Page 5 - WFL Cooperator Fall 2019

Pest Infestation Q I was wondering about pest control responsibility. I live in a condo building in South Florida, and I’m getting constant roaches in my unit. I’m a very clean person and had no problem for 10 years. Obviously the building is infested. Who is supposed to fix it? —Not My Responsibility A “What you are actually ask- ing is whether the associa- tion has a duty to eradicate the problem that is emanating from out- side your unit,” says attorney Jay Steven Levine of Levine Law Group, which has offices in Boca Raton, North Palm Beach, and Indian Harbour Beach. “In determin- ing whether there is a duty, the first place is to look at the condominium documents to determine whether the association has a duty to provide exterminating servic- es. If the duty lies with the association, then the association must take whatever measures are necessary to eliminate the problem that you are experiencing within your unit. If instead the duty does not ex- ist within the condominium documents, then the next evaluation is whether the association is undertaking to provide ex- terminating services within the unit even though the condominium documents are silent on the subject. If the association has undertaken that task, even where the condominium documents are silent, then the association has assumed the duty and would have the obligation to take reason- able measures to eradicate the problem. “Where the condominium documents are silent on the association performing exterminating services within the unit, and the association has not undertaken sance from continuing. You should write this task voluntarily, then the next evalua- tion is whether the problem is emanating sociation determine the cause of the in- from the common elements. If that is the festation and provide proper treatment to tion somewhat challenging,” says attorney case, then the association has a statutory prevent infestation inside your unit.” duty to treat the common elements to eliminate the infestation. The bigger issue would be if it is not the common elements causing the problem, but some other unit within the condominium. Under these circumstances, the obligation of the asso- ciation to eliminate the problem depends signed parking spot. Since that time, they exclusive right to use one parking space on whether the condominium documents have been trying to get a second parking which would be deemed a limited com- provide that the association has the duty spot since everyone else in the building mon element. This means that though the to enforce the condominium documents. has two assigned parking spots. With lim- A provision in the condominium docu- ments to be enforced would be by the typ- ical provision that prohibits the conduct of any nuisances within the condomini- um – and infestation would constitute a fails, they would get a handicap sticker used for guests or other owners on a first- nuisance. If the condominium documents and have a spot for their new second car. come, first-serve basis. provide that the association generally has After legal action and going through me- a duty to enforce those same documents, diation, the matter remains open as their of directors has taken it upon themselves then the association would have a duty lawyer has indicated he would proceed no to give to each unit owner the exclusive to eradicate any infestation in any unit further with any action unless they gave right to use another parking space to pre- found to be the cause of the problem. “If instead the condominium docu- ments do not provide that the association has a duty to enforce the documents, then tained a handicap sticker and are now authority to turn common element park- the association would not have a duty to parking the second vehicle in the handi- enforce against a nuisance violation; there cap spot. They live here only part-time I suspect that right does not exist in the is a reported court case that has held that and the board doesn’t know what to do. the association does not have a duty to enforce the documents where the docu- ments simply provide that the association spot they said that I cannot ask any ques- may enforce the condominium docu- ments, but there is no language imposing of the spot, or the board would be sued. park another car as the remaining space a duty of enforcement upon the associa- tion. In that event, the association did not Can an owner with one assigned parking potential selective enforcement of a park- have the responsibility to address this spot use a handicap spot or a guest spot ing program, which may not even be le- problem, except when necessary to treat for a full-time second vehicle ? a common element causing the problem. “Regardless of whether the association has a duty, the association certainly has a power to enforce and to prevent the nui- to the association requesting that the as- Parking Complaint Q Three years ago a couple sociation governed under Chapter 718. bought a condo in our building Second, I presume, like many condo- “as is,” and with only one as- ited parking there isn’t room to create a same is reserved exclusively for a particu- new additional parking spot. Three months ago the couple told also presuming that any “excess spaces” our maintenance person that if all else were initially unassigned and meant to be him more money and thus things are on sumably accommodate those owners who hold. The couple now have recently ob- When I asked them how long they a violation of the Condominium Act. To were going to be parking in the handicap add insult to injury, all the unit owners tions about their handicap or their use er, who has been told there is no room to How do we resolve this game playing? is a handicap space. As such, we have the —In Limbo A “The question provided is missing several facts, which makes answering this ques- Leonard Wilder of the firm Bakalar & As- sociates, P.A., in Coral Springs. “As such, I am going to make some presumptions. “I presume this is a condominium as- miniums, that each unit comes with the space is a common element, the use of lar unit to the exclusion of others. I am “Somewhere down the line, the board have second cars. It is highly questionable if the board of directors would have such ing spaces to limited common elements. governing documents and thus could be have two assigned spaces except one own- gal. “Turning my question to the handicap space: With limited exception, condomin- FLCOOPERATOR.COM THE WESTERN FLORIDA COOPERATOR —FALL 2019 5 TAMPA CONVENTION CENTER THURSDAY, DECEMBER 5, 10AM-3:30PM FREE REGISTRATION: TAMPA-EXPO.COM THE BEST TIME TO FIND AN EXPERT IS BEFORE YOU NEED ONE. THE COOPERATOR EXPO 2019 WHERE BUILDINGS MEET SERVICES QUESTIONS & ANSWERS Legal A Q & continued on page 11