Legal Review

What Your Association Needs to Know, Continued

Published January 2016

Editor’s Note: This is a continuation from the December 2015 issue on pages 12–18 whereby FLCAJ asked legal service providers to comment on pertinent topics that impact community associations.

Why Plan When You Can Sue?

by Michael J. Gelfand, Esq.

Arbitration, mediation, and the rock-paper-scissors game may keep you out of court; but why wait for a lawsuit? Plan to avoid claims early. Try it. It is actually easy, fast, and cheap! So why do so many communities find themselves in lawsuits? Consider this Top 10 list to help your community stay out of trouble.

Written Contracts. Contracts are not feared tools for lawsuits. Contracts help ensure that everyone has mutual expectations, which avoids disputes. Do not fear lengthy terms, especially for multi-year and complicated projects because “the devil is in the details!”

Slow, Stop, and Ask Questions. If you do not understand, or are confused, call a time out and ask your question. Do not be embarrassed because others likely have the same questions, but are not brave enough to ask. Whether a phrase or an unusual definition, ask first instead of assuming.

Read First. Do not assume the contract is “standard”! Standard contracts are a rarity. A corollary is: that just because it is written does not mean that it is true.

Insurance. Confirm that the written contract specifies the vendor’s requirement to have workers’ compensation coverage, as well as liability, and
to have licenses and permits. Frequently a vendor’s blink of an eye and suggestion that insurance, licenses permits, and approvals can be avoided is a warning signal to “stay clear.”

Cooling Off. While many states have cooling-off periods for buying guns and condominium units, those laws usually do not apply to other
contracts. Sign it; you own it!

Gotcha! “Too good to be true” is correct. If you cut margins too tight, then you may be asking for the contracting party to perform at marginal levels.

Just Oral? A contract does not have to be written. Your word may actually be your bond, and what you say can
be used against you!

Others Do It. This teenager’s favorite cry never justifies adult behavior. Others may have different documents or might not have been challenged.

Authority. Did you first check your “documents” to determine if you have authority to sign the contract, spend the money, and take the contemplated action?

Counsel. Court decisions change statutory application and impact rights. The retired attorney from “up north” is not versed in the nuances of Florida law. Consult with counsel especially when significant agreements are out of the usual.

As you can see, the best way to avoid claims is to engage in good contracting processes in advance.

For more information, visit www.gelfandarpe.com.