Insight

“An Association’s Response to Owners Requiring Additional Care,” SFPMA

Photo of an older couple hugging.Some older individuals choose to live out their final years in their personal residences, alone, rather than in nursing homes or assisted-living facilities. Additionally, there are times that other individuals may experience certain mental health issues that make them unable to adequately care for themselves. Associations are often at a loss with how to assist these individuals. Plus, associations are not healthcare or mental health providers, so they are not equipped to address such matters. Instead, associations will need to request help from family, friends, or governmental entities.

Depending on the severity and facts of a particular situation, the association should attempt to contact known relatives to determine if there is someone available to assist, as it is best that the association allow the family to intervene. Associations should consider having owners complete a form that would list relatives, friends, emergency contacts, to assist in such situations. However, there are many cases where the resident does not want their family to help, where the family is unwilling or unable to help, or where the association does not know of any relative or friend of the owner. In those instances, the association may need to see if there is any governmental assistance.

The association can contact Code Enforcement if the property is in so disrepair that it is a code violation. Some counties also have Elder Helplines that could be contacted. The Florida Department of Elder Affairs has an Elder Helpline at 1-800-963-5337.

For issues regarding self-neglect, the Adult Protective Services, Division of the Department of Children and Family Services (DCF) Abuse Hotline can be called at (800-962-2873). They should send out an investigator to investigate and perform assessments pursuant to Chapter 415 of the Florida Statutes, which allows the state to intervene in the instance that “senior neglect” is suspected. “Neglect” is defined in Section 415.102(16), Florida Statutes as follows:

  • “Neglect” means the failure or omission on the part of the caregiver or vulnerable adult to provide the care, supervision, and services necessary to maintain the physical and mental health of the vulnerable adult, including, but not limited to, food, clothing, medicine, shelter, supervision, and medical services, which a prudent person would consider essential for the well-being of a vulnerable adult. The term “neglect” also means the failure of a caregiver or vulnerable adult to make a reasonable effort to protect a vulnerable adult from abuse, neglect, or exploitation by others. “Neglect” is repeated conduct or a single incident of carelessness which produces or could reasonably be expected to result in serious physical or psychological injury or a substantial risk of death.

Finally, local law enforcement should be contacted if the association is concerned for an owner’s safety. They can perform a “welfare check” to check on the safety or well-being of a person. Such a check could lead to involuntary commitment pursuant to the Florida Mental Health Act, also known as the Baker Act. This is occasionally a viable option when a person’s inability to care for themselves presents a danger to themselves or others.

If the resident refuses to accept the assistance offered by family or applicable agencies and, instead, continues to cause problems for other residents, or create hazardous conditions, the association could theoretically attempt to enforce the relevant provisions of the association’s governing documents, usually through a nuisance provision.

As you might imagine, the travails of the elderly or those with mental health issues are rarely optimal cases to take before a judge or an arbitrator. However, at least in some cases, it may be worth taking the initial steps necessary to proceed with legal action including a “cease and desist” or “opportunity to cure” letter. The association could also use the legal action as a way to get a legal guardian appointed for the owner. Perhaps the association could seek a determination from a court as to whether the association could cure the violations themselves. While this may not be an attractive option for the association, it may be the only available option.

Unfortunately, dealing with residents that need help is a difficult situation for associations with no clear answer as to how to resolve the problem. Hopefully, the above options will be able to provide some guidance and assistance.

Hiring your own Public Adjuster – A Survey and Chance to WIN $100

This survey addressing your past experience with insurance claims and adjusters is the ultimate survey in our summer series for community association owners, board members, and management professionals. Your participation is fundamental to CALL's efforts to provide real data to your public policymakers when we discuss the impact legislation has on private communities across Florida. As we head into the most active part of hurricane season, this is the perfect time to have your voice heard on this topic.

New Far/Bar Rider for Miami-Dade County Residential Property

 

Effective June, 2019, The FAR/BAR Contract documents now include a new Rider: CC. Miami-Dade County Special Taxing District Disclosure.

Rider “CC.” should be used with contracts for the sale of certain residential property in Miami-Dade County.  The rider stems from an amendment to Sec. 18-20.2 of the Miami-Dade County Code which requires that sellers disclose to buyers the existence of special taxing district(s), if applicable.

Anyone selling a residential property in Miami-Dade County should check their property tax bill and look for any non-ad valorem taxes on the bill.  If those non-ad valorem taxes are due to a special taxing district assessment, then a seller must disclose the tax via contract by using the new Rider CC.

For more information about the Rider or the Ordinance, contact Scott Marcus.

What’s Up with All This Traffic? The Impact of Neighboring Development on Community Association Roads

Whether you know it or not, the roads traveling through your subdivision are likely easements created for the purpose of providing ingress/egress access to public streets. And whether you know it or not, those easements may also benefit neighboring properties, giving them access through your subdivision to a point of entry on a public road.

Solar Panels & HOAs: Can They Be Restricted?

While solar panels are often considered unsightly, they are a renewable energy device. For an individual home, they must be permitted by a homeowners association. However, they can be regulated. The relevant statute regarding solar panels is Section 163.04, Florida Statutes, which provides that no ordinances or laws can prohibit “the installation of solar collectors, clotheslines, or other energy devices based on renewable resources.” The Statute is not limited in it

Helpful or Harmful? Emotional Support Animals in Your Community

This survey regarding Emotional Support Animals helps us to gather opinions on a hot button issue for those who live in private residential communities. ESA certificates are currently able to be obtained without the supervision of a doctor, which often leaves neighbors and property managers frustrated. Bill 1128 would require Floridians with an ESA to be certified by an MD and have an emotional or physical ailment documented.

Challenging the New Development Next Door

In most county and city governments, the land use process is one that will allow for some basic decisions to be made at staff levels, with higher levels of review in the form of public hearings required for larger scale projects, or proposals that deviate too far from the established standards for a given development.  The public hearings require notice to clearly affected nearby property owners and an opportunity for evidence to be presented by the petitioner, the planning department and defined affected person or groups, so a panel or magistrate can weigh the evidence and make a decision.

Airbnb and Your Community – A Survey and Chance to WIN $100

As many of you may know, SB 824 sponsored by Senator Diaz, would have made it much more difficult if not impossible for your private residential community to restrict or prohibit short-term rental activity on internet platforms like Airbnb. While that bill did not pass the Florida Legislature, we have every expectation that Airbnb and similar companies will push for a reboot in the 2020 Legislative Session.