOA's governing documents...addressing whether or not individuals convicted of such crimes can’t reside on the property, the association has no power to deny the individual occupancy.”
“There is no Florida law against preventing a sex offender from moving into a condominium but their status is public record, and there are some creative things that associations have done to raise the level of awareness as to who is moving in,” says Blanch. “Sometimes this individual has avoided moving into these types of buildings when the word got out. While there may not be justifiable cause to prevent or deny sex offenders’ applications to reside in a condo, there may be limited grounds.” For a list of registered sex offenders go to The Florida Department of Law Enforcement’s website: www.fdle.state.fl.us.
While a board may not be able to prevent a registered sex offender from moving into their community, Florida State Law FS 718.112 (2) (d) states that a person who has been convicted of any felony in Florida or in a United States District or Territorial Court, or who has been convicted of any offense in another jurisdiction that would be considered a felony if committed in this state, is not eligible for board membership”—unless the felon’s civil rights have been restored for at least five years as of the date on which the person is seeking election.
Between condo documents and the letter of the law however, HOA administrators must always be mindful of preserving residents' privacy and not violating anyone's civil rights. Doing so is not only inappropriate but can be very expensive. “Management must have a regard for the privacy of the individual,” cautions Kravit, “because if convicted sex offenders are harassed and their civil rights are violated it may lead to a lawsuit. The laws reporting the sexual predator Internet lists are defined, and the lists are made public for anyone to research if need be. Management and boards must not promote researching, and could potentially be sued if they're seen as harassing a convicted sex offender. It's a fine line.”
“Residents may want action when they find out there is a sex offender in their community,” Kravit continues. “Some may want the person evicted, and postings put up in the mail room warning of the potential threat. Boards do have certain responsibilities and a fiduciary duty when it comes to addressing hazardous situations—however, other issues must be considered as well, such as how this will have an effect on the property values. A unit owner trying to sell may threaten the association with liability for exploitation of the information.”
Let’s say a condo or association has a situation—criminal or otherwise—where TV and media crews have descended onto the property and residents feel they need extra security to be safe, or even to just get from the parking lot to their front door. Owners may be surprised to find out that in most cases, it’s not the building or association’s responsibility to make that happen—though experts agree that in a heightened risk situation, the board may want to consider heightened security if it’s feasible. The common areas of a condominium complex are private property, which are generally administered by the organization of unit owners. If TV crews or photographers are on the property without permission, the police should be called to remove them.
And that's the mantra that legal pros repeat again and again: When in doubt, call the cops. If residents think there is a problem with a registered resident or some other type of criminal behavior in their building, they should bypass the board and contact the local authorities immediately. It’s fine to let the board know but there is no substitute for notifying the police if you think there is a chance of a violent or criminal occurrence.
Keith Loria is a freelance writer and a frequent contributor to The South Florida Cooperator and other publications.