Page 5 - CooperatorNews South Florida Expo 2021

Security or Surveillance? Q I live in a condominium in Fort Lauderdale. Cameras have been installed in the complex for se- curity purposes, but I feel like I am being watched all the time by the board president of the building. He knows at all times the ins and outs or the things we do when we neighbors are together downstairs by send- ing email regarding our actions—which are only friendly. What to do in that case? —Somebody’s Watching Me A Alessandra Stivelman, Esq., partner at the Hollywood law fi rm of Eisinger Law, says, “Since cameras are becoming more aff ord- able, they are naturally becoming more prev- alent in community associations—gener- ally for security reasons. However, there are many laws, both state and federal, that may impact the association’s authority to install cameras in the common elements of a con- dominium and record audio therefrom. In addition, the association’s governing docu- ments may also impact the board’s authority to install security cameras. “First and foremost, the association may not have had the authority to install cameras in the common elements if the cameras that were installed are deemed a material altera- tion to the association’s common elements. In Florida, the Condominium Act prohibits certain material alterations or improvements to the common elements without either the approval required in the association’s dec- laration or, if the declaration is silent, the statute requires approval of at least 75% of the voting interests. Older arbitration cases have found that the addition of cameras and supporting apparatus constitute a material alteration to the common elements requiring compliance with applicable law. However, newer cases have deemed the installation of certain cameras not to be material in nature. Th ese determinations are made on a case by case basis. “Assuming the association had the au- thority to install security cameras on the common elements, then the issue is one of whether the recording is in violation of Florida law. In Florida, it is illegal to record an oral communication unless the people communicating know of the recording and consent. However, not all conversations are subject to legal protection. Under Florida law, an oral communication is considered a communication that is made with the ex- pectation that it would remain private and not be recorded or heard publicly. Th e Flor- ida Supreme Court has held that for an oral conversation to be protected under Section wasn’t any damage to adjoining units either Kaye Bender Rembaum, which has offi ces 934.03, Florida Statutes, the speaker must time, but the condo board now refuses to ap- have an actual subjective expectation of pri- vacy, along with a societal recognition that recourse to delay or appeal their decision? I tions, which includes all condominium asso- the expectation is reasonable. In determin- ing whether there is a reasonable expectation than I am about forcing someone who has with the Division of Corporations to become of privacy, the courts consider the location signifi cant medical problems to move im- of the conversation, the type of communica- tion at issue, and the way the communication continues. was made. Accordingly, in the event the as- sociation’s security cameras were installed in a public area wherein the owners are aware of the cameras and have no expectation of pri- vacy, then there is likely nothing that can be done to prevent the recording. “However, please note that Section that both the owners and the board of direc- 718.123, Fla. Stat., permits the right of own- ers to peaceably assemble. Specifi cally, the dman, partner at Rachel E. Frydman, PA, in 718.111(12) of Florida Statutes, you are able statute provides as follows: “‘All common elements, common areas, be any and all powers of the association to cords. As you do not reside locally, in your and recreational facilities serving any condo- minium shall be available to unit owners in a lease. An association could have a right to sentative to attend the inspection on your be- the condominium or condominiums served deny a renewal if an owner has a tenant that half. Pursuant to this Statute, the association thereby and their invited guests for the use continues to violate the documents or con- intended for such common elements, com- mon areas, and recreational facilities, subject quest for compliance. It is important to know ing (i.e., minutes of board and membership to the provisions of s. 718.106(4). Th e entity what your governing documents say with re- or entities responsible for the operation of spect to this type of situation. Check with an the board members and their offi ces, and an the common elements, common areas, and attorney if you are not sure how to interpret updated “roster” with the names of all unit recreational facilities may adopt reasonable the language.” rules and regulations pertaining to the use of such common elements, common areas, and recreational facilities. No entity or entities shall unreasonably restrict any unit owner’s right to peaceably assemble or right to invite public offi cers or candidates for public offi ce to appear and speak in common elements, common areas, and recreational facilities.’ “If the association’s use of security cam- eras is interfering with the owner’s right to directors. peaceably assemble, the association and/or its directors or employees may be in violation completely miff ed that I have no idea who response to the inquiry as provided herein of the law (although the direct correlation the board is at our condo, and I just don’t be- between the recording impacting one’s right lieve that withholding this information from ney fees and costs in any subsequent litiga- to peaceably assemble would be diffi cult to an owner is appropriate. Is this lawful? demonstrate). “Assuming the association is not acting up here in Georgia. We have approximately you may wish to send a certifi ed letter to the without due authority in installing and re- viewing/recording security footage and au- dio, the best solution to this owner’s concern my phone number, as well as that of the rest formation of the individual members of the would be to be cautious of what one says and of our board members. Our residents know board. If the board does not respond, you does when in an area where there is no rea- sonable expectation of privacy.” After the Floods Q I own and sublet a condo to a rent- er. Recently, the apartment fl ood- ed twice: once when the renter, who is ill, had left the water on by mistake. Th e second time seems due to plumbing issues that I am responsible for, and which are being repaired. To my knowledge, there prove my renter’s 2022 lease. Do I have any and Tampa, “all Florida non-profi t corpora- am less concerned about my loss of income ciations, must fi le Articles of Incorporation mediately, especially while the pandemic their records annually, which should include —Defending My Renter A “Th e governing documents org). of an association set out the covenants and restrictions available avenues for gathering informa- tors are obligated to follow,” says Rachel Fry- Boca Raton. “Within these documents will to request an inspection of the Offi cial Re- approve or deny a renter and/or renewal of written request you may authorize a repre- tinues to cause a nuisance, aft er repeated re- Who is on Our Board? Q We recently bought an investment 718.112(2)(a)(2) F.S., provides, in pertinent condo in Tampa. We are absentee part, ‘When a unit owner of a residential owners who live near Atlanta. Th e condominium fi les a written inquiry by cer- HOA management company refuses to give tifi ed mail with the board of administration, us the names or contact info of the board of the board shall respond in writing to the unit I’ve never heard of such a thing. I am quiry…Th e failure to provide a substantive For context, I am president of our HOA tion arising out of the inquiry.’ Accordingly, 350 homes in our community. Every resi- dent has my name, my email address, and inquiring about the names and contact in- they can reach one of us at any time. We also may need to consider hiring an attorney to have a management company with which we help you further.” work in tandem. Please let me know what recourse we have that will help us get this information to which we are entitled. Th ank you! —Looking for Names A “Pursuant to Chapter 617 of Florida Statutes,” says Em- ily Gannon, an attorney with in Pompano Beach, Palm Beach Gardens, incorporated, and are required to update the names of directors and a mailing address. Th e Division of Corporations has a website that you can use to search for the informa- tion regarding the association (www.sunbiz. “Additionally, as an owner, you have other tion regarding the board and/or the asso- ciation. Please note that pursuant to Section is required to maintain certain records that will contain the information you are seek- meetings, which should refl ect the names of owners and their mailing addresses, unit identifi cations, voting certifi cations, and, if known, telephone numbers). “Lastly, you have the option to send a ‘written inquiry’ to the association. Section owner within 30 days aft er receipt of the in- precludes the board from recovering attor- tion, administrative proceeding, or arbitra- management company of the association n SOFL.COOPERATORNEWS.COM COOPERATORNEWS SOUTH FLORIDA — EXPO 2021 5 QUESTIONS & ANSWERS Legal A Q & Disclaimer: Th e answers provided in this Q&A column are of a general nature and cannot substitute for professional advice regarding your specifi c circumstances. Always seek the advice of competent legal counsel or other qualifi ed professionals with any questions you may have regarding technical or legal issues.