May 2018 Newsletter

V O L . 6 9 • M A Y 2 0 1 8 • W W W . B R O W A R D C O A L I T I O N . O R G
V O L . 6 9 • M A Y 2 0 1 8 • W W W . B R O W A R D C O A L I T I O N . O R G
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What's Inside.
What's Inside.
What's Inside.
When construction occurs next
When construction occurs next
door,
door, When your
your
Board construction Board
needs
needs occurs to
to
get
get next
involved involved
door, early! your
early!
Board needs to get
involved early!
HOA HOA Hires Hires Private Investigator
HOA Hires Private Investigator
to to Catch Owners Conducting
to Catch Owners Conducting
Short-Term Short-Term
Rentals
Rentals
How How to How to wash to wash the the Association
clean clean clean of of a a of dirty a dirty laundry laundry lease. lease.
May Meeting Hosted by
May Meeting Hosted by
May Midway Meeting Utility Hosted Services
Midway Utility Services
by
Midway Utility Services
Meeting Topic:
Meeting Why Submeter Topic:
Meeting Why Submeter Topic: 1
Why Submeter

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HOW TO WASH
THE ASSOCIATION
CLEAN OF A
DIRTY
LAUNDRY
LEASE
The termination and transitioning
from one laundry vending company to
another can be a dirty job. Rarely do companies
fight as hard as laundry vending
machine companies. While community
associations should always ensure
that their laundry lease with a laundry
vending company includes clear termination provisions and specific
obligations of the parties upon termination, the scenario as
occurred in the case of CSC Service Works, Inc. v. Boca Bayou
Condominium Association, Inc. and Commercial Laundries, Inc.,
recently decided by Florida’s Fourth District Court of Appeal in its
March 7, 2018 published opinion, could happen to any association.
The lessons learned from this case are equally relevant to many other
contract situations, too.
In this case, Boca Bayou Condominium Association, Inc.
(“Association”) had a laundry lease with the laundry vending
company, CSC Service Works, Inc. (“CSC”). Pursuant to the laundry
lease, CSC was to install commercial washers and dryers in the
Association’s 26 laundry rooms and maintain them for an initial
term of seven years. The laundry lease also contained a seriously
noxious and repugnant “right of first refusal” provision which
gave CSC the option to again lease the Association’s laundry
rooms before the Association is allowed to enter into a lease with a
different laundry vending company.
Upon the expiration of the initial seven-year term, the
Association and CSC extended the laundry lease for an additional
seven years. After the expiration of the extended seven-year term,
CSC continued to lease the Association’s laundry rooms and have
its washers and dryers in the Association’s laundry rooms on a
month-to-month basis for almost two years. Around that time, the
Association began receiving complaints from the residents.
Spurred by the resident’s complaints, the Association sought
lease offers from several laundry vending companies, including
CSC and Commercial Laundries, Inc. The Association decided
to go with Commercial Laundries. As such, the Association then
sent CSC a letter terminating its laundry lease and inquiring as to
when CSC would come to disconnect and remove its washers and
dryers from the Association’s laundry rooms.
Just over a week prior to Commercial Laundries’ scheduled
delivery and installation of its washers and dryers, CSC informed
the Association and Commercial Laundries that it was exercising
its right of first refusal. However, CSC’s right of first refusal was
denied by the Association.
After several attempts by both the Association and Commercial
Laundries to have CSC remove its washers and dryers, CSC failed
to remove its washers and dryers in time for Commercial Laundries
to install its washers and dryers. As a result, when Commercial
Laundries arrived at the Association’s condominium with its
washers and dryers in tow, Commercial Laundries disconnected
CSC’s washers and dryers from the water and electric hook-ups
and moved them to the side of the laundry rooms for CSC’s removal.
None of CSC’s washers and dryers were damaged in the
process or removed from the Association’s laundry rooms. Also,
CSC was welcome to go to the Association’s laundry rooms,
which remained unlocked, to remove their washers and dryers at
any time.
by Jeffrey A. Rembaum
Kaye Bender Rembaum. Attorney’s at Law
Due to CSC’s continued failure to
remove its washers and dryers, the Association
sent CSC a pre-suit demand letter
providing that if CSC did not remove its
washers and dryers within 15 days, the
Association, as landlord, would evict
CSC from the Association’s laundry
rooms. Although CSC ultimately removed its washers and dryers
in compliance with the Association’s letter, it was merely the beginning
of its aggressive fight which resulted in a lawsuit being
filed by CSC against the Association and Commercial Laundries
for breach of the laundry lease, tortious interference, conversion,
and unlawful detainer, which was the subject of this case.
At trial, CSC argued that disconnecting its washers and dryers
without legal process or CSC’s knowledge or consent was tantamount
to being ousted from the Association’s laundry rooms. In
the end, the case was decided by a jury. Yes, that’s right, CSC’s
dispute went to the jury. As an aside, think of the tens of thousands
of dollars expended in legal fees and costs just to get to that
point. The jury ultimately decided in favor of the Association
and Commercial Laundries. Then CSC appealed and lost. Thus
the trial court’s jury decision was upheld by Florida’s Fourth
District Court of Appeal.
On appeal, CSC again argued that disconnecting its washers
and dryers without legal process or CSC’s knowledge or consent
was tantamount to an “ouster” from the Association’s laundry
rooms and wrongful repossession of the laundry rooms by the
Association. In legal terms, that is referred to as “unlawful detainer.”
In defense, the Association argued that the disconnecting was not
ouster and repossession because CSC’s washers and dryers were
never removed from the laundry rooms.
The Court provided that there are three factors in an unlawful
detainer action: (1) the plaintiff (CSC) was in peaceful possession of
the premises (the laundry rooms); (2) the plaintiff (CSC) was ousted
of actual possession of the premises (the laundry rooms); and (3) the
defendant (the Association and Commercial Laundries) withheld
possession of the premises (the laundry rooms) from the plaintiff
(CSC) without consent or legal process.
Because CSC’s washers and dryers were never removed from
the laundry rooms, the Court held that the action of disconnecting
CSC’s washers and dryers and moving them to the side of
the laundry rooms did not amount to ouster of CSC from its actual
possession of the laundry rooms as required by an action for
unlawful detainer. While the disconnecting and relocation of the
washers and dryers may be a form of what the Court refers to as
“constructive or useful dispossession,” unlawful detainer actions
require actual dispossession, which did not occur in this case.
Laundry leases, while often quite short, are also often written in
tiny print whose terms can even give an experienced lawyer a run
for the money as to the lease’s long-term implications. The laundry
lease makes up for its brevity with obnoxious long-term effects
and difficult concepts for a layman to understand. With that in
mind, this case demonstrates the need for the association’s lawyer
to review all of the association’s contracts. Just because the lease
is two pages long, this does not mean its financial implications are
not extremely far reaching.
In any event, it is great to the see an association prevail
against the laundry machine vendor!
4

HOA Hires Private Investigator to Catch Owners
Conducting Short-Term Rentals
by Roberto C. Blanch
SRHL Law
Condominium associations and HOAs
throughout South Florida as well as across the
country are seeking effective responses to the
problem of short-term rentals that are in violation
of their rules and restrictions. These unauthorized
rentals, which have become prevalent with
the growth of Airbnb and other online homesharing
platforms, are creating significant
security and liability concerns for associations.
One response by a San Diego homeowners
association recently drew the attention of its
local ABC affiliate, which chronicled how the
community had retained a private investigator
to gather and document incontrovertible
proof that specific owners were conducting
the restricted rentals. The licensed private
detective and his associates were hired by
the HOA and other local associations to investigate
homeowners and tenants who are
violating association bylaws and CC&Rs that
prohibit turning units into short-term vacation
rentals.
While the hiring of private detectives may
initially seem as an extreme measure for an
association, it makes sense when one considers
the risks and concerns that are brought on by
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these rentals for HOAs and condominiums.
Also, court actions may become necessary
against some unit owners who flout the rules,
and the evidence obtained by these investigators
as well as their testimony can be very
helpful in these proceedings.
In order to get away with these rentals, savvy
owners have been known to sneak their
transient guests into the property by advising
security that their visit is authorized. As such,
enhanced vigilance and guest-screening
measures have become necessary, and
many associations are now developing and
implementing new registration forms for use
with guests and tenants along with written
assurances and non-compensation statements
indicating that they are not paying
for their stays.
In addition to the use of private detectives,
the implementation of a clear fining or suspension
policy, if permitted, is essential for
associations to address unauthorized shortterm
rentals. This will typically entail the adoption
of a new rule in which all of the fines and
other consequences are delineated.
Community associations are also responding
by adopting new amendments, bylaws or
rules to limit the number of nights a residence
may be rented, which can offer a level of
flexibility for owners while also avoiding the
possibility of creating a revolving door of
unfettered short-term guests.
As the concerns created by the growth of
short-term rentals continue to mount for community
associations across the country, appropriate
and effective responses such as these
will help ameliorate the problem.

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561-693-3160
www.citiquiethurricanewindows.com

When construction occurs next door,
your Board needs to get involved early!
By Donna DiMaggio Berger
Becker Lawyers
It’s likely that at some point during your community’s
lifespan, new construction will occur nearby and the
impact on your residents will vary both short and
long-term depending on the steps your Board takes
early in the process. Sometimes new construction
is welcomed enthusiastically by the members of an
established community but more often than not,
nearby construction strikes dread in the hearts and
minds of many residents and board members who
fear noise, disruption, debris, impaired views and incidental
damage.
Communities facing the prospect of new construction
next door should not go “on the attack” but should
engage experienced counsel to help them navigate
the construction process, set realistic expectations
for their residents, reach agreement on protective
measures to be provided by the contractor/developer,
and receive compensation where appropriate. If
handled properly, the new construction can do much
to enhance your community’s value. If mishandled,
you could wind up with new construction that encroaches
on your land, damages your landscaping
and exterior amenities, adversely impacts drainage,
and, in severe cases, causes structural cracks in
your buildings.
Naturally, the individuals or corporate entity driving
the new construction want your community’s support
to sail through the governmental approval process.
Boards who feel that their concerns and issues have
been properly addressed by the developer next door
will be much more likely to provide that support.
There are many factors to discuss and consider with
the developer including the intensity of the proposed
use, traffic, compatibility issues, construction management,
easement agreements, rezoning, and other
material issues. Municipal Land Developer Codes
usually require public participation so starting a dialogue
early in the process affords your Board with
an opportunity for your community and the developer
to speak with a unified voice and to address major
issues and concerns before being heard in a public
hearing. The developer will certainly want to address
your concerns in private rather than face them at a
public hearing.
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Some common issues that should be addressed
include:
· Debris
· Nuisance
· Structural impact
· Encroachments (both on their side and yours)
· View Impairment
· Buffering and noise mitigation measures
· Trademark Infringement (depending on the name
of the new community, shopping center, etc.)
· Security
These kinds of negotiations may take six months to
well over a year and will include your counsel attending
and speaking at multiple Board meetings, Developer
Town Halls, Municipal Public Hearings, researching
City Zoning and Land Use, reviewing Mas6ter Plan
Design guidelines, clarifying construction issues/
timelines and negotiating the design to take into account
view-lines, setbacks, traffic, loading, etc.
If you serve on an association board, you well know
that directors are sometimes held responsible by
some community members for issues completely
outside your control. Don’t let neighboring construction
become another boiling point in your community.
If you currently have construction proposed or underway
near your community and you wish to learn
how to best protect your community’s rights, please
email me at dberger@beckerlawyers.com or call
954-364-6031.

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