Memorandum to Clients

October 2004

Vol. XIV No.10

Four Hurricanes in a month! Remarkably, none of the owners, residents or staff in any of the Firm’s client communities suffered significant physical injury as a result of the quadruple whammy.

Particularly in light of the damage on the West Coast, the Panhandle and in the Caribbean, this is the time to be upbeat, to be positive and to recognize how lucky we are. By the time clients receive this, the first step of disaster recovery should have been completed - securing physical space against further damage.

The task now is rebuilding. Before jumping into projects, most clients are carefully considering priorities. It is tempting for the "one person left in town" to take charge and make decisions. To help ensure that various perspectives are taken into account and to be fair to the "one person left," many communities are taking extra steps to seek participation by directors and when possible, owners. Open decision making up front can help reduce dissension later.

Community leaders can help set the tone. It seems that after being cooped up in windowless homes without air-conditioning, owners sometimes lose a sense of perspective. Thus, the Firm has urged communities to remind owners not only how lucky everyone is in comparison, but that the associations’ first job is structural, not amenities. Individual owners’ comfort needs may have to wait. Associations may want to distribute information by flyer, or post information on websites if available.

Directors and members are slowly recognizing that staff is faced with a double impact. Not only must physical reconstruction take place, but this is budget season! Setting a budget, anticipating expenses and assessment rates, is never fun. This year will be no different.

The quadruple whammy has reinforced much of the advice that associations received in the past. Reserves are extremely helpful to avoid special assessments after physical failures. When considering reserves, insurance deductibles should be considered. Bad debt reserves are especially helpful to reduce the burden of delinquent owners.

Many communities have looked elsewhere for assistance. Governmental representatives are reminding us that if a community is gated and walled from a municipality, then the municipality may not provide services. Similarly, the Federal Emergency Management Agency has announced that they will not pay for debris removal inside gated communities with private roads.

Where there has been physical damage, association documents must be carefully reviewed. Many communities’ declarations require insurance trustees to handle insurance funds. Many other documents also have a very strict requirement concerning what must be reconstructed and how the funds are to be raised.

As always, pace your communities’ efforts so that resources, including time, physical energy and emotional well-being are not strained to the breaking point. Individual directors should be especially careful ensuring that their efforts do not create health problems exacerbating the situation.

Above all, be positive because our communities will move forward and be pleasant places to live in the future.DOG RESTRICTIONS: TWO IS THE LIMIT

Do you have a problem with pets in your community? An association can amend its documents reducing the number of pets an owner can maintain. But what happens with owners who own too many pets at the time the amendment is passed?

A recent Florida appellate decision points out that the government can retroactively apply legislation enacted pursuant to its police powers to reduce the number of dogs. Bal Harbour Village in Miami-Dade County passed an ordinance limiting the number of dogs a homeowner may maintain. The ordinance provides that "[n]o Responsible Party shall keep more than a total of two (2) dogs and/or four (4) puppies at any household in the Village or any commercial property." Bal Harbour Village enacted this ordinance in response to complaints involving dogs roaming around unleashed, dog bites, excessive barking and the failure of owners to pick up after their dogs.

At the time Bal Harbour Village enacted the ordinance, William Welsh owned four dogs. Bal Harbour Village cited Mr. Walsh for repeated violations of the ordinance. Nonetheless, Mr. Walsh refused to reduce the number of dogs in his home to two. Bal Harbour Village sued Mr. Walsh, seeking an injunction preventing him from owning more than two dogs. The trial court ruled that the ordinance could not be enforced against residents who owned more than two dogs prior to enactment of the ordinance.

The Florida appellate court disagreed with the trial court and ruled that the legislature has broad discretion to declare a particular activity to be a public nuisance and to enact legislation to abate the nuisance pursuant to its police power.