25Jun 2019
Unlicensed Contractors

Using Unlicensed Contractors Can Cost More

Associations lose hundreds of thousands of dollars to unlicensed and uncertified contractors every year. Associations should protect their property by avoiding unlicensed contractors. Unlicensed individuals cannot pull permits and often carry no insurance. Licensing is not necessarily a measure of competence but it presupposes a certain degree of professionalism and commitment to the industry. When dealing with an unlicensed contractor and the work is not done in accordance with the applicable building codes or workmanship standards, there is no recourse against the unlicensed individual other than through the courts. Although licensing is not a guarantee of the contractor’s work, it can protect the Association from a number of potential problems such as:

  • Unlicensed contractors are often unfamiliar with building codes, inspection sequences and inspection requirements.
  • Limited recourse for breach of contract and/or defective work. When dealing with a licensed contractor, the Association always has the option of contacting the appropriate licensing agency. Some agencies are able to resolve issues and assist in recovering consumer losses. At a minimum, licensing agencies have the authority to suspend or revoke licensing privileges. This does not eliminate all contractor problems, but does provide contractors with an incentive to conduct fair business practices and comply with the law.
  • Unlicensed contractors are often uninsured. If an Association uses an unlicensed contractor and property damage occurs, the individual may have no way of reimbursing the Association for damages caused. Furthermore, if a third party suffers an injury at the Association’s property, there may be no insurance coverage. Many homeowners insurance policies exclude claims arising from unlicensed construction practices.
  • Unlicensed contractors cannot pull permits. If the Association pulls the permits for an unlicensed contractor, then the Association, not the person doing the work, is held responsible.
  • If the Association hires an unlicensed contractor, the Department of Business and Professional Regulation or the Building Department may issue a cease and desist order to stop the work, and may decide to take legal action against the Association to impose civil penalties for aiding and abetting unlicensed activities.
  • If the Association hires an unlicensed contractor and the work is not completed in accordance with state and local building codes, the Association may have to pay additional monies to have the work brought into compliance.
  • If an unlicensed contractor does not pay his subcontractors or suppliers, the Association may be liable for these costs. Subcontractors and/or suppliers who work for unlicensed contractors still have the right to file liens on the Association’s property.

There are steps that Associations can take to help protect themselves from unlicensed contractors. When hiring a contractor, Associations should:

  1. Always ask to see the State of Florida license.
  2. Note the license number and verify that the license is current and in good standing. To check on the license, call 850-487-1395 or visit www.myfloridalicense.com.
  3. Ask for references and check each one.
  4. Always get several estimates for comparison.
  5. Never pay in cash, and never provide large up-front deposits. Beware of scams when individuals ask for money up-front or will only accept cash.
  6. Beware of writing checks made payable to individuals especially, when the Association is dealing with a company or a corporation.
  7. Everything should be in writing. At a bare minimum, a contract should include the contractor’s names, address and professional license number; a detailed description of the work to be completed and materials to be supplies; a completion date and total cost.
  8. Have an attorney review all contracts before signing anything.

In these economic times, there are many individuals who try to hold themselves out as licensed contractors. They usually make promises of quick and inexpensive repairs and require large up-front deposits. When work needs to be done, Associations should choose a contractor carefully and make sure the contractor is properly licensed and insured.

 

Steven H. Mezer

Board Certified Condominium and Planned Development Law Attorney, Becker
Tampa
 | bio

 

25Jun 2019
hurricane season

Be Prepared

We are now into hurricane season. Now is a good time for associations to start to work on developing disaster preparedness and response plans for the future, or refining current plans based on what has been learned from recent events.

The steps that community associations can take to prepare for major casualties such as hurricanes, tornados, and fires, include review of what coverage is actually provided by your insurance policies, consideration of having flood insurance, and preparation of disaster preparedness and response plans. Now is the time. I have found that when years go by with no major hurricanes, people tend to lose focus on the importance of good planning. Human nature, I guess.

Section 718.111(11)(d) of the Florida Statutes requires a condominium association to use its best efforts to obtain and maintain “adequate insurance” to protect the association, the association property, the common elements, and the condominium property. The condominium statute does not specifically require flood insurance.  In fact, the law states that a condominium association “may also obtain … flood insurance,” implying that flood insurance is permissive, rather than legally required.

For condominiums located within designated flood hazard areas, flood insurance could be considered mandatory by the “adequate” insurance requirement of the statute. If flood damage occurs, not only the structure of the building may be damaged, but the electrical system, plumbing, and other utilities may have to be replaced in their entirety. In a high rise condominium building, unit owners on higher floors often forget that they also own a share of the lower floors. Further, windstorm insurance does not cover damage due to flooding, and vice versa. This could result in associations being underinsured in the event of damage due to both wind and flood. Further, a high percentage of flood claims occur outside of flood zones, so every association should take a hard look at this issue.

The Florida Homeowners’ Association Act, Chapter 720 of the Florida Statutes, imposes almost no insurance requirements on homeowners’ associations. The scope of required coverage and types of insurance required will be dictated solely by the governing documents. For attached structures, such as townhouses or villas, the difference between good and bad documents can mean the difference between financial success and disaster. Talk to your insurance agent and attorney to make sure the documents actually say what you want them to say, and are consistent with how you are insuring.

Associations should develop guidelines as to what actions will be done both before and after a disaster occurs. Before a disaster, associations should ensure that important documents such as insurance policies and association records are secured in a safe place, including having such documents on-line, designating an out of state contact for the association, and taking photographs and videos to document property conditions for insurance purposes.

After a disaster occurs, associations should rely on established relationships with contractors to perform emergency repairs. Associations should assemble a list of post-disaster contacts such as board members, management, attorneys, engineers, insurance agents, insurance adjusters, and so forth. There are, unfortunately, some opportunists and charlatans who chase these storms.

Associations should develop a program to keep owners informed regarding the status of association matters, for instance by email updates or posting on a website. Many association-owner disputes arise from these events. Some could be avoided with a little communication.

Review your governing documents with your attorney, particularly as to “emergency powers”. Have a clear understanding of what you can do (legally) in the event of an emergency. Adopt an emergency plan before the emergency. Consider needs of residents with disabilities, the impact of loss of electricity, staffing needs, locate the nearest shelters, meet with first responders who serve your community to address their plans and your needs, and have multiple alternatives for communication with Board members, management and contractors. Consider a safe or duplicate location for the official records, keep a separate copy of your insurance policies and service contracts. Consider pre-qualifying for a line of credit to assure available funds. Do not settle any claim without your attorney’s involvement.

Hopefully, it will be a long time before we have to deal with these issues. However, we certainly cannot count on it and should let past experiences serve as a wake-up call that an ounce of prevention is often worth a pound of cure.

 

Steven H. Mezer

Board Certified Condominium and Planned Development Law Attorney, Becker
Tampa
 | bio

 

25Jun 2019
Association party

It’s Time to Party – Responsibly

Everyone, generally speaking, loves a good party – who doesn’t?  What defines a “good” party may differ, however, depending on whether you are the Association or the party-goer.

Some associations choose to sponsor or allow social gatherings in the common areas of the association, which may involve food, entertainment, and perhaps the consumption of alcoholic beverages. In deciding whether or not to serve or allow the consumption of alcoholic beverages on association property an association should consider, at a minimum, state and local liquor license requirements, association liability, and insurance.  Before allowing alcohol to be sold, served, or consumed on association property, at a minimum, an association should take steps to insure it is compliant with alcoholic beverage laws, is protected from liability to the greatest extent possible by using waivers and by consulting with your insurance agent for proper coverage. 

A common question posed to our firm was whether or not an association is required to obtain a liquor license to serve wine and beer at social events sponsored by the association.  Sometimes the question includes charging a ticket price for admission to such events, at which alcoholic beverages would be available to attendees at no additional cost, i.e., the cost of the alcohol would be covered by the payment for the ticket. 

The main factor which determines if a liquor license is required is whether or not the alcohol is being “sold,” or provided for free, courtesy of a “social host.” Paying or trading something of value for alcohol, whether directly or indirectly, can trigger state and local liquor laws, and such transaction may be considered a “sale.” If alcohol is being “sold,” the applicable laws are different than if the alcohol is being provided free (without “consideration,” i.e., payment or something of value exchanged) to social guests by a social host.

Florida Statutes, Title XXXIV, Alcoholic Beverages and Tobacco, Chapter 561, Beverage Law: Administration, Section 561.01(9), Florida Statutes, states:

(9) “Sale” and “sell” mean any transfer of an alcoholic beverage for a consideration, any gift of an alcoholic beverage in connection with, or as a part of, a transfer of property other than an alcoholic beverage for a consideration, or the serving of an alcoholic beverage by a club licensed under the Beverage Law.

Chapter 562, Beverage Law: Enforcement, Section 562.12(1), Florida Statutes, states that selling alcohol without a license is prohibited, and any person who sells alcoholic beverages without proper licensure is violating the law, which is a misdemeanor of the second degree:

(1)It is unlawful for any person to sell alcoholic beverages without a license, and it is unlawful for any licensee to sell alcoholic beverages except as permitted by her or his license, or to sell such beverages in any manner except that permitted by her or his license; and any licensee or other person who keeps or possesses alcoholic beverages not permitted to be sold by her or his license, or not permitted to be sold without a license, with intent to sell or dispose of same unlawfully, or who keeps and maintains a place where alcoholic beverages are sold unlawfully, is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

Applying the above law we conclude that selling tickets to or requiring donations from attendees of association functions at which alcohol will be served would likely be considered the sale of alcohol, subjecting the association to the risk of violating Section 562.12, if it did so without the appropriate license.  If the provider of the alcoholic beverage is receiving any type of consideration or payment for the provision of alcohol, such provider must be properly licensed.  

However, if the association is committed to the concept of selling tickets and offering alcoholic beverages to attendees, the association may be able to obtain a permit for a time period not to exceed three days; however, there are requirements the association must meet, and there is no guarantee that it would qualify, pursuant to Section 561.422, Florida Statutes, which states: 

561.422Nonprofit civic organizations, charitable organizations, municipalities, and counties; temporary permits.—Upon the filing of an application, presentation of a local building and zoning permit, and payment of a fee of $25 per permit, the director of the division may issue a permit authorizing a bona fide nonprofit civic organization, charitable organization, municipality, or county to sell alcoholic beverages for consumption on the premises only, for a period not to exceed 3 days, subject to any state law or municipal or county ordinance regulating the time for selling such beverages. All net profits from sales of alcoholic beverages collected during the permit period by a nonprofit or civic organization must be retained by such organizations. All net profits from sales of alcoholic beverages collected during the permit period by a municipality or county must be donated to a nonprofit civic or charitable organization within 90 days after the permitted event. A municipality or county may only be issued such a temporary permit if it has attempted to solicit a qualified nonprofit civic or charitable organization to conduct such sales but has been unable to find such a qualifying organization in a reasonably practicable manner and timeframe. A nonprofit civic organization, charitable organization, municipality, or county may be issued no more than 12 permits per calendar year. Notwithstanding other provisions of the Beverage Law, a nonprofit civic organization, charitable organization, municipality, or county licensed under this section may purchase alcoholic beverages from a distributor or vendor licensed under the Beverage Law. The division may adopt rules and conduct audits to ensure compliance with this section.

One way to possibly avoid the requirement of obtaining a license is to hold the event in such a manner that the ability to consume alcohol is in no way dependent upon payment of consideration to attend the event.  For example, any table set up to receive “donations” must involve bona fide, voluntary donations (no “drink tickets” can be given for donations), and should not be located by the entrance to the event, or near the area where alcoholic beverages are being served, so as to avoid attendees making the assumption that a donation or payment is required or recommended in exchange for being served alcohol. 

The Florida Division of Alcoholic Beverages and Tobacco has, in the past, suggested that if an association holds functions on a limited periodic basis where alcohol is served (but not “sold”), does not hold itself out as a “bottle club,” is open to participation by all members of the association, and does not charge any consideration whatsoever, then it probably would not require a license. 

Pursuant to Section 561.01, Florida Statutes, a “bottle club” is defined as follows:

(15)“Bottle club” means a commercial establishment, operated for a profit, whether or not a profit is actually made, wherein patrons consume alcoholic beverages which are brought onto the premises and not sold or supplied to the patrons by the establishment, whether the patrons bring in and maintain custody of their own alcoholic beverages or surrender custody to the establishment for dispensing on the premises, and which is located in a building or other enclosed permanent structure. This definition does not apply to sporting facilities where events sanctioned by nationally recognized regulatory athletic or sports associations are held, bona fide restaurants licensed by the Division of Hotels and Restaurants of the Department of Business and Professional Regulation whose primary business is the service of full course meals, or hotels and motels licensed by the Division of Hotels and Restaurants of the Department of Business and Professional Regulation.

Importantly, if the association chooses to obtain a license to sell alcohol, chooses to allow its event attendees to bring alcoholic beverages to its events, or sponsor “BYOB” events, the Board should be aware of the potential liability resulting from the dangers of alcohol consumption by attendees, such as potential physical harm or death to attendees, third parties, or damage to property.  Florida Statutes Title XLV, Torts, Chapter 768, Negligence, Sub-Section 768.125, Liability for injury or damage resulting from intoxication, states:

A person who sells or furnishes alcoholic beverages to a person of lawful drinking age shall not thereby become liable for injury or damage caused by or resulting from the intoxication of such person, except that a person who willfully and unlawfully sells or furnishes alcoholic beverages to a person who is not of lawful drinking age or who knowingly serves a person habitually addicted to the use of any or all alcoholic beverages may become liable for injury or damage caused by or resulting from the intoxication of such minor or person. (Emphasis added.)

Therefore, the association should be mindful, even under the circumstances where the sale of alcohol is not necessarily at issue, to ensure that individuals who are drinking are of lawful drinking age, and the association should take care not to serve alcohol to any attendee whom they know is an alcoholic or is otherwise habitually addicted to drugs or is highly intoxicated.

If the association is functioning as a “social host,” (i.e., not selling the alcohol), courts have held that there is some protection from liability extended to such a host. [See Dowell v. Gracewood Fruit Company, 559 So.2d 217, Supreme Court of Florida, (holding that an employer was a “social host,” who served alcohol, and could not be held liable for injuries caused in drunk driving accident); and Bankston v. Brennan, 507 So.2d 1385, Supreme Court of Florida, (holding that statute limiting liability for seller of alcohol did not create cause of action against social host under same circumstances)]. 

However, given the lack of cases specifically on-point regarding community associations, we cannot say with certainty that an association would definitely avoid liability based on F.S. 768.125, in the event injury, death, or property damage resulted from intoxication by alcohol served on the premises of or by the association.

Importantly, if the association chooses to allow alcohol to be consumed on its premises, the Board should consult with the association’s insurance agent to make certain it is adequately covered in the event of a liability claim made against the association due to alcohol being served. 

Similarly, if the association allows a member to host an event on the premises, the association should consider requiring the member host to obtain his or her own insurance, naming the association as an additional insured, and require proof of coverage.  The association’s insurance carrier should be consulted regarding this option. Other possibilities to reduce liability include requiring a member host to sign a release/waiver, which may help insulate the association from liability, although full protection is not guaranteed.  Finally, the association may consider adopting rules and regulations governing the consumption of alcohol on its premises, such as ceasing serving intoxicated attendees, and requiring intoxicated persons to leave the premises, but not to drive a motor vehicle. 

The question posed herein risks the association being found to be engaging in the unlicensed sale of alcoholic beverages. Selling tickets or charging an admission fee to an association event at which alcoholic beverages are served, even if there is no additional charge for the alcoholic beverages, is likely considered the sale of alcohol, and would require a license.  In addition, an association should work in coordination with its insurance agent, and its attorney to insure it is adequately covered for such events. 

 

Steven H. Mezer

Board Certified Condominium and Planned Development Law Attorney, Becker
Tampa
 | bio

 

 

Carolyn C. Meadows

Condominium and Planned Development Law Attorney, Becker
Tampa
 | bio

 

29May 2019

What Should Be Contained In Board Meeting Minutes?

As an owner, have you ever requested to review your association’s board of director (“Board”) meeting minutes, only to find a mini version of War and Peace to go through? As a board member, have you ever received Board meeting minutes to review and approve and thought to yourself “Is that what the owner in the audience said? I don’t remember the other audience member saying that…..”?

What should be included in Board meeting minutes? The law only requires that Board meeting minutes must indication the vote or abstention of every Board member in attendance on each voted on item. Minutes should not be a word by word transcription of everything said by everyone at a Board meeting.

Board meeting minutes should be succinct but with enough information to determine exactly what transpired at the meeting. The minutes should reflect the date, time and location of the meeting; when it was called to order; who made a motion; who seconded the motion; and how each Board member voted on the motion. If the vote was unanimous, stating that in the minutes will suffice. You can also add introductory or explanatory phrases such as “The Board heard presentations from company A, B and C in regard to painting and waterproofing of the building. A discussion ensued”. Following would be “Bill Smith made a motion, seconded by July Jones, to approve company B for the painting and waterproofing of the building, subject to the association attorney reviewing the contract.”

Including a word for word description of the Board’s discussions, owner comments, questions, etc., in my experience, is much more frequently used against the Board and the association in litigation that in assisting the Board in any way.

Finally, please be aware that the law regarding retention of minutes was changed last year. Associations are now required to keep association minutes permanently, as opposed to the previous requirement of seven (7) years.

 

Howard J. Perl, Esq.

Shareholder, Becker
Fort Lauderdale | bio

 

28May 2019

Should Your Association Eliminate Some of Your Outdated Rules?

Many of my conversations with my association clients involve an evaluation of their rules and regulations and their available enforcement tools.  We regularly discuss how previously overlooked rules can be revived through a process known as republication so the Board can once again enforce them prospectively.  We also discuss how rules must complement rather than contradict the provisions in the recorded Declaration or Bylaws.  There are times, however, when I raise a question that some of my clients have never considered:  are there current rules that need to be updated or eliminated altogether?

Some of the following restrictions may need to be updated to be more relevant to your residents’ lifestyles these days and, an added bonus to doings so, is that it is much easier to secure voluntary membership compliance with relevant, reasonable rules.

  • Almost every set of governing documents I’ve read over the least two decades restricts the use of the unit or the home to “single family use”.  Many of these restrictions were drafted decades ago when a single family resembled the family in “Leave it to Beaver”. These days a single family unit can be comprised quite differently and your documents should be revised to reflect that reality by defining a family in more contemporary terms.  Since federal and state law is subject to further change in this area, I prefer to amend this section to ensure that the unit or home is used for residential purposes. Defining the term family is also important if you wish to impose and enforce meaningful restrictions on guest occupancy.
  • The opposite of a residential purpose is a commercial purpose which most association documents seek to prohibit. However, in the strictest sense of the words, many of your owners are already violating this provision if your documents have a broad prohibition against “commercial use”.  Many people these days telecommute which means they are earning a paycheck out of their unit by conducting their company’s business from home; this would constitute a commercial use of the property.  Others may be tutoring, counseling or advising paying customers online which would also fall within a commercial use description. The restriction against commercial usage was drafted, in many cases, by developers’ counsel many years or decades ago before the advent of the personal computer, tablet or the ubiquitous cell phone, all of which are frequently used for business purposes.  The typical prohibition on commercial use was designed to prohibit business activities which would detract from the residential character of the community or create a nuisance for neighboring owners; a typical example would be an owners operating a hair salon out of his or her unit or home which would bring both customer traffic as well as noxious odors and noise to the property.  Clearly, the use of typical digital devices rarely impacts the residential character of the community nor does it create  an actionable nuisance; attempting to enforce an archaic commercial use prohibition under those circumstances is likely impossible. Associations should revise older commercial use restrictions to define the types of commercial activity which are prohibited and which are not.
  • Once upon a time, trucks were a bugaboo in community associations; seen as something that vendors and contractors drove but certainly not residents. These vehicles were seen as eyesores which detracted from the overall aesthetic of the community. These days, many trucks are coveted, expensive vehicles which are driven by a wide cross section of the population. If your community’s documents have a blanket restriction against “trucks” or “commercial vehicles” without proper specificity, it may be time to rethink why these vehicles are being prohibited. If your parking spaces cannot accommodate these larger vehicles that is a legitimate reason for the restriction to remain in place or to impose size limitations or designate appropriate parking areas for larger vehicles but if the restriction is borne out of aesthetic concerns alone this may be a restriction that is unnecessarily narrowing your pool of eligible purchasers as well as creating dissension in your community.
  • Nothing stirs the blood as much these days in community associations as the topic of pets.  Some communities believe that they are “no pet” communities. They rely on older restrictions which impose a blanket prohibition on any and all pets but, when asked, many of these boards cannot confirm with any degree of confidence that there is not a goldfish in a bowl or a hamster running on a wheel inside one of their units.  Overly broad pet restrictions may be one of the factors fueling the proliferation of fraudulent assistance animal requests in community associations. Revising those blanket restrictions to impose moderate, reasonable boundaries, prohibiting only those pets or animals your board would be prepared to pursue legal action to remove might stave off certain unintended consequences, particularly assertions of selective enforcement without negatively impacting the quality of lifestyle in the community.
  • Rules that pertain strictly to children expose an association to potential liability. Families with children are a protected class under both Federal and Florida law and rules which single out families with children by making their experience in the community more restrictive than families without children are often seen by the courts as driving a discriminatory agenda.  Your board has to strike the right balance between protecting your residents and your common areas and not creating and enforcing rules which have a disproportionately negative impact on one set of residents. For example, rules which permit the pool to be used only during the typical hours when children are in school might be viewed by a trier of fact to be a transparent attempt to keep children out of the pool altogether. Rules which use words like “toys”, “running” and “playing” similarly expose a preconceived notion of which segment of the association’s population engages in those activities.  It is important to remember that some adults cannot accurately assess the risks associated with the use of the pool or weight equipment, are incontinent, and like to engage in horseplay in the pool so age alone is not the best barometer for drafting rules related to conduct.

The foregoing list is by no means all-inclusive.  Your community might have old rules which are no longer legally enforceable regarding satellite dishes and religious objects affixed to the door frames of condominium units or rules which impose fees triggered by the transfer of a unit which are not permitted by the applicable statute or your governing documents.

I recommend to my clients that they engage in a regular rules audit with me to confirm which rules are effective, which can be improved or updated and which are well past their expiration date.

 

Donna DiMaggio Berger

Board Certified Condominium and Planned Development Law Attorney and Shareholder, Becker
Ft. Lauderdale
 | bio

 

28May 2019

Why is a Plat so Important?

As an owner of residential property in Florida, you are aware that your community is probably subject to a unique set of “governing documents.” Typically these will include a Declaration of Covenants and Restrictions, Association Articles of Incorporation and Bylaws, and various Rules and Regulations.

Less well known is the statutory process of “platting,” which is required whenever a developer wishes to subdivide a large piece of property into smaller parcels and tracts. These smaller areas become the residential lots, streets and parks of a new residential sub-division.

Creation of statutory subdivision plats is governing by Florida Statute 177 Part 1. The statute contains specific requirements for both drafting and filing a plat. Basically a plat is a map of the subdivision of lands, which is supposed to be an exact representation of both the subdivision and other information required by the statute and any local ordinances. The next time you have an issue with boundaries in your community, the extent or purpose of an easement, or whether a portion of property is within your property, check your plat in addition to other governing documents, it has a wealth of information.

Every plat of a subdivision must be accompanied by a survey of all the boundaries of the platted lands. The survey must be performed under the supervision of a professional surveyor. Each plat must be accompanied by a title opinion of a Florida attorney, abstractor or title company which shows that all the owners of the property are executing the plat, and that all mortgages on the property have been satisfied.

The statute lists 29 specific requirements for each plat, including the size of the plat and the color ink that must be used. In working with your community plat (which is recorded in the Public Records of the County in which your community is located) the following requirements can be particularly useful:

  • A prominent “north arrow” must be drawn on every page to allow you to orient the map.
  • Sufficient data must be shown on the plat to describe the boundaries of every residential lot, block, street, easement, park and all other areas shown on the subdivision plat.
  • Properties which adjoin the subdivision must be identified by subdivision title, plat book and page. If adjoining land is unplatted, that must also be designated.
  • Both the location and width of all easements must be shown either on the plat or in the notes or legend on the plat. The specific intended use of each easement must also be clearly stated.
  • If there is an interior parcel within the community that is not part of the plat, it must be clearly labeled; “Not A Part Of This Plat”. Without such a label, all property within the boundaries of the platted subdivision are included.
  • If your community decides to have another survey of any portion of the property, it is important to remember that the original surveyor who prepares a subdivision plat is presumed to have been correct. For this reason, the new survey will only locate the original monuments, points and lines of the original survey. If for any reason there is a discrepancy between what the subdivision plat shows and what the original survey indicates, the monuments placed on the ground as part of the original survey have precedence.

 

Harry W. Carls, Esq.

Office Co-Managing Shareholder, Becker
Orlando | bio

 

06May 2019
Attorney-Client Privilege When Board Members Sue the Association

Attorney-Client Privilege When Board Members Sue the Association

Many Associations have just completed their election season and find that a person or persons newly elected to the Board are involved in a case being defended or prosecuted by the Association. Now what? Clearly, a conflict of interest exists but participation in a lawsuit against the Association is not one of the factors that makes you ineligible to sit on the Board. Therefore, the person(s) can take their seat on the Board so long as every other aspect of the election process was valid. The Board however still needs to take measures to ensure that the strategy and legal opinions obtained from counsel on behalf of the Association continue to be privileged. This can be accomplished in a few ways. One option is for the person(s) with the conflict to recuse themselves from participating in any meeting/vote regarding the lawsuit. Their fiduciary duty to the Association would be fulfilled but what if that means there is no quorum of the Board to make a decision? Also, they would have to know of the meeting in order to recuse themselves and this would tip them off that something was up? The better alternative is to have an open Board meeting for the sole purpose of creating a committee of members of the Board who do not have the conflict of interest. This meeting would be open to all members of the Board and the Association. The persons with the conflict should be allowed to vote on the issue and their fiduciary duty should dictate that they vote in favor of such a committee. During this meeting the Board should also vest all powers necessary to allow settlement or resolution through appeal in the committee. Otherwise, if the committee continually had to return to the Board for more authority, the person(s) with the conflict would be able to deduce what was going on and the creation of the committee would be for naught.

If the Association is one in which the majority of the Board makes up the person(s) with the conflict, there will not be enough disinterested Board members to create a committee which could handle the litigation. The option then is to have non-board members partake in the committee. In this instance, the Board should decide how many additional persons are needed. My recommendation would be if you have a 5 person Board with 3 persons having a conflict, that you add 3 additional non-board members to the committee. The most diplomatic way to do this would be to have an open Board meeting for the purpose of the creating the committee but advising on the notice that the Board will seek 3 volunteers to sit on the committee from the non-Board members. During the meeting, the Board would explain the purpose of the committee, the fiduciary duty to the Association and the requirement that the privileges afforded a litigation be preserved despite any friendship with the person(s) having the conflict. For obvious reasons, relatives of the persons with the conflict should not be allowed to sit on the committee. Should only 3 volunteers seek to be part of the committee, nothing else is necessary. Should however more than 3 volunteers seek to be part of the committee, the Board should vote on each one until the 3 spots have been filled. Another option would be to have the members vote on the volunteers.

Please note, if your governing documents provide another procedure for setting up a committee (such as landscaping, architectural, etc.) you may want to follow that procedure all together. Similarly, if the governing documents require that you have a litigation committee, then you need follow that procedure, always ensuring that the person(s) with the conflict do not sit on the committee. Regardless of how this committee is seated, the first thing to do is set a closed meeting with counsel. This will permit the attorney to meet the persons she will be dealing with during the litigation. Additionally, the attorney will be able to explain the duties of the committee as they pertain to the Association in terms of the suit and bring the committee up to speed on what is going on in the case. The attorney will also be able to get an understanding of what the committee wants in terms of resolution (i.e., settlement or trial). One last thing, when creating the committee, it should be clear that the committee is created solely for the purpose of the case at hand and all that goes with it (counterclaims, third party claims, etc.) and that it dissolves immediately once the case is resolved. Again, if your governing documents create a method for dissolving a committee, the Association should follow those procedures.

 

Marilyn Perez-Martinez

Attorney at Law, Becker
Miami | bio

 

06May 2019
nuisance

Defining a Nuisance in your Community

If you live in a shared ownership community, you have likely heard the term “nuisance” bandied about now and then. It is an unfortunate byproduct of living in close quarters with others that at some point, another person’s conduct may impact your enjoyment of your home.

A nuisance can be summed up as a condition, activity or situation (such as loud noises or foul odors) which interfere with another person’s use or enjoyment of property. Every set of association documents I have reviewed over the last two decades contains at least a bare bones nuisance provision.

Legally speaking there are many different types of nuisances which include:

  1. Abatable nuisance-easily removable by reasonable means.
  2. Nuisance per se (aka absolute nuisance)-an interference so severe that it would create a nuisance under any circumstances.
  3. Anticipatory nuisance-a condition which has not yet risen to the level of a nuisance but is very likely to become one.
  4. Attractive nuisance-a dangerous condition that could attract children-a typical example is an unsafe lake or other body of water.
  5. Permanent nuisance-cannot be readily abated at reasonable expense.
  6. Private nuisance-this one is the most applicable in the community association setting as it impacts a person’s enjoyment of his or her property.
  7. Public nuisance (aka common nuisance)-is an unreasonable interference with a right common to the general public.

Practically speaking, the following conditions can be considered nuisances depending on how often they occur and the level to which they rise:

  • Loud noises-radio, pets barking, screaming, etc.
  • Odors
  • Parking-blocking in neighbors’ cars, parking on others’ property, etc.
  • Failing to clean up after dogs and/or allowing dogs to run around off leash
  • Domestic violence
  • Smoking
  • Overflowing waste receptacles used by owners undertaking home renovation projects
  • Leaving holiday decorations up year-round

The foregoing list is certainly not all-inclusive. Nuisances in communities often result in long-ranging consequences which can include board members being recalled for failing to act, people moving out of the community and, in the most dire circumstances, violence erupting between neighbors.

Which activities have you seen in your community or a neighboring community which could constitute a nuisance? What has your board done to correct the problem?

If you have not looked at, let alone amended, the nuisance provision found in your original developer-written documents, it is time to do so. Why leave it up to a trier of fact to determine what is considered a nuisance in your community? Spell it out for swifter and easier enforcement.

 

Donna DiMaggio Berger

Board Certified Condominium and Planned Development Law Attorney and Shareholder, Becker
Ft. Lauderdale
 | bio

 

06May 2019
difficult people

The Dynamics of Difficult People

We all encounter difficult people in our lives. This is particularly true for property managers. In dealing with difficult people, and in order to maintain your sanity, finding an effective way of dealing with difficult people is critical.

Effectiveness in dealing with difficult people begins with understanding the dynamics of the person and situation. It is helpful to understand the difficult person by examining what type of difficult behavior are they exhibiting and what are their motives. In understanding the dynamics of the situation, you are deciding what tools and techniques you can use to assist in resolving the situation.

The first consideration is identifying the type of behavior being exhibited. This consideration focuses on two aspects of behavior: whether the person is at their core a difficult person or is being difficult due to the situation itself and how they are exhibiting their difficult behavior.  The next step that is important is to identify as best you can, the person’s motives which can be trickier than it seems.

Once you have an understanding of the dynamics of the person, you then turn to the dynamics of the situation. This is where you employ your tools and techniques that can help resolve the issue you are experiencing with the difficult person. 

The typical behaviors of difficult people generally fall into one of several categories based on common characteristics. Some of the more common categories are:

  • Bullies – people that tend toward angry outbursts, that must be right at all time, that backstab and spread rumors.
  • Malcontents – people who complain about everything, are never satisfied and are negative about everything.
  • Know it Alls – people who are pompous, condescending and generally believe (whether true or not) that they know more than you.

After identifying the behaviors associated with certain categories of difficult behavior, it is important to try and understand the motive of the person which involves asking the person questions and communicating with them. It is important for you to control the communication by making sure the communication is on your terms. Setting an appointment with the person is one of the best ways to make sure you are fully prepared to address the issue.

Motives can be obvious and easy to understand but they can also be complex. The key is to identify, through discussion, the motive of the person. Asking the following questions can help expose motive and help unpeel any complex motivational issues:

  • What is going on that led to X?
  • What would getting X do for you and why is that important?
  • If you are not able to get X, what else might satisfy you?

Identifying behavior categories and motives allows you to more effectively disarm the difficult person and to negotiate with them.  The following are a few strategies that can be helpful in disarming a difficult person based on the type of behavior the person is exhibiting:

  • Bullies – stand up to the bully and confront the person on your terms in a professional but direct manner.
  • Malcontents – refuse to feed into their complaints or allow yourself to be a sounding board. Instead, steer the conversation toward the person’s desired outcome and encourage the person to find solutions.
  • Know it Alls – counter the person’s understanding with information but try to present the information in a way that allows the person to save face.

Once you have a plan for disarming the difficult person, the task becomes resolving the issue. Active listening is essential to understanding the issues, identifying areas of agreement and disagreement and preparing yourself for your response. Asking questions and making statements that make the person defensive should be avoided as should statements that minimize the person’s feelings.

After allowing the difficult person an opportunity to express themselves and their objective, you can begin the process of negotiating with the person in order to resolve the conflict.   The following techniques can help in the negotiation process:

  • Focus on the future. Remind the difficult person that the past cannot be changed but they can be part of coming up with a solution for how things should be in the future
  • Use silence. Use silence during points of unreasonableness and after making offers in order to encourage the other person to reflect on what was said.
  • Use doubt. Use a question like “is it possible?”
  • Use the facts if the difficult person was not aware of all relevant facts.
  • Role reversal. Help the difficult person see the situation from your point of view.
  • Point out possible inconsistencies by gentling saying something like “I am confused, I thought I understood you to say X.”
  • Point out constraints.

Once you feel that a resolution has been reached, it is important to make sure that you restate the resolution so that you both are clear on what will happen next.

 

Marielle E. Westerman

Marielle E. Westerman

Construction Law Attorney, Becker
Tampa | bio

 

29Mar 2019

Are E-Mails Official Records?

Whether you live in a condominium, cooperative or homeowner association, the Statue governing your community defines the term “official records”. In defining official records, each Statue has a catch-all provision.

All other written records of the association not specifically included in the foregoing which are related to the operation of the Association.

Sections 718.111(12), 719.104(2), and 720.303(4), Florida Statues.

Questions abound as to whether e-mails are official records. The Department of Business and Professional Regulation (“Division”) has ruled that e-mails to an association can be considered official records and are therefore subject to inspection and copying by owners or their representatives. The question is, what are e-mails “to an association?” Are personal e-mails between board members official records? What about an owner’s e-mail to a board member’s email address and the board member’s response to that owner – is that considered an official record subject to another owner’s inspection and copying?

Division rulings have held that e-mails to an individual director or to all directors as a group, addressed only to their personal computers are not written communication to the association and therefore not considered an official record. This is because there is no obligation for a director to turn a personal computer with any regularity, or to open and read e-mails before deleted them. Irzarry v. Laguna Point Condominium Association, Inc., Arbitration case No. 08-05-2791 (April 10, 2009/Final Order). This point was further clarified in the arbitration case of Humphrey v. Carriage Park Condominium Association, Inc., Case NO. 08-04-0230 (March 30, 2009/Final Order/Campbell), where the arbitrator stated that “any e-mails received by, stored upon, or otherwise contained upon or within the personal computer devises (e.g., computers, laptops, cell phones, tablets, etc.) of Directors shall be considered the personal property of the Director upon whose devise said e-mail exists.” I other words, the e-mail does not belong to the association.

However, arbitrator in Humphrey went on to state “[t]he conclusion may be different if the association owns a computer on which management conducts business including e-mails (analogous to government public records); or if e-mails are printed up and passed around for discussion at a board meeting.” In other words, e-mails to an association’s e-mail address, the (“@codename.com”) are considered official records.

It is important to have a clear understanding of and a policy in place related to e-mail to assure that those e-mails that are official records are properly kept and those e-mails that are not official records are properly deleted. There are also exceptions for things such as communications that relate to litigation, which must be considered when creating and implementing an e-mail policy. It is therefore strongly recommended that all associations involve their attorney when formulating their e-mail retention policy.

 

Marilyn Perez-Martinez

Attorney at Law, Becker
Miami | bio

 

29Mar 2019

Estoppel Certificates

A Requirement of Condominiums, Cooperatives, and Homeowner Associations

Some associations are not complying with the new laws on Estoppel Certificates which is required of condominiums, cooperatives, and homeowners associations. Prior to July 1, 2017, the association only had to provide the prospective purchaser with information about the monies owed to the association attributable to the unit being purchased. Now, the association must provide a certificate with a considerable amount of additional information as described below. If the information is prepared incorrectly the association may be estopped (barred or precluded) from alter going back to that individual for the funds or violations that were omitted from the certificate. My recommendation is that the association have their attorney prepare the initial certificate and provide that certificate to their manager or management company as some of the information requires a review and analysis of the association’s governing documents.

There is a long list of information which is required to be in the estoppel certificate found in Sections 718.116 (Condo), 719.108 (coop), 720.30851 (HOA), Florida Statues which includes (by way of example only and not as a complete list):

  • parking or space number, as reflected in the books and records of the association;
  • attorney’s name and contact information if the account is delinquent and has been turned over to an attorney for collection;
  • an itemized list of all assessments, special assessments, and other monies owed;
  • an itemized list of any additional assessments, special assessments, and other monies that are scheduled to become due for each day after the date of issuance for the effective period of the estoppel certificate is provided.

The statue then requires you to provide:

  • whether there are any open violations of rules or regulations noticed to the unit owner in the association official records;
  • whether the rules and regulations of the association applicable to the unit require approval by the board of directors of the association for the transfer of the unit and if so, whether the board has approved the transfer of the unit;
  • whether there is a right of first refusal provided to the members or the association, and if there is if the members of the association have exercised that right of first refusal; In addition, the association is also required to provide a list of, and contact information for, all other associations of which the unit is a member, provide contact information for all insurance policies maintained by the association, and provide the signature of an officer or authorized agent of the association.

For some associations, your manager has handled this certificate when it was just a matter of filling in the amounts owed, because they took care of the accounting for the association. However, reviewing and analyzing association documents to correctly answer the questions on rights of first refusal and other legal issues should be handled by your association attorney and then provided to management for future use thereafter. Further, if the management contract does not provide for charging for estoppel certificates, the Board will need to approve a resolution in order to do so.

 

Steven H. Mezer

Board Certified Condominium and Planned Development Law Attorney, Becker
Tampa
 | bio

 

29Mar 2019

Communication With Your Attorney

Most attorneys are adept and accustomed to using a variety of forms of communication with their clients. Most attorneys will also charge for communications with their clients, so clients should consider what is best, not only in the context of cost, but also what is best for providing and receiving legal advice. As an attorney representing community associations, one of the most satisfying aspects of that practice is being able to efficiently answer questions and providing legal guidance to my clients. However, I know that certain methods of communication work better for some clients. If you prefer communication by mail, e-mail, facetime, text, or in person, make your preference known to your attorney.

If you are a community association manager, I can offer you the following seven (7) observations to assist in effective communication with counsel:

  1. Designated Point of Contact. The Association should designate one person to communicate with the attorney, while providing copies of that communication to all board members in a confidential setting. If we assume that the typical board of directors has five members, the association does not want to pay for five separate communications with the attorney regarding the same subject matter, plus a communication between the community association manager and the attorney. The attorney does not need to receive six almost identical communications regarding the same issue. The community association manager typically has good communication skills and can succinctly state the legal issue and related questions, therefore, he or she is often the best choice for both the association and the attorney. Sometimes, one or more board members wants to assume this role. The association is the client, therefore, this is their choice to make.
  2. Ask Specific Questions. The attorney’s response and legal advice are responsive to the question presented. Therefore, a full statement of the relevant facts and a clear statement of the question will provide the most valuable and legally accurate response to the association’s question. Providing an incomplete (intentionally or unintentionally) or inaccurate set of facts may result in the attorney providing an incorrect or even useless response answer to the association’s actual question. This is not the time for secrets, selective omissions or hiding facts from your attorney. Even small details may have legal significance to your issue and to your attorney. Most attorneys will respond to the question as presented and will not make an assumption that the association actually had a different question to be answered. Asking the correct question should yield the most accurate answer, not just the answer that was wanted. Therefore, the statement of the facts and the composition of the question should be given the appropriate attention to detail.
  3. Confidentiality. Communications with counsel regarding legal issues are confidential and privileged. Directors should be reminded of that fact on a regular basis. Many attorneys will mark all such communications “Attorney/Client Confidential” and you should do the same. Attorney/client confidentiality may be waived by sharing copies of the communications with any person who is not on the board of directors, therefore extreme caution is required when handling communications with counsel. Please do not share legal opinions with other managers or board members from another community, unless the original recipient gave you written consent to do so.
  4. Official Records. Communications with counsel should be segregated in a file clearly marked “Attorney/Client Confidential” to avoid the inadvertent disclosure of confidential communications. These documents containing legal advice of counsel or attorney’s work product are not available for inspection and copying by unit/lot owners.
  5. Costs. While we recognize that no one likes to pay attorney’s fees, a short consultation with counsel can often save the association significant funds when the association implements the contemplated action. For example, having contracts reviewed by counsel is a highly recommended defensive action by a board of directors. It is much easier to decide to not enter into a contract due to legally objectionable terms than it is to get the Association out of that same contract after it has been entered into without the advice of counsel. It is usually much less expensive to add legally desirable language to a contract than to later face the consequences of the omission. The adage that “contracts are made to be broken” is neither factually nor legally correct. A court will not save your association from a bad contract, if it is an otherwise lawful contract. Contracts are easily created by conduct, even in the absence of a signature.
  6. Communicate, Communicate, Communicate. Your attorney is not a mind reader. It is impossible for anyone to interpret silence. Regular, clear and accurate communication with your attorney can provide you with support and assurance that the board of directors and that the association are operating in compliance with its governing documents and in compliance with Florida law. While it is clear that some legal fees may be a cost of the association “doing business” it is also a form of insurance that is often far less expensive than not communicating with your counsel. Addressing issues and decisions in real time is far less expensive than the litigation that can result from a wrong decision. Communicate early and often.
  7. Document the Response. It is basic that a community association should not rely on the manager for legal advice, but that is what often occurs when the manager is asked to relay or interpret a conversation that she or he has had with association counsel. Request a written response, whether it is a confirming e-mail or a formal written legal opinion each time that you seek legal advice. If you want citations to a statute to cases and references to the governing documents, specify your expectations so that there is no question as to the adequacy of the response. Although most legal advice is not a simple “yes” or “no” it need not be a confusing treatise. There are times when you should not get the response in writing, but there should be a reason for not putting the response in writing when that occurs. You have a right to clear understandable response from the attorney.

Finally, communication increases confidence and comfort. There is no (legal) question that should not be asked, if it is a question that you or a member of the board of directors may have. Keep the lines of communication open with your attorney.

 

Steven H. Mezer

Board Certified Condominium and Planned Development Law Attorney, Becker
Tampa
 | bio

 

01Mar 2019
Can Homeowners’ Association Board Restrict Fences?

Can Homeowners’ Association Board Restrict Fences?

 

Q

My homeowners’ association board of directors sent out a new set of guidelines that they intend to adopt. There are a number of provisions that limit what an owner may do with their private property. For example, it states that while fences are permitted, they may only be privacy fences constructed of particular materials, and chain-link fences are prohibited. Also, there is a list of authorized colors that owners can paint their houses. While I understand that the homeowners’ association is there to protect every owner’s property value, these rules seem to be over the top. Can the association tell me what type of fence I can put up or what color I can paint my house? (R.D. via e-mail)

A

Maybe. The first issue to always consider is what the community’s governing documents say concerning the board of director’s authority to adopt such restrictions. Declarations of covenants routinely contain requirements that alterations that are visible from the exterior of the lot be approved by either the board of directors or an architectural review committee. Some declarations also contain specific requirements or prohibitions concerning alterations, such as regulations of or prohibitions against fences. Some are more general.

If the declaration grants the board of directors or the architectural review committee the authority to approve certain exterior alterations, but do not specifically identify what types of alterations would be approved, or what types of materials may be used, the association must have some kind of objective guidelines in order to be able to uniformly apply the restriction. Section 720.3035 of the Florida Homeowners’ Association Act also discusses required guidelines concerning the location, size, type, or appearance of alterations which are to be approved by the association.

Assuming the board has the appropriate authority in the governing documents to adopt architectural guidelines or other rules affecting the use of the parcel, and further assuming the guidelines are properly adopted, such guidelines would generally be enforceable. Typically, 14 days’ notice must be given to each parcel owner prior to the board’s adoption. Specifying colors that an owner may paint their home, or the type of material they may use for installing a fence are relatively common.


 

Q

I live in a condominium and have an interest in running in the next election to be on the board. What is the requirement to obtain “certification” required by the state? (V.R. via e-mail)

A

The Florida Condominium Act states that within 90 days after being elected or appointed to the board, each newly elected or appointed director shall certify in writing to the secretary of the association that he or she has read the association’s declaration of condominium, articles of incorporation, bylaws, and policies.  The written certification must also confirm that the new director will work to uphold such documents and policies to the best of his or her ability; and that he or she will faithfully discharge his or her fiduciary responsibility to the association’s members.

Alternatively, the newly elected or appointed director may submit a certification of satisfactory completion of a board certification course administered by an education provider approved by the Division of Florida Condominiums, Timeshares, and Mobile Homes of the Department of Business and Professional Regulation that has been taken within one year before, or 90 days after, being elected or appointed.  The written certification or the educational certificate is valid for as long as the board member continuously serves on the board.  The association must maintain the certificates for five years after a director’s election or for the duration of the director’s uninterrupted tenure on the board, whichever is longer.

If a director fails to timely file the written certification or educational certificate, the director is suspended from service on the board until he or she complies. The board may temporarily fill the vacancy during the period of suspension.

Both the Florida Cooperative Act and the Florida Homeowners’ Association Act contain similar director certification requirements.

 

Joseph E. Adams

Office Managing Shareholder, Becker
Fort Myers | bio

 

01Mar 2019
HOA Rules to be Recorded

Do My HOA’s Rules Have to be Recorded?

For many years, homeowners’ associations (HOA) were only required to record their rules and regulations if their governing documents required that they be recorded. As of July 1, 2018, that is no longer the case.

Section 720.306 was amended by the Legislature to address the manner in which amendments are carried. The amendment adopts much of the same procedure of underlining and strikethroughs used in condominium covenant amendments. If the amendment is extensive such that underlining and strikethroughs would lead to confusion then the amendment must include the following notation “Substantial rewording. See governing documents for current text.” and underlining and strikethroughs are not needed. §720.306(1)(e), Fla. Stats.

You may however wonder what this requirement has to do with an HOA’s rules and regulations. The change to Section 720.306(1)(e) requires the use of underlining and strikethroughs (with the exception noted above) and recording for all amendments to the “governing documents.” A term defined by Section 720.301(8) to include the declaration, articles of incorporation, bylaws and the Association’s “rules and regulations adopted under the authority of the recorded declaration, articles of incorporation, or bylaws and all adopted amendments thereto.” §720.301(8)(c), Fla. Stats. (emphasis added). This means that in order for rules to be amended in the HOA setting, they must be typed a certain way and the amendment itself will not take effect until “recorded in the public records of the county in which the community is located.” §720.306(1)(e), Fla. Stats.

 

Marilyn Perez-Martinez

Attorney at Law, Becker
Miami | bio

 

01Mar 2019
Can My Association Board Pass a Rule Regarding That?

Can My Association Board Pass a Rule Regarding That?

You attend your association’s monthly board of directors meeting because you notice an item on the agenda that piques your interest. The board of directors is scheduled to consider and pass a rule regarding _________ (you fill in the blank).  You ask yourself “Can they do that?”  The answer, as it is many times, is “it depends”.

The first place to look is the association’s governing documents.  The governing documents (declaration, articles of incorporation or bylaws) must give the board of directors the authority to promulgate rules and regulations.  If this authority is not contained anywhere in the association’s governing documents, then the board does not have the authority to promulgate or amend rules and regulations.

If the authority does exist in the governing documents, then the board has the authority to promulgate reasonable rules and regulations.  Again, you must look to the governing documents to see if such rules must also be approved by the membership.  While not common, some association documents do require membership approval, so be sure to check your documents for such a requirement.

Assuming that the board can pass reasonable rules without membership approval, how does that work?  There are essentially two categories of cases in which an association attempts to enforce rules of restrictive uses. The first category is dealing with the validity of restrictions found in the declaration. The second category involves the validity of rules promulgated by the board of directors.

Restrictions found in a declaration are clothed with a very strong presumption of validity which arises from the fact that each individual unit owner purchases his unit knowing of and accepting the restrictions to be imposed. White Egret Condominium, Inc. v. Franklin, 379 So.2d 346 (Fla. 1979).   As such, a use restriction in a declaration may have a certain degree of unreasonableness to it, and yet withstand attack in the courts.

However, where a rule is created by the board of directors, such rule is subject to a test of reasonableness.   If a rule is reasonable, the association can adopt it, if not, it cannot.  Hidden Harbor Estates, Inc. v. Norman, 309 So.2d 179 (Fla. 4th DCA 1975). What this means is that if a rule is challenged, the association must be able to show the rule is reasonable.  The challenging owner is not required to show the rule is unreasonable; the burden is on the association to show that the rule is reasonable. 

In addition to being reasonable, there are other limitations on board enacted rules.  A board enacted rule cannot be in contradiction with any other provision of an association’s declaration, articles of incorporation or bylaws.  Any conflict between a provision in an association’s rules and regulations and an association’s declaration, articles of incorporation or bylaws will be resolved against the rule and in favor of the provision in the declaration, articles of incorporation or bylaws.

Furthermore, a rule cannot amend a provision of the declaration.  Unfortunately, many associations attempt to do just that by passing rules that, if challenged, would not be upheld by the courts as a valid rule.  For example, if your governing documents provide that owners who want to sell or lease their unit must provide a copy of the sales contract or lease to the association, and nothing more, a rule that provides sales and leases must be approved by the association would not be upheld by a court if challenged. 

Similarly, if your governing documents do not include restrictions limiting leases to no less than 3 months, or that leases must be at least one year in length, the board cannot pass a rule to that effect.  Such restrictions must be in the declaration, unless, arguably, the declaration specifically grants the board the authority to pass additional rules and regulations regarding leasing.

Also, you should be aware that there is now a difference regarding rules and regulations in what the defined term “governing documents” means in regard to a homeowners association as opposed to a condominium association.  Chapter 720, Florida Statutes (the “Homeowners Association Act”) was amended to include an association’s rules and regulations in the definition of an association’s “governing documents”.  See Section 720.301(8), Florida Statutes.  Chapter 718, Florida Statutes, (the “Condominium Act”) does not contain a similar provision or definition.  So while the defined term “governing documents” includes rules and regulations in a homeowners association, the same defined term does not include rules and regulations in a condominium association.

Finally, whenever an association is considering amending or addition rules and regulations, it should always do so in consultation with its attorney.  The attorney should review the rule to make sure it is not in conflict with any provisions of the declaration, articles of incorporation or bylaws; make sure there are no potential housing law issues or other legal issues in regard to the proposed rule and that the proper meeting notice requirement for the board to consider and pass the rule are followed.  In condominium, homeowner and cooperative associations, written notice of any meeting at which amendments to rules regarding unit (or parcel) use will be considered must be mailed, delivered, or electronically transmitted (to those who have consented in writing to receive official association notices electronically) to owners and posted conspicuously on the property not less than 14 days before the board meeting.

 

Howard J. Perl, Esq.

Shareholder, Becker
Fort Lauderdale | bio

 

23Jan 2019
water leak

The Subrogation Situation

With increasing frequency, insurance companies that provide unit owner insurance are suing community associations to recover payments made to the unit owner that are related to water leaks in the unit. The problem with these lawsuits is two-fold. First, the insurance companies are waiting years to bring them, although still within the statute of limitations for the lawsuit, but nonetheless to the detriment of the community association’s defense of the case as records and memories fade overtime. Secondly, the cases are many times brought in small claims court as a result of the insurance company seeking at most $5,000.00 in “reimbursement” from the community association. The issue with defending a small claims court case is that the cost of defending the lawsuit can be more than the amount the insurance company is seeking which puts pressure on the community association to simply settle. The basis of the insurance company’s lawsuit against the community association is negligence; the insurance company claims that the association had a duty to take some action, failed to take the action and such a failure led to loss that resulted in the insurance payment to the unit owner.

What can be done to limit a community association’s exposure to such lawsuits? First, the community association should consult with its attorney to determine if an amendment to the declaration for the association should be adopted related to subrogation. Next, community associations need to promptly respond to complaints related to leaks and properly document repair work in a detailed manner so that the location and extent of work is easily understood. The documentation related to repair work should be kept for 7 years and be readily accessible. Community associations should perform routine maintenance and inspections of property that the association is required to maintain in order to identify in advance of a water leak areas of needed maintenance. Lastly, anytime there is a water leak or other casualty to unit, the association must thoroughly document, in writing, what happened to cause the leak, what was done in response to the leak and all communications between the association, the unit owner and the unit owner’s insurance company and adjuster. Such documentation should be shared with the community association’s attorney and kept in the association’s official records.

 

Marielle E. Westerman

Marielle E. Westerman

Construction Law Attorney, Becker
Tampa | bio

 

23Jan 2019
electronic voting

Does Electronic Voting For Community Associations Really Work? How Do You Implement?

Q: I heard that the law in Florida recently changed and that owners in community associations can now vote electronically. What is required to implement electronic voting in my community?  And does it really work? A.A. via e-mail

A: You heard correctly. During the 2015 Legislative Session, a new law was passed authorizing condominiums, cooperatives and homeowners associations to conduct elections and other owner votes through an internet-based online voting system. In the spring of 2016, the Department of Business and Professional Regulation adopted administrative regulations to implement the new electronic voting statutes for community associations.

The first step is for the Board to decide if they wish to offer electronic voting to their members by adopting a resolution. The resolution will establish the procedures and deadlines for owners to consent to electronic voting and, thereafter, opt out of electronic voting (if desired). Written notice of the board meeting at which the resolution will be considered must be mailed, delivered, or electronically transmitted (where an owner has consented in writing to receive official notices by e-mail) to the owners, and conspicuously posted at least fourteen (14) days before the meeting.

The next step is for the Board to select an operating software system to utilize and administer the electronic votes. The administrative regulations require the use of sophisticated operating software which will enable the electronic voting website provider to accurately tally votes and be able to defend the result. The operating software also needs to be able to preserve the secrecy of owner votes in the election of directors. There are several different vendors who offer operating software to community associations for a fee. Most of the vendors utilize a similar electronic voting format: (1) the association provides a roster of eligible voters, (2) a unique PIN number is sent to the e-mail address provided by the owner, (3) owners are asked to create a user name and password to log on to the website; and (4) the owner votes electronically.

The Board does not have the right to force owners to vote electronically. Owners have the option to decide if they wish to vote electronically. Owners who do not consent to vote electronically must still be permitted to vote the “old fashioned” way via paper. At the membership meeting the electronic votes and the paper votes are tabulated together and the voting results announced.

Electronic voting does work. Several of my association clients have successfully used electronic voting at their meetings and elections. I predict that electronic voting will become commonplace very soon. The days of shuffling through stacks of paper at association annual meetings may soon be over.

 

David G. MullerDavid G. Muller

Board Certified Condominium and Planned Development Law Attorney, Becker
Naples | bio

 

 

23Jan 2019
Material Alterations to lobby

Material Alterations

We receive numerous questions from our condominium association clients regarding proposed “material alterations” to the common elements. In general, the board is empowered with authority to maintain the common elements. However, certain changes to the common elements may be considered a “material alteration” which may require unit owner approval. Florida courts have held that a material alteration is one which “palpably or perceptively varies or changes the form, shape, elements or specifications” of the common elements “in such a manner as to appreciably effect or influence its function, use or appearance.” Sterling Village Condominium, Inc. v. Breitenbach, 251 So.2d 685 (Fla. 4th DCA 1971). In many instances the material alteration questions we receive pertain to redecorating common elements, such as a lobby area. If the change in the new décor theme of the lobby is considered a material alteration (as opposed to routine maintenance/replacement), approval of the unit owners may be required. Section 718.113(2)(a), Florida Statutes, requires 75% of the total voting interests to approve a material alteration unless the declaration provides for an alternative approval method/standard. Many condominium association declarations contain a provision which specifically establishes a unit owner approval standard for material alterations to the common elements. Other governing documents specifically carve out exceptions whereby the board of directors alone can approve certain material alterations without the need to obtain unit owner approval. For example, many governing documents will grant the board discretion to approve a material alteration if the cost of said alteration is below a specific dollar amount. This area of condominium law is complex and there are additional considerations which may impact the ultimate analysis (e.g. what if the alteration is required to comply with code, etc.), which are beyond the scope of this article.

 

David G. Muller

David G. Muller

Board Certified Condominium and Planned Development Law Attorney, Becker
Naples | bio

 

 

31Dec 2018
rental-agreement

Are HOA Owners “Grandfathered” In from New Rental Restrictions?

The Florida Condominium Act states that an amendment prohibiting unit owners from renting their units or altering the duration of the rental term or specifying or limiting the number of times unit owners are entitled to rent their units during a specified period applies only to unit owners who consent to the amendment and unit owners who acquire title to their unit after the effective date of the amendment.

There is no similar provision contained within the Florida Homeowners’ Association Act. The amendment to the condominium statute was the legislature’s reaction to a Florida Supreme Court case which held that because condominiums are a “creature of statute”, unit owners take title to units knowing that most of the legal rights under their condominium documents can be changed by amendment. Homeowners’ associations are subject to slightly different legal principles including how courts review amendments to covenants and restrictions. I am of the opinion that there are generally no “grandfathered rights” in the HOA context, but the language of individual governing documents plays a large role in the analysis of this issue. This means an HOA should always have an attorney review the governing documents for that community if rental restrictions are being considered.

David G. Muller

David G. Muller

Board Certified Condominium and Planned Development Law Attorney, Becker
Naples | bio

 

 

31Dec 2018
construction-deposit

Construction Deposits, A New Reality to be Managed

For many condominium and homeowners’ associations, 2019 will be a year to consider long overdue construction projects.  The 2018 legislature made it clear to condominium associations that if the project resulted in a modification of the common elements, a prior vote of approval by the membership is required.  Also, some projects will require bids per statute, while most associations will attempt to seek bids as a matter of good business practice.  Unfortunately, the construction industry is dealing with a labor shortage that may result in fewer contractors willing to bid on your project and many contractors seeking an “up front” payment in the form of a “deposit”.

Anyone seeking construction services in today’s expansionary period knows well that contractors are in high demand, and are taking liberties with respect to what they can require as a condition to entering into a construction contract.  There is no doubt that contractors have taken advantage of the lack of supply and the high demands for construction work.  In that regard, the demand for payment of initial deposits has resurfaced as a reoccurring theme.

The last time the construction industry experienced a boom, contractors were asking for advance payments for everything from materials to excessive and increasing labor costs.  Associations, often times, plagued with little options, have succumb to the contractors’ demands for deposits. Although, deposits, that are often well planned and based on logical procedural requirements, they can be minimized as a risk to the association, deposits are still nonetheless susceptible to difficulties.

In the context of a condominium or homeowner association, the issues with deposits are no different.  As practitioners who represent such entities, we have seen a significant uptick in the demand for deposits.  Often times, the deposits are substantial demands, seeking upwards of prepayment of 20% of the contract sum.  When contracts are in the hundreds of thousands of dollars, this could mean significant upfront cash that is given to a contractor with little to no protections often being provided in exchange.

Such unprotected at risk spending can lead to difficulties.  Often times, it is difficult for an association to know whether or not a contractor is financially solvent.  Even in the most expansive and lucrative economies, there are still contractors who have managed to fail in their ability to control the purse, and often fall prey to needing cash from one project to pay another.  Quite often, associations negotiating with such contractors have no idea of the financial straits of the contractor, and are prone to agree to such deposits without appreciating the risk.  Unfortunately, once funding for a deposit is provided to an insolvent contractor, there is typically little recourse or means of recovering those funds from the insolvent contractor.  Unless the association implements certain guidelines protecting such deposits, the associations can often find themselves having to pay twice for such work.

The payment of advance deposits also place havoc with associations’ obligations to make proper payments under the Florida Construction Lien Law.  Although the Lien Law does not specifically address the issue of deposits, the Lien Law does impose certain obligations on associations to assure payment to those subcontractors who may have performed work and improvements on the associations’ property, under a general contractor.  In those cases, where a subcontractor issues its Notice to Owner, the contractor has obligations to assure payment is made to the subcontractor while making payments to its general contractor.  In the case of a deposit, the association has no idea who the subcontractors may be who are looking toward the contractor and the associations’ payments for funding.  When deposits are issued preliminarily on a project, the association has no idea which subcontractors will be performing the work, and how to protect those funds from not being absconded from the subcontractors.  Hence, there may be certain circumstances where the issuance of a deposit violates the association’s obligation to see that the subcontractors are paid, and may open the door to the association having to pay twice for the same work.

Often times, associations need to use the power of the purse to control the contractor and to bring about compliance with the construction contract.  However, in situations where a substantial deposit is issued, the association’s leverage is eroded by the amount that it pays over and above the value of work in place.  As a result, a deposit typically represents an initial overpayment to the contractor.  As more and more cash is provided to the contractor, the contractor gains leverage over the association.  This is a situation an association must avoid, as the association’s control over the purse is the primary power an association has over the contractor.  Therefore, a substantial deposit at the beginning of the project could essentially prevent an association from having the leverage needed to bring about compliance by the contractor at the end of the project.

The foregoing does not mean that deposits are completely out of the question.  Deposits can be managed, as long as the use of those deposits are memorialized in the parties’ contract.  Often times, construction attorneys add provisions that specifically address how the deposits will be used and accounted for.  In such cases, the deposits could be earmarked to be used strictly for the payment of advance material purchases.  In those circumstances, the contract can dictate specific procedures on how the contractor contracts for the materials, while the association makes direct payment to the supplier.  This type of arrangement alleviates any concerns of liens or suppliers not being paid, and provides the association assurances that once the payment are paid, the materials are owned by the association and therefore liens are of no further concern.  The issue becomes more complicated when the contractor seeks a deposit for advance manpower costs or similar expenses.  Since manpower is a much more nebulous issue for the association to oversee, it is advisable that the association does not agree to such advance payments, as there are few means of effectively controlling same.

Notwithstanding the above, there are means other than deposits to relieve the contractor’s concern of being the bank.  Mobilization line items in a schedule of values in the contract can provide the interim relief that contractors seek.  In some cases, construction contracts allow a more frequent submission of applications for payment at the early stages of the project, so as to compensate the contractor for upfront costs.  Such costs can be compiled in a mobilization line item.  Notwithstanding, there should be some limits as to the amounts that will be paid for mobilization, and they should be somewhat aligned with the expenditure of the materials or labor that is being protected.

In conclusion, deposits may be a part of our present reality when dealing with construction contracts.  Although, deposits are fraught with risk, there are means to control that risk.  An association that is confronted with a demand for a sizable deposit, should contact its construction attorney for advice so that the procedures to protect the association are incorporated in the association’s contract with the contractor.  Absent taking such safeguards, an association could expose itself to significant risk, some of which may cause the association to pay twice for the same work, and other events that may cause a complete forfeiture of deposits if provided to insolvent contractors.

 

Conrad J. Lazo

Conrad J. Lazo

Board Certified Construction Law Attorney, Becker
Tampa
 | bio

 

 

 

 

Steven H. Mezer

Board Certified Condominium and Planned Development Law Attorney, Becker
Tampa
 | bio

 

 

31Dec 2018
emotional-support-animal

Emotional Support Animal

The following is a paraphrased example of the one question that we are asked most frequently:

“I live in a condominium, which has had a “no pet amendment” since it was built.  A person recently purchased a unit and has been seen with a dog that barks all the time.  The owner signed all the disclosure forms that stated “no pets,” but later gave the board a note from a nurse practitioner stating that the dog is an emotional support animal.  What can we do?”

The Federal Fair Housing Act (42 U.S.C. §§3601-3619) and the regulations promulgated thereunder require ‘housing providers,’ – including entities such as condominium or homeowners associations to make reasonable accommodations to disabled persons in rules, policies, practices or services when such accommodations may be necessary to afford a person with a disability the equal opportunities to use and enjoy a dwelling.  Florida’s version of the Fair Housing Act, Section 760.23, Florida Statutes, similarly requires accommodations for disabled persons.  Decisions of federal and state courts in interpreting the Federal Fair Housing Law and Florida’s Fair Housing laws have held that in certain instances housing providers, including a condominium or homeowners association, must accommodate those with a legitimate physical or emotional disability requiring the support or assistance of an animal.

Notwithstanding, simply providing a note from a nurse practitioner or a letter and certificate purchased from the Internet, stating that the dog is an emotional support animal does not provide the governing body of a condominium or a homeowners association the reasonable opportunity to establish that the resident suffers from a disability defined by law; and further, that the applicant requires the physical assistance or emotional support of a dog to reasonably accommodate his or her disability.  Thus, in this instance, it likely would not be unreasonable for the association to carefully request additional information to allow its governing body to evaluate the reasonableness of the request.  The courts and agencies have required that the housing provider open a “dialogue” to allow for a meaningful review of the request.

For example, the association may reasonably request that the resident provide a statement from a medical professional explaining that the requesting party: (a) has a physical or mental impairment (b) explains which major life activities are substantially impaired by the disability or handicap; (c) a description of the accommodation requested; (d) and an explanation of how the accommodation alleviates or mitigates the disability or handicap. If, upon receipt of such additional information, the association concludes that the resident is disabled under the law and that the emotional support of the identified animal is reasonably necessary to accommodate the disability, then approval of the accommodation is required by law.

Where an accommodation is required by law, the resident is still required to maintain the animal in accordance with existing rules and regulations; which among other requirements often include, that residents permit no activity that creates a nuisance or annoyance to other residents.  Such rules require to take all actions necessary to prevent the animal from making a noise that may unreasonably annoy or disturb the peace of neighboring residents.

Keep in mind that where an accommodation is required to be made by law, the animal is not considered a “pet.” Rather, it is an animal that the resident is entitled to have per the law for the physical assistance or emotional support for the disability that the resident is afflicted with. Therefore, the governing board of a community association should always seek the advice of legal counsel before denying the request of a resident for an emotional support animal.  The association’s legal counsel is best suited to advise and assist the governing board with the implementation of appropriate procedures should the board receive such a request.

 

Steven H. Mezer

Board Certified Condominium and Planned Development Law Attorney, Becker
Tampa
 | bio

 

 

 

JoAnn Nesta Burnett, Esq. JoAnn Nesta Burnett, Esq.

 

 

28Nov 2018
Telecommunication Contract Issues

Telecommunication Contract Issues

Other than possibly insurance, the largest single expense for many associations is the cost of bulk telecommunication service. Further, bulk telecommunication service agreements often have multi-year terms, some even going as long as ten years. Therefore, whether your association has a bulk telecommunications agreement or is looking at entering into a bulk telecommunications agreement, there are a number of legal and practical issues that the association should consider in moving forward with such a decision.

With regard to bulk agreements for telecommunication services, both the Florida Condominium Act and Homeowners’ Association Act provide that the costs associated with providing bulk telecommunication services are proper common expenses of the association. Further, both contemplate the authority of an association to provide a range of communication services on a bulk basis. The most common services provided on a bulk basis are television service, bulk internet service and telephone service. Additionally, associations often provide multiple services on a bulk basis from the same provider (such as receiving both cable television and internet service from the same service provider on a bulk basis.)

Further, both statutes also contemplate that the cost for services pursuant to the bulk agreement be allocated on a per unit basis rather than on a percentage basis if there is other than equal sharing of common expenses contemplated in the documents. If your association allocates expenses on something other than an equal per unit basis, you would want to review the allocation of the expenses of the bulk services agreement carefully.

While associations generally have the legal authority to enter into agreements to provide bulk telecommunication services to the owners, such agreements should be carefully negotiated by the association. Issues the association should address in the agreement include but are not limited to:

  • How the distribution system is defined and who will own the wiring once the agreement is concluded.
  • What type of work will the provider have to do within the community to provide the service, whether excavation or other construction will be necessary and what protections are in place for the association and its members?
  • If the provider is using subcontractors to install portions of the distribution system that the association and the owners are protected from any liens recorded by suppliers or subcontractors.
  • What type of insurance does the provider carry and whether that insurance protects the association?
  • What is the term of the agreement, how term is determined and is the termination date of the agreement apparent on the face of the agreement?
  • What are the service standards that the provider must meet and how is the association protected if the provider fails to meet those standards?
  • What type of easement must the association give the provider and does that easement interfere with any third parties’ existing rights?
  • Are the association’s damages against the provider limited in the event a provider breaches the agreement or fails to provide the services that are contemplated?

These are just a few of the issues that the association must address in negotiating a bulk services agreement. Any time an association is considering entering into a new bulk agreement, it should review that agreement carefully and seek appropriate guidance from its attorneys, accountants and insurance agents.

James Robert CavesJames Robert Caves, III is an attorney with the law firm of Becker & Poliakoff, P.A., which represents community associations throughout Florida, with offices in Ft. Myers, Naples and 11 other Florida cities. The firm focuses a substantial amount of its practice on condominium and homeowners association law. 

 

 

28Nov 2018

What are Pooled Reserves and How Do We Implement Them?

Cash flow funding of condominium reserves, often referred to as the “pooling” method of reserve funding, is a concept that was introduced many years ago through an amendment to the state’s administrative rules regulating condominium finances.

Under the traditional, straight-line method, required reserve contributions are calculated by using a formula that divides the cost of replacing a particular item by the number of useful years that item has left, minus the reserve funds on hand for that item, with the result being the amount to fully fund that item for the next fiscal year. Each reserve component must be separately funded and must appear as a separate line item in the reserve schedule, which is part of the budget. Absent a majority vote of the unit owners, monies for each separate reserve item can only be used for that particular reserve item.

Under the pooling or cash-flow method, each reserve item is still separately funded but the money is put into one account. The reserve schedule computation is a bit more complicated and typically needs to be prepared by an accountant or reserve consultant. The basic theory is that the association attempts to predict the year a particular asset will require deferred maintenance or replacement, and a mathematical formula is then applied to calculate required contributions for each year. In theory, the money should be available when needed, with a lower contribution than required using the straight-line method.

A pooled reserve fund can then be used for any reserve item as the need arises, creating more flexibility for the board, which most associations see as the main benefit, as opposed to having to take an annual owner vote for inter-fund spending when the straight line method is used. In other words, the board can use any money in the reserve fund for an earmarked item that is within the “pool.” Conversely, with straight-line funding, the board could not, for example, use money in the painting reserve to pay for re-roofing, unless a successful vote of the unit owners is obtained.

The main benefit of pooled reserves is greater flexibility in how the money is spent. However, the same result can be accomplished by taking a yearly vote to permit the use of reserves for a non-scheduled purpose.

There are a few negative aspects of pooled reserves, however. First, the formula is complicated and most volunteer board members, community association managers and lawyers do not possess the analytical skills necessary to compute the required charts. Second, since the funding is predicated on anticipated asset failure many years into the future, an imprecise science at best, there can be substantial underfunding if the actual cash flow deviates from the assumptions in the formula. As a result, there may be a greater likelihood of the need to adopt a special assessment.

If your association currently uses straight-line reserve accounts, you would need approval of the unit owners (i.e. a majority of the owners who vote at a meeting where a quorum is attained) to put that money into the “pool.” Once the vote to switch to pooled reserves is successful, no further votes would be required in future years and the association could continue to operate under the pooling method.

 

David MullerDavid G. Muller is an attorney with the law firm of Becker & Poliakoff, P.A., which represents community associations throughout Florida, with offices in Naples, Fort Myers and 11 other Florida cities. The firm focuses a substantial amount of its practice on condominium and homeowners association law. 

 

 

 

28Nov 2018
Condominium Association Statutory Required Websites – Facts and Myths

Condominium Association Statutory Required Websites – Facts and Myths

Section 718.111(12)(g), Florida Statutes, was added to Chapter 718, Florida Statutes in 2017, requiring that by July 1, 2018, an association with 150 or more units which does not manage timeshare units is required to post digital copies of the documents specified in the section on its website, and lists specific documents that are required to be posted on the association website. In 2018 the section was amended to change, among other things, the effective date to January 1, 2019, as well as changes as to what must be posted.

The website must be an independent website or a web portal wholly owned and operated by the association, or a website or web portal operated by a third-party provider with whom the association owns, leases, rents, or otherwise obtains the right to operate a web page, dedicated to the association’s activities and on which required notices, records, and documents may be posted by the association. The purpose of this requirement is that in the event of a change in management companies or manager, the association must maintain control of the website.

The website must be accessible through the Internet and must contain an area that is inaccessible to the general public, accessible only to unit owners and employees of the Association.

While the statute provides that “upon an owner’s written request” the association must provide the owner with a username and password to access the protected areas of the website, obviously it makes sense to notify all owners of the manner in which to obtain their username and password.

Some of the requirements that must be posted on the association website include:

  • The association’s governing documents (Declaration, Articles of Incorporation, Bylaws and Rules and Regulations).
  • A list of all executory contracts or documents to which the association is a party or under which the association or the unit owners have an obligation or responsibility (this was changed from “Any management agreement, lease or other contract”).  An association is not required to post entire contracts on its website.  Only a listing of such contracts is now required.
  • After bidding for the related materials, equipment, or services has closed, a list of bids received by the association within the past year.
  • The association’s annual budget and any proposed budget to be considered at the annual meeting.  While the statutes only technically requires the posting of “any proposed budget to be considered at the annual meeting”, as a practical matter many, if not most, budgets are not considered at the annual meeting but at a separate budget meeting.  I suggest the association post any proposed budget, even one not to be considered at the annual meeting, on the website.
  • The association’s annual financial report for the preceding year and any monthly income or expense statement proposed financial report to be considered at a meeting.  This appears to require the posting of an association’s monthly financial statement if it is to be considered at a meeting.
  • The board member certification of each director.
  • All contracts or transactions between the association and any director, officer, corporation, firm, or association that is not an affiliated condominium association or any other entity in which an association director is also a director or officer and financially interested.
  • Any contract or document regarding a conflict of interest or possible conflict of interest as provided in ss. 468.436(2)(b)6., and 718.3027(3).
  • The notice of any unit owner meeting and the agenda for the meeting, no later than 14 days before the meeting.  The notice must be posted in plain view on the front page of the website, or on a separate subpage of the website labeled “Notices” which is conspicuously visible and linked from the front page. The association must also post on its website any document to be considered and voted on by the owners during the meeting or any document listed on the agenda at least 7days before the meeting  at which the document or the information within the document will be considered.
  • Notice of any board meeting, the agenda, and any other document required for the meeting, which must be posted no later than the date said notice is required to be posted on the condominium property pursuant to statute.

In addition to the above requirements, an association is also required to insure that official records that are not releasable to owners are not posted on the association website.  However, the association is not is not liable for disclosing information that is protected or restricted pursuant to this paragraph unless such disclosure was made with a knowing or intentional disregard of the protected or restricted nature of such information.

If an association does not post any of the required information, such failure will not invalidate any action or decision of the board.  In other words, if an association does not post meeting minutes or meeting notice as required, such failure, in and of itself, will not act to invalidate any board actions taken at such meeting.

If you have any questions concerning the website requirements, you should contact your association attorney.  Of course your association attorney should review any association website contract before the association executes such contract to insure the contract complies with the statutory requirements.

 

Howard PerlHoward J. Perl is an attorney with the law firm of Becker & Poliakoff, P.A., which represents community associations throughout Florida, with offices in Ft. Lauderdale, Miami, and 11 other Florida cities. The firm focuses a substantial amount of its practice on condominium and homeowners association law. 

 

 

 

14Jun 2018
alligator

Tragic Alligator Attack Should Cause Community Associations to Consider Alligator Dangers

The recent and devastating death of Shizuka Matsuki, a Florida woman attacked by an alligator, has alarmed and dismayed Floridians while raising many questions for community associations and their residents about alligator safety measures. Floridians are understandably fearful of alligator attacks due to the widespread prevalence of alligators in our state (similar considerations apply to less common and more localized crocodile populations in coastal areas). The disturbing details about the attack bring to mind the horror experienced in 2016 when a child, Lane Graves, was killed at a resort lagoon. While these types of attacks may not happen very often, even a single person or pet taken by an alligator is far too many.

For community associations maintaining the areas abounding bodies of water that are known possible alligator habitats (or at least areas they may occasionally frequent), safety is the primary concern. Associations do not and should not assume a duty to act as protectors and insurers of resident and/or invitee safety when it comes to wildlife; however, associations should, with advice of counsel and in consideration of insurance coverage requirements, take reasonable measures to warn residents and invitees by posting signage regarding the presence of alligators. In addition to signage, associations can, but are not required to, provide barriers (such as fencing) that prevent access to known areas of alligator habitation, while taking care to comply with requirements in the governing covenants and restrictions applicable to any “material alterations” or improvements of the property administered by the association.

Association directors and management personnel should educate themselves and can adopt policies to address the presence of alligators (and other dangerous wildlife). These policies can include contact information for appropriate agency hotlines, such as the nuisance alligator hotline of the Florida Fish and Wildlife Conservation Commission (“FWC”), the administrative agency that handles alligator conservation and removal. The hotline can be reached at 866-FWC-GATOR (866-392-4286). The policy can provide for appropriate animal sighting protocols, such as a requirement that residents and guests report sightings to management in writing, mass notification to residents of alligator sightings, immediate calls to the FWC hotline, strict rules against engagement by unqualified residents, owners, invitees, or association or management personnel, etc. The association can also provide educational materials to new owners and residents regarding the potential or known presence of alligators, including a link to the website for the FWC (www.myfwc.com). Associations with websites should strongly consider including links to these resources. Again, legal counsel should be consulted to discuss the best way to enact these types of policies.

Legal authorities concerning an association’s duties and liabilities relating to this issue are scarce. For example, there are no Florida statutory duties governing or requiring association signage relating to this issue (an issue the Florida Legislature may wish to address), and case law regarding alligator attacks has generally concerned itself with liability to invitees, a group that may be treated differently than residents. Under a longstanding doctrine concerning animals ferae naturae (wild animals) various cases hold that property owners do not have a general duty to invitees to anticipate the presence of alligators (or other dangerous wildlife) or to take extraordinary measures to protect invitees from wildlife, especially when that wildlife is in its natural habitat. However, this doctrine does not necessarily override competing negligence doctrines concerning a reasonable duty of care to maintain the premises in a reasonably safe condition in light of knowledge of a foreseeable risk of harm. Accordingly, there is a potential duty to warn (and possibly a duty not to actively encourage or invite access to areas where alligators are known to frequent) if there is knowledge about the ongoing presence of dangerous wildlife.

For example, in a 2011 appellate case in Georgia that addressed the liability of an association to a house sitter attacked by an alligator, the appellate court permitted the plaintiff to survive a summary judgment motion by the association (i.e. – their case had legal merit and sufficient factual evidence that they could go to trial). The appellate court was then reversed in a Georgia Supreme Court decision that found that the house-sitter assumed the risk in walking by the lagoon at night with knowledge of the potential presence of alligators. While based upon specific local Georgia statutes and doctrines and not necessarily binding on Florida Courts, the decision illustrates a situation in which a jury could potentially find a breach of the association’s duty to warn in relation to an alligator attack and the type of knowledge of the threat that would prevent such a case from going to a jury. The association at issue did in fact have a policy for frequent alligator removal, but did not have signage that could have warned the house sitter. Notwithstanding these issues and uncertainties, associations should work with counsel to focus on reasonable policies to attempt to avoid these types of tragedies, by establishing a plan in the event of alligator sightings, education and notice, and signage that warns residents and invitees of potential alligator dangers.

Jonathan Goldstein

Jonathan Goldstein is a partner with Haber Slade P.A. Goldstein’s practice includes community association law, real estate, construction, and commercial litigation. His email is jgoldstein@dhaberlaw.com.

 

10Jan 2018
Florida Supreme Court’s Latest Construction Defect Decision

Florida Supreme Court’s Latest Construction Defect Decision: Triggering the Insurer’s Duty to Defend in the Pre-Suit Process

The issue of whether a chapter 558 notice serves as a “claim” under a commercial general liability (“CGL”) policy, such as the one issued by Crum & Forster Specialty Ins. Co. (“C&F”) in Altman Contractors, Inc. v. Crum & Forster Specialty Ins. Co., No. SC16-1420, 2017 WL 6379535 (Fla. Dec. 14, 2017), has finally been resolved and construction defect claimants can expect earlier participation from their carriers.

Prior to the Altman decision, homeowners and/or condominium associations were frustrated during the chapter 558 process after sending a notice of claim because insured construction parties could not get insurers to become involved in pre-suit negotiations.  Such a result was antithetical to the purpose of chapter 558 – which was instituted specifically to streamline the construction defect claims process and encourage early alternative dispute resolution.

In Altman, the following question was presented to the Florida Supreme Court: “Is the notice and repair process set forth in chapter 558, Florida Statutes, a ‘suit’ within the meaning of the CGL policy issued by the insurer, C&F, to the general contractor, Altman Contractors, Inc. (“Altman”)?”  The Florida Supreme Court recently answered in the affirmative and held that the notice process set forth in chapter 558 does indeed constitute a “suit” within the meaning of the CGL policy at issue – which in turn means that insurance carriers can no longer sit back following receipt of a chapter 558 notice and must instead take an active role earlier in the process. 

‘Duty to Defend’

The Altman case stems from defects in the construction of Sapphire Condominium, a high-rise residential condominium in Broward County. C&F insured Altman for the Sapphire project through a policy that provided, in pertinent part, as follows: “[w]e will pay those sums that the insured becomes legally obligated to pay as damages because of ‘bodily injury’ or ‘property damage’ to which this insurance applies.  We will have the right and duty to defend the insured against any ‘suit’ seeking those damages.” Altman sought a declaratory judgment that C&F owed it a duty to defend and indemnify as part of the chapter 558 pre-suit process to resolve claims for construction defects, and that C&F breached the liability insurance policy by refusing to initially defend Altman in the suit against Sapphire. C&F denied that Sapphire’s chapter 558 notices invoked its duty to defend Altman under the policy because the notices did not constitute a “suit.”  The insurance policy defined the term “suit” as follows:

“Suit” means a civil proceeding in which damages because of “bodily injury,” “property damage” or “personal and advertising injury” to which this insurance applies are alleged. “Suit” includes:

  1. An arbitration proceeding in which such damages are claimed and to which the insured must submit or does submit with our consent; or
  2. Any other alternative dispute resolution proceeding in which such damages are claimed and to which the insured submits with our consent.

The policy neither defined the term “civil proceeding” nor defined the term “alternative dispute resolution proceeding” within the context of the definition of the term “suit.”  Notwithstanding, the Florida Supreme Court held that the chapter 558 process is included in the policy’s definition of “suit” as an “alternative dispute resolution proceeding.” [Emphasis added]

It is also noteworthy that since the Notice of Claim under chapter 558 is included in the policy’s definition of “suit” as an “alternative dispute resolution proceeding,” the insurer’s consent appears to be required in order to invoke its duty to defend the insured throughout the pre-suit process.  In Altman, the Florida Supreme Court noted that “chapter 558 does not place any obligation on the insured to participate in the chapter 558 process. The chapter 558 framework has never been anything other than a voluntary dispute resolution mechanism on the part of the insured, despite its requirement that the claimant serve the insured with a notice before initiating a lawsuit.”  Given that involvement in the chapter 558 pre-suit process is voluntary as opposed to mandatory on the part of the insurer, it remains to be seen whether insurance carriers will provide consent to participate in the process. 

Nevertheless, upon receipt of a chapter 558 notice, it behooves contractors and subcontractors to tender the notice to their insurance carriers.  It is in the insured-contractor or insured-subcontractor’s interest to encourage its insurance carrier to engage in the chapter 558 pre-suit process.  Absent the insurance carrier’s involvement in the chapter 558 pre-suit process, the insured will be forced to incur its own costs and fees if the insured chooses to participate in the process without the consent of its insurance carrier.  In the event that the insurance carrier fails to provide consent to engage in the chapter 558 pre-suit process and defend the insured, it may be in the insured-contractor or insured-subcontractor’s interest to litigate the matter because the insurance carrier’s duty to defend is then triggered and the insurance carrier will be forced to investigate the construction defect claims – shifting the financial burden from the insured-contractor or insured-subcontractor back onto the insurance carrier.  In light of the foregoing scenario, it is more likely that the insurance carrier will be inclined to give consent to avoid the costs of litigation and to attempt to expeditiously settle the matter – but that is yet to be determined. 

Settling Construction Defect Claims Now More Likely

Moreover, the insurance policy at issue in Altman is a standard commercial general liability policy and as such it is likely to have a profound impact on future chapter 558 construction defect litigation.  Accordingly, defense carriers are more likely to be engaged in construction disputes, particularly during the pre-suit stage after a chapter 558 notice is received – or at least they should in light of this decision.  As such, the chapter 558 process, unlike in many past years, is now likely to encourage the claimant and insured to attempt to settle construction defect claims prior to expending time and resources litigating those claims.  Such a notion is consistent with the legislature’s aim in creating chapter 558 as an effective alternative dispute resolution mechanism, intended to curb construction defect litigation.  Indeed, the Florida Supreme Court in Altman even stated, in dictum, that chapter 558 provides for a “statutorily required presuit process aimed to encourage the claimant and insured to settle claims for construction defects without resorting to litigation.”

In light of the foregoing, it is imperative that individual homeowners, homeowner associations and/or condominium associations, along with their experts, prepare detailed inspection reports that set forth the various construction defects affecting their property, what resulting damage is occurring as a result of those defects, the locations of the defects throughout the property, and determine compliance with the applicable building code, plans, and specifications.  By virtue of more detailed reports in compliance with the requirements of chapter 558, it seemingly becomes more likely that construction defect disputes will result in settlements at an earlier stage – thereby saving the parties exorbitant amounts of money that otherwise would be expended in litigation.

 

David Haber David B. Haber is the founding partner of Miami-based Haber Slade, P.A. He is a commercial litigator with 30 years of experience who has handled multiple complex commercial disputes throughout Florida, including complex commercial litigation, construction, and condominium and homeowners’ association disputes. David can be reached at dhaber@dhaberlaw.com

 

 

David T. Podein Frank Soto is a partner with the firm. He focuses on construction litigation. Frank can be reached at fsoto@dhaberlaw.com.

 

 

 

Brett Silverberg is a JD/MBA student at the University of Miami and a law clerk at Haber Slade. The firm is on the internet at www.haberslade.com.

 

14Sep 2017
hurricane irma

Hurricane Irma: Tips for Navigating Your Way Through the Insurance Claim Process

Hurricane Irma has made a significant impact on many properties and people throughout Florida. The insurance claim process for condominium and homeowner associations can be complicated and frustrating. As soon as possible, associations should coordinate the claim process with their property management and legal counsel. These five issues are critical to that process: 

Review and Document the Damage

You (the association and its management team) must promptly survey the properties for potential and/or actual damages that need to be reported and addressed. Document all actual and potential damage with photographs and video. This documentation should be accompanied by confirmation of the time, specific locations, and the person taking the photographs and video. Additionally, this documentation should be compared against the pre-storm documentation in order to prove that the damage did not exist prior to the storm. The “before” and “after” documentation is critical to fighting against insurers’ potential defenses. Associations should also gather any applicable maintenance records, vendor and repair records, and related documentation in order to establish the condition of the property pre-hurricane and the association’s regular maintenance practices and procedures. This helps prove that the damage caused by a hurricane (or similar insurable event) was not a “pre-existing condition” and/or a result of “lack of maintenance” at the property.

Associations should work with their legal counsel to review the Declaration and property boundaries in order to distinguish any reported unit owner property damage from the association’s property and common elements/limited common elements. These distinctions are important for both the insurance claim process and identifying the party responsible to repair.

Duties Under Your Insurance Policies

Make sure the association has updated copies of all applicable policies (part of the official records). Consult with your legal counsel in order to evaluate if the damage might apply under the flood policy, wind policy, and/or property policy. Depending on the type of damage, your claims may apply to multiple separate insurance policies. For each policy, create a checklist of the requirements for making a claim and the insurer’s deadlines that must be strictly complied with. Locate the section(s) in your policies titled “Duties of the Insured” a/k/a “Duties in the Event of Loss.” Add these items to your claim checklist and make sure to calendar all time deadlines.

After the storm event, associations must provide written notice to their insurance companies as soon as possible. Notice merely to your insurance agent is not  notice to the insurance company. No association wants an otherwise legitimate claim to ultimately be denied because it  failed to timely notify the insurance companies in writing. Your claim checklist for each policy should include the name, address information, and policy specific requirements for providing written notice of the claim.

Additionally, notify the owners/residents to promptly document and file their own individual insurance claims for their own insured property (finishes, property, and other items within the unit boundaries).

Communications with Adjusters and Insurance Companies

All too often, an association’s property management and/or directors erroneously believe the adjuster from the insurance company is on the association’s team in this process. Wrong! The adjuster sent by the insurance company does not work for you and is not a neutral party. The adjuster is paid by the insurance company and is often a third party contractor. Keep in mind the adjuster is primarily attempting to assist the insurance company to limit the loss/exposure of the company.

All-important communications with the adjuster and insurance companies should be timely documented in writing. Internal emails and other communications between the board of directors, property management, and the association’s legal counsel should not be inadvertently shared with the adjuster and/or insurance company. Consult with your legal counsel before responding to information requests and have your legal counsel instruct the adjuster and insurance companies to direct all communications about the claim to legal counsel.

Interim Repairs

You may need to make some interim repairs at the property before your claims are fully resolved. After the damage to the property has been evaluated and documented, it is important for associations to take the necessary steps to mitigate further damages and losses – – without prejudicing your rights under the applicable insurance policies. Make sure to provide written notice to your insurers regarding: (i) your proposed interim repairs and mitigation steps; (ii) the estimated costs; and (iii) confirmation that the insurer consents to you proceeding with the interim repairs even though your claim is still under review. Document the interim repairs with photographs, videos, estimates/bids, purchase order, invoices, as well as proof of payments. Emergency mitigation should always be performed as soon as possible (i.e., covering open windows and/or roof openings).

For non-emergency repairs/remediation, you should solicit at least three bids/estimates for each scope of work (unless you cannot find three bidders or in an emergency). The Board is not required to select the lowest bid – – and should be weary of bids that are unusually low compared to the others. For larger repair projects, it is important to coordinate the bid and contract requirements with your legal counsel before sending it to prospective bidders. Including the association’s contract requirements and standard clauses in the request for bids will help reduce contract negotiation and preparation time.

Additional Factors

There are related issues that are also very important to consider, such as: (i) does your association have a loan with a lender and thus have borrower specific duties under the loan documents? Associations should carefully review their loan documents with legal counsel in order to ensure compliance with the lender specific issues; and (ii) many management companies include a provision in their standard management contract that the association is required to pay the management company additional compensation in the event of significant repair projects after insurable events (a/k/a Hurricane Irma). This is an important factor for the Board to consider when preparing repair budget(s).

 

David Haber David B. Haber is the founding partner of Miami-based Haber Slade, P.A. He is a commercial litigator with 30 years of experience who has handled multiple complex commercial disputes throughout Florida, including complex commercial litigation, construction, and condominium and homeowners’ association disputes. David can be reached at dhaber@dhaberlaw.com

 

 

David T. PodeinDavid T. Podein is a partner at the law firm of Haber Slade. He concentrates his practice in the areas of real estate leasing, financing, and acquisitions/closings, real estate development, condominium and community association law, and construction law. David can be reached at dpodein@dhaberlaw.com. The firm is located on the internet at www.haberslade.com.

 

08Jun 2017

Unit Owners, Beware: The Developer May Have Stacked the Board Against You

Condominium and HOA Board Members May be Neglecting the Duties You are Owed

Are you concerned that the developer of your condominium did not deliver on the promises made to you when you purchased your condominium unit? Are you concerned with the construction of the condominium in which you live? For most individuals, the purchase of a condominium unit can be their most important investment. However, many of the decisions impacting this investment are not up to the owner of the unit, but rather, are left up to a board of directors controlling the association.

At a specified time, the developer of a condominium is required to relinquish control of the association’s board of directors in favor of the unit owners. The turnover of an association from developer to the unit owners presents the first opportunity for the association’s board to hire a lawyer, an accountant, and an engineer to perform important and time-sensitive inspections of the condominium. These inspections will identify construction defects and other concerns that may exist. As such, it should not be surprising that a developer would want a “friendly” association board of directors following turnover. But imagine the havoc an unscrupulous developer could inflict if the association’s newly elected board members—or the attorney and engineer working for the unit owners—have financial ties to the developer.

 A recent Miami-Dade Grand Jury report found that there was extensive fraud, mismanagement, stacking of boards, and conflicts of interest among condominium association boards.[1] Such misconduct is not limited to Miami-Dade, however. Perhaps surprisingly, one of the largest public corruption cases set in the fast-paced, scheming neon desert notoriously dubbed “Sin City” did not involve the usual Las Vegas suspects, but rather a contractor, a lawyer, and a stacked board of condominium directors. In 2015, Leon Benzer, a construction company boss, was sentenced to 15 ½ years in federal prison for orchestrating a scheme to take control of association boards for the purpose of channeling construction defect repairs to Benzer’s company. Benzer’s scheme involved a network of recruited purchasers and real estate agents who would get elected to association boards, hire Benzer’s attorney, and award lucrative contracts to Benzer’s construction company. Through these unethical practices, these individuals violated the duties owed to the association and its unit owners.

Condominium unit owners who serve on the board of directors are considered shareholders of the association, and act in a fiduciary relationship to each owner. In such relationships, the law demands a higher than ordinary degree of care from each director and officer, with Florida law specifically demanding directors to discharge their duties in good faith. Simply put, directors should act to protect the best interests of the association and its unit owners, rather than their personal interests or those of affiliated third parties. The actions of the board members in Benzer’s scheme were in complete disregard of the unit owners’ rights, as they participated in rigging elections and seeking only personal gain. In order to avoid a Benzer-type scheme, it is critical for unit owners to exercise due diligence in selecting truly independent individuals to become board members to represent the best interests of all the unit owners at the time control of the association is transferred from the developer. Since Florida law permits condominium association boards to settle claims concerning monies owed from the developer and matters of common interest to the owners, including construction defect claims, it is even more vital to ensure that an association’s board, their attorney, and engineer are not being led by ill-intended individuals to unscrupulously settle claims for pennies of their real worth, accept cosmetic repairs that do not fully address the underlying defective condition, and waive association claims for latent defects.

In order to ensure that meritorious claims of unit owners are adequately protected, unit owners must get involved and confirm that independent board candidates without financial ties to the developer or contractor are seeking election to the association’s board. Additionally, steps should be taken to confirm that the association’s officers and directors hire independent, knowledgeable attorneys and engineering firms, not attorneys and engineers affiliated with the developer or contractor. Unit owners should be cautious when dealing with an attorney that was selected, hired, and paid by the developer-controlled board prior to the unit owners taking control of the association. Unit owners must ask critical questions of management, those seeking election to the board, and the attorneys and engineers being interviewed to represent the association, as to their involvement or affiliation with the developer or contractor that built the condominium. Protect your investment, and avoid a Benzer “stacked board.”

For further information regarding the turnover process, self-dealing, conflicts of interest, and the duties of your board of directors, please submit your questions on our website and get the information you need to make sure you are safeguarding your investment.

 

David Haber

Nicholas Siegfried is a partner with the South Florida law firm of Siegfried, Rivera, Hyman, Lerner, De La Torre, Mars & Sobel, P.A. who has focused on community association and construction law since 2006. He is based at the firm’s office in Coral Gables, and the firm also maintains offices in Broward and Palm Beach counties, representing more than 800 associations throughout Florida. He may be reached at nsiegfried@srhl-law.com and at (305) 442-3334.

[1] Final Report of the Miami-Dade County Grand Jury Spring Term 2016, Addressing Condo Owners’ Pleas for Help: Recommendations for Legislative Action, at 1-31(Fla. Cir. Ct. Feb. 6, 2017). A copy of such grand jury report may be found at: http://www.miamisao.com/wp-content/uploads/2017/02/Grand-Jury-Report-Final.pdf.

08Jun 2017
Short-term Rentals in Private Residential Communities

Florida Appellate Court Weighs in on Short-term Rentals in Private Residential Communities

The topic of Airbnb and similar short-term rental sites is on most boards’ minds these days as more and more owners look to monetize their condominium and cooperative units as well as their single-family homes. Recently, the First District Court of Appeal issued a ruling in the case of Santa Monica Beach P.O.A. v. Acord, Case No. 1D16-4782, (Fla. 1st DCA, April 28, 2017), which held that residential use restrictions in a community’s covenants were not sufficient to curb short-term rental activity. The homeowners, Mr. and Mrs. Acord, listed their homes on the VRBO website, obtained transient rental licenses in a corporate name, and collected and remitted state sales and local bed taxes. The association asserted that such activity violated the Santa Monica Beach subdivision restrictive covenants which stated:

Said land shall be used only for residential purposes, and not more than one detached single-family dwelling house and the usual outhouses thereof, such as garage, servants’ house, and the like, shall be allowed to occupy any residential lot as platted at any one time; nor shall any building on said land be used as a hospital, tenement house, sanitarium, charitable institution, or for business or manufacturing purposes nor as a dance hall or other place of public assemblage

The trial court granted a motion to dismiss with prejudice after finding that the short-term rental use was residential rather than commercial.

The First District Court of Appeal was asked to determine whether short-term vacation rentals violate restrictive covenants requiring property to be used only for residential purposes and prohibiting its use for business purposes. The Court focused on the actual use by the short-term renters (eating, sleeping, etc.) and not the hotel-like duration of the rental. The Court cited other case law holding that a rental, even a rental for profit, does not transform the use of a dwelling from residential to either business or commercial. After all, even short-term renters are using the premises for typically residential purposes and not to run a business, and the fact that the owners of these units are deriving revenue from the rentals does not change the use of the premises from residential to commercial. Ultimately, the Appellate Court simply could not rely upon the “no business use” restriction in the restrictive covenants to prohibit short-term rental activity. Had the association attempted to rely on leasing restriction rather than a “no business use” restriction, would things have turned out differently?

Perhaps the most telling and most instructive comment from the court in the Santa Monica Beach case was the observation that the association had no specific restriction on short-term rentals. Many communities have restrictions on leasing in their governing documents, which can include minimum and maximum lease terms, a limit on the number of times per year an owner can rent, to an overall cap on the number of properties that can be leased at any one time. Enforcement of short-term rental restrictions against this kind of transient rental can be very difficult because the tenant comes and goes before there is any opportunity for enforcement action rendering the violation moot. However, an action or activity, like repeated short-term rentals, that is capable of repetition but evading review would be an exception to the mootness doctrine. In the Santa Monica Beach case, if the association had short-term rental restrictions in its governing documents, an owner’s pattern of renting out the dwelling in violation of the minimum lease terms could have been used to seek injunctive relief against future violations. The goal for most associations, however, is to deter the activity rather than having to overcome hurdles in court.

Regulate or Prohibit?

In some communities, it might make sense not to prohibit short-term rental activity, but to regulate it and perhaps even monetize it to defray the association’s operating expenses. Fees can be charged for registration, parking, and the use of recreational amenities. It might also make sense for the association to operate a mandatory rental pool in order to control all aspects of rental activity from booking to arrival and departure.

For those communities who do wish to restrict this kind of activity, the starting point is to ensure that their governing documents contain a clear, unambiguous restriction which defines engaging in Airbnb activity as a violation of the contract between the association and its members. From there, the association can proceed to impose fines, suspend use rights, put the short-term rental websites on notice of the ineligibility of properties in the community to offer these services, and/or pursue arbitration or injunctive relief.

Local Government Likely Cannot Help Your Association in This Battle

There is a logical argument to be made that local governments have a dog in this fight and should be regulating and/or restricting short-term rental activity. Airbnb and similar companies understand that their business model can be greatly impacted by local ordinances, so they have been proactive in seeking out legislators who will ensure such actions are not permissible. In the 2017 Florida Legislative Session, two vacation rental bills were introduced that primarily impact local governments. The goal from Airbnb’s standpoint is to preempt local governments from regulating vacation rentals. Given Airbnb’s success so far in protecting its business model by putting the brakes on those who might oppose them, it only makes sense that private residential covenants might come up on their radar in the near future. Associations, particularly those in tourist-heavy locations, would be well-advised to review and amend their documents now to address this issue as waiting too long might result in an inability to impose meaningful restrictions.

The takeaway from this first appellate case regarding the inevitable tug of war between the desire of some association members to monetize their properties and the association’s desire to protect the residential nature of the community is that in order to curb or prevent Airbnb activity in a private residential community, the governing documents must tackle the problem head-on. No beating around the bush or relying on existing restrictions which were drafted years before the Airbnb business model came into existence.

 

Donna DiMaggio Berger

Donna DiMaggio Berger is a shareholder at the community association law firm of Becker & Poliakoff and has represented all types of shared ownership communities throughout Florida. Berger is a member of the College of Community Association Lawyers (CCAL), a prestigious national organization which acknowledges community association attorneys who have distinguished themselves through contributions to the evolution or practice of community association law and who have committed themselves to high standards of professional and ethical conduct in the practice of community association law. Berger can be reached at (954) 364-6031 or via e-mail at dberger@bplegal.com.

 

08Jun 2017
Insurance Appraisals and Coverage for Condominiums

Insurance Appraisals and Coverage for Condominiums

Property insurance premiums are continuing to rise, and now is a good time for condominium boards and property managers to review their understanding of insurance coverage requirements and the insurance appraisals that are used to establish coverage limits. Per Florida Statute 718, The Condominium Act, the association “…shall use its best efforts to obtain and maintain adequate property insurance to protect the association, the association property, the common elements, and the condominium property….” Additionally, the statute requires that the insurable replacement cost be “determined by an independent insurance appraisal or update of a prior appraisal.”

Hazard Insurance

Every hazard insurance policy issued or renewed after January 1, 2009, must provide primary coverage for “All portions of the condominium property as originally installed or replacement of like kind and quality, in accordance with the original plans and specifications.”

Further, the statute defines building components that are not included in the condominium hazard insurance. The Statute specifically states:

The coverage must exclude all personal property within the unit or limited common elements, and floor, wall and ceiling coverings, electrical fixtures, appliances, water heaters, water filters, built-in cabinets and countertops, and window treatments, including curtains, drapes, blinds, hardware, and similar window treatment components, or replacements of any of the foregoing which are located within the boundaries of the unit and serve only such unit.

Items excluded from the condominium association’s property insurance are the responsibility of the individual unit owners to insure. Thus, it is important for condominium unit owners to have a good understanding of the association’s insurance policies and their individual unit policy to avoid gaps or overlap in coverage. Certainly, a key goal for the Condominium Act is to clarify coverage responsibility and “to ensure consistency in the provision of insurance coverage to condominiums and their unit owners.” Additionally, standard underwriting guidelines for hazard insurance values exclude foundations and piping underground from coverage. 

Flood Insurance

While the Florida statutes specify coverage parameters for hazard insurance, they are largely silent on the issue of flood insurance. Coverage for flood insurance is defined by the National Flood Insurance Program (NFIP), which is managed by the Federal Emergency Management Agency (FEMA). FEMA coverage is based on Replacement Cost Value (RCV) of the complete residential condominium building without the exclusions mentioned previously for hazard insurance. RCV is defined as the full current cost to construct replacement buildings (or portions thereof based on the extent of flood damage) having equal utility as the damaged property using current construction methods and materials. This coverage includes the interiors as they were originally built, and does not cover upgrades which were added by the unit owners. Federal flood insurance, underwritten by the U.S. Government, is available for residential condominium buildings up to a maximum RCV of $250,000 per unit (calculated by multiplying the total number of units in the building by $250,000). Additional flood coverage over this limit is obtained on the open insurance market.

Non-residential association buildings (defined as buildings with less than 75 percent of structure floor space for residential use) having two or more outside rigid walls and a fully-secured roof can obtain FEMA flood insurance up to a maximum actual cash value (ACV) of $500,000 per building. ACV is defined as replacement cost minus physical depreciation value. Clubhouses and pool houses would be typical examples of association non-residential buildings. Note that any amenities not meeting the rigid wall and roof requirement such as carports, walkways, pools, tennis courts, fences, etc. would not be covered for flood insurance.

The difference between hazard insurance and flood insurance values can create a great deal of confusion among unit owners and condominium boards. Typically, hazard values are typically around 65–70 percent of flood insurance values.

Insurance Appraisals

For an association property to be properly insured, an accurate, unbiased appraisal of the replacement costs must be obtained. Given the complexities of the appraisal process in determining current building costs and differentiating hazard and flood values, it is strongly recommended that condominium associations seek out an appraisal firm that has expertise in this area. A firm that has Florida state-certified and licensed appraisers assures a high level of competence. Licensed appraisers are accountable to the Florida Department of Business and Professional Regulation and the Florida Appraisal Board. Cost estimators who are not state-licensed appraisers typically have no government oversight or accountability for the accuracy of their reports.

The insurance appraisal process involves a physical inspection of the buildings and amenities being insured. Photographs are taken for reference as required by the insurance carriers. When available, “as-built” architectural building plans are utilized by the appraiser to determine square footages and building details that are not observable from the on-site inspection. When plans are not available, measurements are taken and drawings are made on-site. From these, computer-aided drawings are created to accurately determine the square footage for all building areas.

Current construction costs are determined using professional building cost systems based on building type, class, size, design, quality and many other factors including local construction material and labor costs. Finally, an appraisal report is developed in the format required by the insurance carrier to properly underwrite the association hazard and flood policies.

Accurate Appraisals Are Critical

The risks associated with poorly developed and inaccurate insurance appraisals can be high. No association wants to find itself in a position of being over or under-insured. If the appraisal is low, the risk of co-insurance penalties and insufficient insurance proceeds to replace a total loss are very real. Conversely, if appraised value is high, the insurance premium will be higher than necessary and a waste of association budget dollars.

 

Rick Logan

Rick Logan and Bob Townsend are both Florida State-Certified General Real Estate Appraisers and have more than 50 years combined appraisal experience. Their firm, Townsend Appraisals, specializes in developing insurance appraisals for condominium associations and commercial building owners to establish coverage limits for hazard and flood policies. Their office is in Naples, Florida, and they service all Southwest Florida from Everglades City to Tampa. All staff appraisers are state-certified and licensed. For more information, visit www.townsendappraisalsinc.com.

 

08Jun 2017
Wait Times at the Gate

Frequently Asked Questions: How Can a Community Reduce Wait Times at the Gate?

It’s a question and issue that almost everyone faces. Whether you are the property manager, a resident living in a gated community, a vendor, or a visitor who uses a community’s gate often—it is easy to relate to the frustrations that come with long wait times at a community entrance. Many people refer to this as stacking, or the buildup of vehicles at an entrance. While it is unlikely that this issue will be resolved at all times, with technological advancements, there are methods that can greatly decrease the chances of stacking.

Before a community discusses the options to alleviate wait times at the entrance, it’s important to determine the cause, and there can be several explanations. First, a telephone entry system is a common culprit for stacking. Not only are these systems typically unreliable and antiquated, but the codes can be misused or time consuming as visitors search through a long list of names to find the resident he or she would like to see. Just one driver dealing with this can create a long back-up of vehicles at a community, especially during busy times of the day.

There are other instances with gate guards that can cause stacking at communities. If the guard does not have an updated system that allows him or her to quickly verify visitors and complete transactions, it is likely that stacking will frequently occur. While a revised method for verification would help expedite transactions, there are also cases where the drivers trying to enter a community create a backup. Unfortunately, this type of situation is difficult to control. The visitor may not be approved to enter or cannot reach the resident he or she is trying to visit. This type of circumstance makes it even more important to have a quick transaction process that can speed up the verification of other guests after a backup.

Once a community determines the main cause or causes of stacking, then the options for expediting the process can be examined. The most efficient method to decrease stacking at a community is to incorporate a form of automation at the entrance. The two main types of automation are automatic license plate recognition and automatic driver’s license recognition. Both allow permanent and pre-registered visitors to quickly gain access to a community after immediate verification.

Automatic license plate recognition verifies visitors at a community when a license plate is associated with a registered visitor. When an image of the license plate is captured, the plate is cross-referenced with the database of approved vehicles, and the gate opens for permitted guests. Not only does this expedite wait times, but it easily verifies repeat visitors with a high capture of vehicle information to keep the community secure. If a vehicle’s license plate is not recognized, the driver can speak with a virtual guard or gate guard, depending on what the community uses.

Automatic driver’s license recognition easily recognizes verified guests by capturing an image of the name on the driver’s state-issued identification. Typically, drivers insert their license into an ATM-like scanner that will verify the name and automatically open the gate for permitted visitors. If the driver’s name is not recognized, the driver can speak with a virtual guard or gate guard, similar to the process with automatic license plate recognition.

Both types of automated systems also increase the security of a community. With simple tracking and recording of all visiting drivers entering, the community has the capability to recall identification information of guests should a problem ever occur at the gate or in the neighborhood. In addition, a virtual guard kiosk can record the audio of a transaction, and more cameras can capture angles of an entrance for added security.

While every community has different needs and preferences, both automated options are effective and efficient for reducing wait times at a gate. Allowing permanent and pre-registered visitors to have automatic entry expedites the entire transaction process and is easier for the guests, residents, and property managers at the community. Plus, the automation systems keep the entrances secure with a high capture of identification and/or vehicle information. If you have security questions or concerns, please e-mail ask@enverasystems.com.

 

Brie Peterson

Brie Peterson is the Business Development Consultant for Envera Systems. She works closely with the sales and marketing departments to provide best-in-class service to the communities that Envera works with. Envera Systems specializes in security technology systems with remote guards to replace or enhance guards at communities. Contact info: (855) 380-1274 or www.EnveraSystems.com.

 

03Apr 2017

The 2017 Spring Legislative Session: Medications for Community Association Corruption (May Have Serious Side Effects)

Consumer protection for community association members from board or management corruption is the most dominant theme of the pending legislative session. The following is an overview of proposed legislation as of March 29, 2017.

Liability for Directors, Officers, and Management Companies (SB 1682, HB 1237, SB 1258, and HB 1001)

This proposed legislation was prompted by a Grand Jury Report issued after Miami-Dade County State Attorney Katherine Fernandez Rundle investigated complaints of alleged widespread corruption and fraud in condominiums. The controversial Report, released on February 6, 2017, was in response to a multitude of owner complaints of fraud and disenfranchisement. The Report diagnosed the following issues: (1) inaccessible records; (2) association management issues; (3) director conflicts of interests; (4) ineffective enforcement by the Department of Business and Professional Regulation (“DBPR”) Division of Condominiums, Time Shares, and Mobile Homes (the “Division”); and, (5) fraud in Board Elections. Consequently, the Report seeks legislative changes to curtail these issues.

The Report argues that the DBPR is ill-equipped to prevent the recurring problems afflicting associations. Consequently, it seeks a more active role for an already over-worked judiciary and criminal justice system. The Report proposed introducing financial and/or criminal liability for wrongdoing directors, officers, and/or management companies. The resulting outcry from industry professionals and associations includes commentary that the Report is somewhat one-sided, does not give due consideration to DBPR funding issues that impact its enforcement abilities, and makes overly harsh recommendations attacking volunteer directors, which will increase operating costs and dissuade board service. The Report counters that those individuals you want running boards would never engage in criminalized conduct.

SB 1682 and HB 1237 attempt to address the concerns raised by the Report. The main legislative proposals are as follows:

  • Directors can’t serve four (4) consecutive two (2) year terms absent a two-thirds (2/3rds) membership vote approving lengthier service;
  • Expediting recall procedures;
  • Prohibiting dual legal representation of an association and its management company;
  • Prohibiting directors and managers from acquiring foreclosed real estate at a foreclosure sale or through deed in lieu and prohibiting managers from acquiring more than 50 percent of the units or any unit subject to an association lien;
  • Introducing conflict of interest disclosure requirements and preventing associations from dealing with companies owned, operated, or associated with directors or any person with a financial relationship to them;
  • Criminalizing knowing and willful prevention of access to the association’s records and defacement or failure to maintain association accounting records by directors or management companies;
  • Criminalizing knowing and willful fraudulent voting activities in elections;
  • Modifying voting suspension rights for delinquencies by requiring at least $1,000 to be owed and thirty days of notice;
  • Requiring the digital posting of certain records for associations with more than 500 units;
  • Allowing for private sector Division Arbitrators;
  • Bids for materials, equipment, or services are added to the list of records; and,
  • Providing official record access to tenants.

The criminal penalties range from misdemeanors (first to third degree) for repeat failures to provide association records upon authorized request to third degree felonies for election fraud. Regarding conflicts of interest, the proposed legislation overlooks protections already in place for interested director transactions under a theory that permitting any interested director transactions creates a moral hazard—a slippery slope towards corruption.

SB 1258 and HB 1001 (on no committee agendas at present) proposed to establish personal financial liability for directors or officers where the board or the Division determines that the director or officer knowingly violated governing documents or Chapter 718. The director or officer would be personally liable for increasing civil penalties based on the number of offenses. SB 1258 and HB 1001 emphasize deterrents and a Division role, but threaten liability and abuse through board overreach.

In effect, the bills seek to prevent directors from delaying or undermining rights to transparency and self-determination, which protect against abuse. While the bills reflect a positive intention by the legislature to curb abuses, critics assert that these legislative proposals go too far.

 

Protections for Homeowners’ Association Members and Buyers (HB 295)

In the case of HOAs, HB 295 (also not on any agenda) provides that a member denied access to records would be entitled to minimum damages of $500 per day for up to 30 days—a significant increase. This amount was troublesome considering that some members use records requests as a tool to harass. If a community association manager is responsible, the member could maintain a cause of action against the manager; however, manager indemnification of associations is excluded.

The bill eliminates liens for fines in excess of $1,000, modifies triggers for HOA turnover from the developer, and requires sellers to provide governing documents and budgets to prospective buyers at least seven days before closing—coupled with termination rights within three days after receipt, and also would create a cause of action against developers for enumerated grounds.

Lastly, HB 295 would expand the jurisdiction of the DBPR over homeowners’ associations, including the Division arbitration program’s applicability to HOAs, would require DBPR training programs, and would grant the DBPR the authority to enforce compliance with Chapter 720. Given the Report’s perceived funding and enforcement issues with the DBPR, it was interesting that proposed legislation seeks to expand its role while other legislation attempts to increase the role of the criminal justice system in lieu of more robust DBPR enforcement. SB 1650 also would expand Division arbitration for HOAs, bypassing presuit mediation.

 

Regarding Marketable Record Title Act (“MRTA”) Issues (SB 1046 and HB 735)

SB 1046 and HB 735 require mandatory consideration of MRTA preservation issues, mandatory periodic public records disclosures, and provides for a new MRTA preservation procedure.

Amendments and Estate Protections (SB 1186 and SB 950)

SB 1186 intends to change procedures for HOA amendments and incorporate a restriction on the applicability of rental restriction amendments to pre-existing owners who do not consent. SB 950would have protected the estate of a deceased owner from fines, interest, and late fees for certain specified periods.

Regarding Condominium Termination (SB 1520 and HB 7055)

SB 1520 and HB 7055 both enable all homestead owners who reject a plan to receive their original purchase price for their terminated condominium, not just direct purchasers from a developer, and adopt similar changes to the approval / rejection termination thresholds, making termination more difficult.

Estoppel Letters (SB 398 and HB 483)

Both would cap and categorize estoppel letter fees under varying circumstances and require a response to a request for an estoppel certificate within ten business days. They provide for certain mandatory estoppel disclosures, as well as publication of the name and contact information of a designated recipient for requests.

Operational Issues, Including Financial Reporting, Fire Safety Retrofitting, Among Others (SB 744, HB 653, and HB 6027)

Each would require associations with less than 50 units to submit more comprehensive annual financial reports and would eliminate language preventing condominium associations from reducing their financial reporting requirements for more than three consecutive years.

SB 744 and HB 653 have other wide-ranging changes. For condominiums: (1) includes electronic voting records in association official records; (2) clarifies that associations under 75 feet high are exempt from fire sprinkler/life safety retrofitting; (3) extends deadlines to opt out or perform fire sprinkler/life safety retrofitting to December 31, 2018; and, (4) allows meeting notice posting on websites. For HOAs specifically: (1) directors may communicate but not vote on matters via e-mail; (2) overhauls mandatory reserve requirements and voting procedures; (3) allows a developer to waive reserves for an association’s first two fiscal years but prevents waiver thereafter without a member vote; (4) adds language preventing accord and satisfaction in statutorily compliant allocation of payments; and, (5) prohibits write-in nominations where there is no election, unless the by-laws requires them.

Conclusion

Whether ultimately enacted or not, it is clear that the legislature is attempting to curb association abuses of power, create stronger penalties and disincentives to wrongful conduct, and in several cases, to address concerns in the Grand Jury Report. Whether the legislature will fund the criminal justice system or the DBPR to address these abuses is an entirely different story. Without proper funding for enforcement, the legislature may simply be doling out a placebo.

 

David HaberDavid B. Haber is the founding partner with Haber Slade P.A. Haber’s practice includes community association law, real estate, construction, and commercial litigation, and aviation law. His e-mail is dhaber@dhaberlaw.com. Jonathan S. Goldstein is a senior associate attorney with Haber Slade P.A. Goldstein’s practice includes community association law, real estate, construction, and commercial litigation. His e-mail is jgoldstein@dhaberlaw.com. Alexander G. Leon is an associate attorney with Haber Slade P.A. Leon’s practice includes community association law, real estate, construction, and commercial litigation. His e-mail is aleon@dhaberlaw.com. This article is for informational purposes and should not be taken as legal advice.

 

03Apr 2017

Improper Hard Flooring Not Protected by Selective Enforcement or Waiver of Defenses

It is not uncommon for an association to have flooring restrictions to protect downstairs unit owners from excessive noise. Can a unit owner claim selective enforcement if an association only seeks to enforce the rules against the upstairs unit owners? What if the association’s president says it is “ok?” Maybe the flooring will still have to be ripped up!

In a case hot off the presses, a Florida appellate court just concluded that an association did not selectively enforce or waive its flooring restriction. In Laguna Tropical v. Barnave, No. 3D16-1531 (Fla. 3rd DCA, January 25, 2017), a unit owner replaced her carpeting with laminate flooring. The following year, the resident below the owners’ second story unit complained about noise and asked the association to enforce the Declaration, which prohibited an owner from altering, modifying, or replacing the interior of a unit without the consent of the association and to enforce a rule providing that only carpeting shall be installed in the units.

Following an unsuccessful arbitration effort, the association filed suit against the owner to enforce the flooring restrictions. The trial court agreed with the owner’s defense of selective enforcement and granted judgment for the owner.

The Florida appellate court reversed the judgment and returned the case to the trial court for enforcement of the Declaration against the owner. The court noted that of the condominium’s 94 units, 11 were only upstairs units, 11 were downstairs units, and the remaining 72 units included first and second floor space within the same unit. The configuration was important to the selective enforcement defense because owners of two story units who installed hard flooring upstairs would not have complained about their own flooring.

Although the owner argued that the association only enforced the flooring restriction against 11 of the units, the appellate court noted that these 11 units were exclusively upstairs units. There was no evidence that occupants of the 72 upstairs-downstairs units ever complained to the association about the noise. There were only a “handful” of noise complaints by downstairs-only owners that led to successful enforcement by the association, which included either replacing the tile or wood flooring. Additionally, the court commented that there was no evidence that the association refused to enforce a noise complaint regarding a downstairs-only unit.

“In the present case, the prohibition on floor coverings other than padded carpet is plainly intended to avoid noise complaints,” the court stated. The court concluded that no selective enforcement was proven since there were no complaints regarding any units except for units like the owner’s second-floor unit.

In a second issue, the owner alleged that the association’s president e-mailed that it was ok to install the flooring. The court determined that the owner could not reasonably rely on the president’s e-mails. Why? Because the Declaration required alterations to be approved by the board of directors, no one officer could provide the approval.

This decision should help Florida community associations. To begin with, the case reinforces that owners have to prove their defenses. Second, it appears that for restrictions that protect neighboring owners from nuisances such as noise, if there is no complaint, then the association may not have to enforce the rule. Third, at least under these facts, there is a limit to owner reliance on unauthorized e-mails. However, it would appear that the selective enforcement holding is limited to those rules that protect others and may not apply to general restrictions that impact the community at large such as those rules regarding uniform appearance.

Death Liability in Suit Despite Employer’s Workers’ Compensation Coverage

Taking inconsistent positions or even making unclear statements after a claim was filed, may curtail a Florida association’s defense in a lawsuit. The facts in Gil v. Tenet Healthsystem North Shore, Inc., 41 Fla. L. Weekly D 2567 (Fla. 4th DCA, November 2016) arose in a hospital but could just have easily occurred in a Florida community association.

Rafael Gil apparently was exposed to hazardous materials while working as a carpenter for North Shore Medical Center. After Gil died, his wife filed a claim with the hospital for workers’ compensation benefits. The hospital denied her claim on the basis that Mr. Gil’s employment was not the “major contributing cause for his death.”

Mr. Gil’s wife then filed a wrongful death action against his employer, the hospital. The hospital maintained that no lawsuit could be filed because Mr. Gil’s wife’s exclusive remedy was through the workers’ compensation process. The lower court agreed and granted summary judgment for the hospital.

The Florida appellate court disagreed, reversing the decision of the trial court. The appellate court explained that if an employer claims that an employee is not entitled to workers’ compensation benefits because “the injury did not occur in the course and scope of employment, or that there was no employment relationship” the employer cannot claim immunity on the grounds that “the worker’s exclusive remedy was workers’ compensation.” The issue in this case was whether the hospital took inconsistent positions.

The court pointed out that the language used by the hospital in its notice to Mr. Gil’s wife regarding the denial of benefits was ambiguous. Therefore, there was a factual issue of whether the hospital was prevented from claiming immunity from a lawsuit.

“In the present case, if the hospital merely intended to allege the medical causation defense, it did not do so clearly,” the court explained. “Here, the notice of denial did not indicate there was a compensable injury, and instead generally provided that the entire claim [was] denied because claimant’s ‘employment’ was not the major contributing cause for his death”

The lesson to be learned is that in trying to avoid responsibility for insurance claims in the short run may not work in the long run. As soon as an association receives a claim, you should contact your association’s attorney and if there is an employee claim of injury then normally also contact your worker’s compensation carrier. This case also serves to remind associations to take care drafting contracts to properly address insurance requirements, not just assuming coverage exists “because it should.”

 

Get Ready, Get Set, Do Not Go!

The Florida Legislature Readies for 2017

It is time to gird for battle! Legislators and lobbyists are flooding into Tallahassee. The state is in a state!

At this time of year Florida community associations and their members warily watch for new legislative initiatives. It is too early to anticipate what, if any proposals that affect community associations will become law. Nevertheless, in advance of the March call to order for the Florida legislative session, legislative committees are scheduling and holding hearings.

Issues of all types are being pursued—HOA regulation, confirming condominium sprinkler retrofit requirements and providing for some extensions, and setting requirements for estoppel letters.

Bills that could affect Florida community associations if they become law include the following (“HB” means House Bill; “SB” means Senate Bill):

Homeowners Associations. HB135. For communities containing 7,500 or more parcels, election procedures are sought to be changed.

Homeowners Associations. HB137 would require disputes concerning many homeowners’ association issues to be sent to the Division of Condominiums pre-suit binding arbitration program.

Vacation Rentals. SB188, HB425, HB603 seek to prevent counties and municipalities from regulating “vacation rental.”

HOA Regulation. HB295 seeks to extend the Division of Condominiums, Time Shares, and Mobile Homes jurisdiction to include homeowners’ associations for arbitration of administrative issues including records inspections and allowing the levy of damages for delays in production.

MRTA. SB318 seeks to revise the Marketable Record Title Act to except

homeowners’ associations from the law extinguishing covenants.

Estoppel Letters. SB318, SB398, and HB433 seek to address the timing to provide, the effectiveness of, and charges for estoppel letters, including requiring letters being issued within ten days of the receipt of a request, and allowing requests by e-mail.

Claims. HB377 and SB 204 seek to limit the statute of limitations, the time period in which claims can be brought, against architects and professional engineers.

Community and Cooperative Associations [bill number pending] seeks to clarify retention of official records, limiting the requirement to hold bids to one year, expanding election records to be obtained to include electronic records and for condominiums to clarify that records are to be provided within ten working days, rather than five. For condominiums extending the time for sprinkler retrofit opt-out and to reinforce that buildings under 75 feet or less are not required to take an opt-out vote. Bulk buyer exemptions are extended indefinitely.

Construction. It is rumored that two bills are in drafting to clarify and improve the process for notifying contractors of construction information to reduce the potential of contractor liens.

Keep “tuned in” for more information as it arrives.

Michael J. Gelfand, Esq., Senior Partner of Gelfand & Apre, P.A.

 

Michael GelfandMichael J. Gelfand, the Senior Partner of Gelfand & Arpe, P.A., emphasizes a community association law practice, counseling associations and owners how to set legitimate goals and effectively achieve those goals. Gelfand is a Florida Bar Board-Certified Real Estate Lawyer, Certified Circuit and County Civil Court Mediator, Homeowners Association Mediator, an Arbitrator, and Parliamentarian. He is the Chair of the Real Property Division of the Florida Bar’s Real Property, Probate & Trust Law Section, and a Fellow of the American College of Real Estate Lawyers. Contact him at michael@flcaj.com or (561) 655-6224.

03Apr 2017
property insurance

Gotta have it…Sooo $$$ expensive but terrified to use it: Property Insurance

Most board of directors know they must have property insurance. Most associations buy property insurance. However, most communities don’t know what their “policy” covers. Even though property insurance is purchased to insure and protect us in the event of damage, most boards (and most people) are terrified of making even a single insurance claim. There is a fear that the insurance company will triple our premiums or even drop us from coverage. These are myths our insurance companies want us all to believe.

This article addresses fact from fiction and makes a complicated process a little easier to understand. It is important to ensure your association receives all the money it is legally entitled to receive when something unexpected happens to your association’s property and your association is left with the bill.

 

Will Our Rates Increase? Will My Condominium or HOA be Dropped from Coverage if We Make an Insurance Claim?

My clients over the last 28 years have repeatedly told me they are petrified of making an insurance claim for fear of rate increases or being dropped. Condominium and HOA insurance claims are different. First, in the event of a named storm (the 2017 hurricane season starts again next month!) insurance companies cannot discriminate against you, raising premiums or dropping coverage, for making an insurance claim. Rates are determined on geography and other factors, not whether you made a claim to have your roof replaced! Further, if they drop you, they are pulling out of the area whether you made a claim or not.

It is purposeful that insurance companies want you to believe they determine your car insurance premiums the same way as your condominium, HOA, townhome, or cooperative. It’s not! Don’t fear repercussions from insurance companies. It’s an urban myth. Florida law protects us from unfair insurance practices.

An insurance company does not determine your rates based upon a single claim. Instead, an insurance company takes into consideration numerous factors in determining rates: age of building, type of construction, cost to rebuild, proximity to the ocean, location within the state, etc. All of these factors come into play, not just whether you made a claim. Further, in the event of a hurricane or when a state of emergency is declared additional community association property insurance protections are mandated.

Keep in mind that a property insurance policy is purchased to provide a sense of security to the insured. In the event of a covered claim, the insurance company must pay for the resulting damages. If a community has property insurance, the members of the association should absolutely not bear the cost to repair property damage which should be covered by insurance. If you are unsure whether the property damage may be covered under a property insurance policy, you should consider contacting an experienced first-party property lawyer.

 

What is Covered under a Property Insurance Policy?

A community association property insurance policy (“policy” is a friendly way to say insurance contract”) typically covers damages as a result of unexpected events. The coverage available under property insurance policies depends upon the language in your insurance contract. Mostly, association insurance contracts are divided into two categories: (1) named perils and (2) all-risks.

As the name indicates, a “named perils” policy provides coverage only for those perils or causes of loss listed in the policy. Examples of covered perils include fire, lightning, windstorm, hail, and smoke. In contrast to a “named perils” policy, an “all-risks” policy covers all perils or causes of loss not specifically excluded or limited by the policy. Do you know what type of policy your community has?

 

“First-party” property claims.

You may have heard others use the term “first-party” property claim. This simply refers to a claim by an insured for property damage under its property insurance policy. Common insurance claims include damages caused by hurricanes, tornadoes, rain, high winds, hail, flood, storm surges, fire, water bursts, and many others.

 

Do I have a “first-party” property claim?

For the most part, your community will know or learn when they have property damage. For instance, in October last year, many condominium associations on the east coast were smashed by Hurricane Matthew. My personal house was significantly damaged. I made an insurance claim. They paid, my premiums were not raised, and my coverage was not dropped.

There may also be damage that was unknown for some period of time; that does not mean insurance will not cover those damages. An experienced first-party property damage lawyer or public adjuster are best suited to conduct an investigation of the damages, determine the covered cause of the damages, and present the claim to the insurance company. Please do not simply rely upon the insurance company’s “Independent Adjuster”, they are almost exclusively hired by the insurance company. “Independent.” No way. Please get a second opinion on the amount and cause of your damages.

 

Whose insurance applies?

Another issue an association faces when there is property damage is whose property insurance policy applies? This is where association’s declarations come into play. The declarations dictate what coverage the association must buy versus what an owner should have.

For instance, a condominium’s declaration may require the association to buy a property insurance policy which covers only the common elements. Common elements include the drywall inside the unit but not the wall coverings (e.g., paint, wallpaper, etc.). So, if there is a covered loss which causes damage to the interior of a unit, the covered damages under the condominium’s property insurance policy will differ from a unit-owner’s property policy.

 

Delay, denial, or underpayment – an Insurance company’s “Bad Faith”.

Insurance companies want to be perceived as having your interests as paramount. “You’re in good hands with Allstate.” “Nationwide is on your side.” “Like a good neighbor, State Farm is there.”

Yet, the reality is insurance companies are businesses, and all businesses are concerned about profits. As such, insurance companies may instruct their adjusters to deny claims even though the claim may be covered, pay as little as possible for covered claims, or even deny paying claims all together.

The Florida Legislature has recognized this conflict of interest between insurance companies and insureds and has set forth standards for an insurance company to act in “good faith.” For instance, an insurance company must adequately and timely adjust a claim and must settle claims in “good faith.”

Instead of quickly resolving a “first-party” claim, all too often insurance companies delay their investigation only to later issue a denial or underpay the claim. These “bad faith” tactics are what the Florida Legislature sought to abolish, but insurance companies still act this way in the name of corporate greed and profits. Please consult with your lawyer or obtain a qualified independent second opinion to protecting the interests of your community.

Fearing your insurance rates will be tripled or dropped is simply not true. Buckle up, batten down the hatches, and have your community association lawyer on speed dial.

 

alan garfinkel Alan Garfinkel has counseled homeowners, townhomes, condominium associations, and individuals throughout Florida from his same Central Florida office for 25 years. He continues to passionately work for those living in and working for community associations. Garfinkel received the highest ethics rating (AV) for more than a dozen consecutive years. Attorney peer review ratings provide objective grades based on confidential evaluations by attorneys and judges measuring a lawyer’s ethical standards and legal ability. Garfinkel Whynot only represents community associations, not big corporations like developers, banks, and insurance companies that can develop conflicts with communities. For more information, visit www.MyGWLaw.com.

 

03Apr 2017

 

Q Our HOA board has solicited a vote of the membership to amend our covenants to add the following provision: “Meetings or gatherings of six or more people may not occur in a house more than one time in a 30-day period.” Additional ‘meetings’ would require board approval. The board said we need to pass this amendment to prevent a house in the community from being used as a sober home, but, it sounds like they want to dissuade lawful assembly. Would the above be legal?

A I can think of a number of problems with the proposed amendment. First, it is unlikely to be effective for its intended purpose. Courts have ruled that the rights of persons to live in group homes may be protected by the Fair Housing Act’s prohibition against discriminating against disabled persons. The fact that the rule or covenant is not expressly directed against group homes is not going to save it from the Fair Housing Act. Disabled persons are entitled to accommodations of housing provider covenants, and your “meeting” rule would be no different. So called “sober” homes have become a significant concern in HOA communities throughout Florida, and I have seen a number of creative attempts to protect communities from them, but all of the options are currently speculative at best.

Second, I wonder if the covenant, as broadly as it is worded, would survive judicial review in the first place. It’s true that amendments to covenants are afforded a broad presumption of validity, and are rarely invalidated—but in this case, I agree with you that the covenant bumps up against not only your basic right to freely associate, but also conflicts with other easements that likely already exist in your covenants (such as the rights of owners to have guests, and to have their guests cross the common area roads). Further, your board has already strongly suggested that it intends to arbitrarily enforce the rule by offering owners an exception to the limitation with board approval. Obviously, this is intended to allow them to prohibit sober homes while offering owners exceptions so that they can maintain normal guest access. If the covenant isn’t invalidated outright as being arbitrary in its application, the actual arbitrary exceptions are going to create a selective enforcement defense that will prevent the HOA from enforcing the rule against sober homes.

Also, what about homes where six or more people are permanent residents? Why would that not be considered a meeting that would violate the rule? I suspect that you are paraphrasing the rule a bit, but if it’s as simple as you’ve made it out to be, I don’t see it having very much effect. Your owners should also consider whether the fear of sober homes is worth approving a very significant restriction on the rights of all owners to have guests visit their home.


 

Q We were planning on remodeling our kitchen in our condominium unit in March. However, we were told by the condominium president that this work can’t be done in season. Unfortunately, all my condominium documents, including the bylaws, are in my house up north. I have borrowed someone in the building’s documents, and I can’t find anything in them regarding when you can do improvements to your unit. The only thing I found is the hours work can be done.

I have addressed this with the president of the association, and he said his bylaws are in his home up north, but he insisted that you can’t do work in season. He suggested that I do the work in the summer or fall. But, I only spend about four months here, and I do not come back in the summer or fall. I want to be respectful of condominium rules, and if this is indeed a rule I just want to see a copy. I’ve asked a few of the condominium owners and no one seems to have a copy of this rule.

 

A The president and others have referred to this rule as being part of the bylaws, but that is unlikely. Bylaws usually deal with corporate governance, whereas a rule restricting the use of your unit is more likely to be found in the declaration of covenants, or in the rules and regulations passed by the board of directors. Either way, though, I do think a covenant or rule restricting when you can remodel your unit is likely to be enforceable (covenants are afforded a broad presumption of validity, whereas board-made rules must pass a reasonableness test). These rules are fairly common in condominiums populated by snowbirds, particularly because people only spend a few months in their units, and they want to be free of construction noise during their vacations.

As for seeing a copy of the rule, every condominium in Florida, even smaller ones, are required to maintain certain official records, including a copy of the governing documents. If you make a written request to see these documents, the board is obligated to allow you to inspect them within ten business days. If they do not, you can file a complaint with the Division of Condominiums, which has the authority to order the association to provide the records, and to award you up to $500 in damages.

 

Ryan D. Poliakoff is a Partner of Backer Aboud Poliakoff & Foelster and serves as general counsel to condominiums, homeowners associations, and country clubs throughout South Florida. He is the co-author of New Neighborhoods—The Consumer’s Guide to Condominium, Co-Op, and HOA Living. In addition to representing associations, he is a frequent contributor at seminars and workshops for attorneys and board members, and he has written hundreds of articles for magazines and newspapers throughout the United States. He can be reached at rpoliakoff@bapflaw.com. For more information about his firm, visit www.bapflaw.com.

 

21Feb 2017
Absolute Patio

 

Whenever outdoor patio furniture becomes worn or outdated looking, people usually assume that they have one option, which is to buy new furniture. Many people are not aware that restoring their existing patio furniture is not only possible, but it also offers many benefits. It is a green process, which will save you money while also saving the environment. If your existing furniture is in good structural condition, it can be refinished to a like-new condition.

One great reason to keep your current patio furniture is because purchasing new furniture of the same quality is much more expensive than simply refinishing it. By refinishing your current chairs, lounges, and tables, you are able to keep your current outdoor patio furniture, save lots of money, and customize your patio furniture with a large selection of fabric and color choices. This allows the customer to customize their restoration to fit with their existing décor to create an overall coordinated look. The flexibility and performance of powder coating makes it a great choice for any metal restoration project. The following is a description of the methods used in the furniture restoration process.

What Is Powder Coating?

Powder coating is an advanced method of applying a decorative and protective finish to a wide range of materials and products that are used by various industries and consumers. The powder used for the process is a mixture of finely ground particles of pigment (color) and resin (protective finish), which is sprayed onto the surface to be coated. The materials to be coated are electronically grounded to attract the charged particles that adhere to the surface. After being heated in a curing oven, the powder fuses into a durable and protective coating. The result is a uniform, high quality, and attractive finish. Powder coating is the fastest growing technology in North America, providing numerous industrial applications in all form of materials and products. Powder coating is extremely beneficial when applied to outdoor furniture because of its excellent exterior performance.

The Process—Restoring Outdoor Patio Furniture

Patio furniture restoration involves re-slinging, re-strapping, and refinishing the furniture’s frames. The restoration process includes completely stripping off the old, dull finish by sandblasting with aluminum oxide. The metal surface is then pre-treated with a five-stage chemical pretreatment process. This properly prepares the patio furniture for the powder coating application. The powder is sprayed onto the metal surface of the furniture that is then baked in an industrial oven to cure the powder to a beautiful, long-lasting, final finish.

Since all of the furniture that we restore is in South Florida, the most corrosive environment in the world, we add an additional epoxy powder primer coat. This provides an extra layer of corrosion protection and is very rarely found on an original coating. Once the powder coating process is completed, the new straps or sling materials are installed along with any protective foot glides to protect flooring. As you can see from the photos, the complete restoration process—involving sandblasting, chemical pre-treatment of the base metal, and applying a durable, baked-on, powder coat finish—can be quite amazing.

Benefits of Restoration

Powder coating finishes are available in many colors and textures that are perfect for outdoor patio furniture applications. Since the finish is a baked-on process, powder coated finishes are typically more durable than a liquid paint application and are chip- and scratch-resistant. Being that patio furniture is outside, and exposed to the sun and other weather elements, powder coated finishes are by far the best selection. New finishes can be coordinated with hundreds of sling fabric, strapping, and outdoor cushions as well. For a fraction of the cost, restoration offers you the ability to completely update your décor. Below are just a few more benefits of using powder coating for the finishing process of your patio furniture restoration: 

  • Custom color options—high/low gloss, metallic, textured, and clear finishes
  • Texture selection—smooth, matte, veins, hammertones, and textures to hide surface imperfections
  • Durability—extends product life by providing excellent resistance to corrosion, rust, and fading
  • Environmentally friendly—emits no VOCs and eliminates recycling
  • Superior protection—compared to standard paint finishes
  • Save money and time—no shipping, disposal, or replacement costs of your old furniture

Is Your Property a Candidate for Restoration?

Condominiums, country clubs, and HOAs with old and worn patio furniture should consider a powder coating restoration process instead of taking on the greater expense of furniture replacement. If the finish on the frames is still in great condition, than simply re-strapping or re-slinging is also an option. If your furniture is in good structural condition and only requires some minor welding repairs, then your furniture is a great candidate for restoration. You can completely update the look of your furniture and save your property a lot of money at the same time!

 

 by Tammy Leeman
Absolute Patio Furniture Restoration is located in Pompano Beach, Florida. For more information, call (954) 917-2715 or visit www.absolutepowdercoat.com.

25Jan 2017

 

In June of 2015, The Florida Supreme Court decided what a licensed community association manager can do, without being accused of practicing law without a license. The truth is—The Florida Bar tried hard to curtail what community association managers can do without a license to practice law, while the community association managers argued that most tasks required of community association managers certainly do not require three years of law school and passage of the Bar exam.

While the attorneys and managers who work with community associations may have made themselves familiar with the opinion, many Board members remain ill advised, and as a result continue to ask their manager to perform tasks that they’re not allowed to perform. In addition, they may wrongfully believe that their attorney needs to be more involved than necessary.

Here is how The Florida Supreme Court ruled:

The Court first spoke about what generally is considered the practice of law and said:

In determining whether the giving of advice and counsel and the performance of services in legal matters for compensation constitute the practice of law it is safe to follow the rule that if the giving of the advice and performance of the services affect important rights of a person under the law, and if the reasonable protection of the rights and property of those advised and served requires that the person giving such advice possess legal skill and a knowledge of the law greater than such possessed by the average citizen, then the giving of such advice and the performance of such services by one for another as a course of conduct constitutes the practice of law.

The practice of law also includes the giving of legal advice and counsel to others as to their rights and obligations under the law and the preparation of legal instruments, including contracts, by which legal rights are either obtained, secured or given away, although such matters may not then or ever be the subject of proceedings in a court.

Upholding a prior 1996 decision in all respects, The Florida Supreme Court again found the following activities when performed by a CAM to constitute the unlicensed practice of law:

  • Completing the frequently asked question and answer sheet;
  • Drafting a claim of lien, satisfaction of lien, and notice of commencement;
  • Determining the timing, method, and form of giving notice of meetings;
  • Determining the votes necessary for certain actions, which would entail interpretation of certain statutes and rules; and
  • Answering a community association’s question about the application of law to a matter being considered or advising a community association that a course of action may not be authorized by law, rule, or the association’s governing documents.

On the other hand, the 1996 opinion found the following activities not to constitute the practice of law:

  • Completion of the change of registered agent form and annual report form;
  • Drafting certificates of assessments;
  • Drafting first and second notices of date of election;
  • Drafting ballots;
  • Drafting written notices of annual or board meetings;
  • Drafting annual meeting or board meeting agendas, and
  • Drafting affidavits of mailing.

The 1996 Court opinion found the following activities to be dependent upon the specific circumstances:

  • Modification of limited proxy forms promulgated by the state;
  • Drafting a limited proxy form;
  • Drafting documents required to exercise the community association’s right of approval or right of first refusal on the sale or lease of a parcel.

The 1996 Court opinion found the following to be ministerial and could be performed by a CAM:

  • Modification of a limited proxy form to include the name of the community association;
  • Phrasing a yes or a no voting question concerning either waiving reserves or waiving the complied, reviewed, or audited financial statement requirement;
  • Phrasing a yes or a no voting question concerning carryover of excess membership expenses; and
  • Phrasing a yes or a no voting question concerning adoption of amendments to the Articles of Incorporation, Bylaws, or condominium documents;
  • The Court also found that the drafting of documents required to exercise a community association’s right of approval or first refusal to a sale or lease may require the assistance of an attorney, since there could be legal consequences to the decision.

The Court then went on to address 14 additional activities that community association managers typically perform. Here they are:

  1. Preparation of a Certificate of Assessments due once the delinquent account is turned over to a lawyer;
  2. Preparation of a Certificate of Assessments due once a foreclosure of the unit has commenced;
  3. Preparation of Certificate of Assessments due once a member disputes in writing to the association the amount alleged as owed;

HOLDING—preparation of each of the three documents do not constitute the practice of law.

  1. Drafting of amendments (and certificates of amendment that are recorded in the official records) to declaration of covenants, bylaws, and articles of incorporation when such documents are to be voted upon by the members;

Holding—the preparation of these documents constitute the unlicensed practice of law

  1. Determining the number of days to be provided for statutory notice

Holding—if the determination of the number of days to be provided for statutory notice requires the interpretation of statutes, administrative rules, governing documents, or rules of civil procedure, then, it would constitute the unauthorized practice of law for a CAM to engage in this activity. If the determination does not require such interpretation, then it would not be the unlicensed practice of law.

  1. Modification of limited proxy forms promulgated by the state;

Holding—If there is no discretion regarding the wording, and it is a yes or no question it is not the unauthorized practice of law. However, if the question requires discretion in the phrasing or involves the interpretation of statute or legal documents, the CAM may not modify the form.

  1. Preparation of documents concerning the right of the association to approve new prospective owners;

Holding—if the preparation requires the exercise of discretion or the interpretation of statutes or legal documents, a CAM may not prepare the documents. For example, the association documents may contain provisions regarding the right of first refusal. Preparing a document regarding the approval of new owners may require an interpretation of this provision. An attorney should be consulted to ensure that the language comports with the association documents. On the other hand, the association documents may contain a provision regarding the size of pets an owner may have. Drafting a document regarding this would be ministerial in nature as an interpretation of the documents is generally not required.

  1. Determination of affirmative votes needed to pass a proposition or amendment to the recorded documents;
  2. Determination of owners’ votes needed to establish a quorum;

Holding—if these determinations require the interpretation and application of statutes and the community association’s governing documents, then this would constitute the unauthorized practice of law. If no interpretation is required—they would not.

  1. Drafting of pre-arbitration demand letters;

Holding—this task is ministerial in nature and is not considered the unauthorized practice of law.

  1. Preparation of construction lien documents (e.g., notice of commencement and lien waivers, etc.);

Holding—This is a very complicated and technical area of the law—Preparation of these documents would constitute the unlicensed practice of law.

  1. Preparation, review, drafting, and/or substantial involvement in the preparation/execution of contracts, including construction contracts, management contracts, cable television contracts, etc;

Holding—Preparation of these documents constitute the unlicensed practice of law.

  1. Identifying, through review of title instruments, the owners to receive pre-lien letters;

Holding—if the CAM is only searching the public records to identify who has owned the property over the years, then such review is ministerial in nature and not the unauthorized practice of law. In other words, if the CAM is merely making a list of all record owners—no violation. If however the CAM uses the list and then makes the legal determination of who needs to receive the pre-lien letter, this would constitute the unlicensed practice of law because it involves an analysis as to who must receive the letters.

  1. Any activity that requires statutory or case law analysis to reach a legal conclusion.

Holding—It would constitute the unlicensed practice of law for a CAM to engage in activity requiring statutory or case law analysis to reach a legal conclusion.

Regardless of what you think of the decision—CAMs are well advised to abide by it or face the risk of being charged with the unauthorized practice of law and face a host of possible penalties. Not only should CAMs be careful, but Board members need to understand the decision of the Florida Supreme Court just as much as the managers do—and make sure not to ask your community association manager to take the role of the association’s attorney. By doing so, you place the manager in the difficult position of saying “NO” in order to comply with the law, while simultaneously looking like they refused to perform a task asked for by their employer.

Board members, managers, and attorneys should work together to familiarize themselves with the above opinion. Board members should be careful about asking managers to do tasks that could place their manager in jeopardy of being accused of practicing law without a license. Managers should know their limitations and that their license is on the line if they go too far, cross the line and practice law, even if their intentions were simply to be helpful and save the association money on attorney’s fees. Attorneys should also know that their help is not needed for everything, but instead primarily for interpreting the governing documents, the Florida Statutes and for preparation of documents that wind up getting recorded in the public records. The bottom line is that effective communication among everyone ensures proper distribution of required tasks and minimizes the risks that the above opinion is not complied with.

 

eric glazerEric M. Glazer is a native of Brooklyn, New York Mr. Glazer obtained his B.A. in Political Science at New York University. While at N.Y.U., Mr. Glazer was employed in the Kings County District Attorneys Office. Mr. Glazer obtained his Juris Doctorate at the University of Miami School of Law. In 1994 he established his own law office in Aventura and has recently relocated to Hollywood. Mr. Glazer has represented hundreds of community associations in the South Florida area. More info can be found at his website.

25Jan 2017
Envera gate

 

You don’t have to be in this industry to know that gates and barrier arms get hit a lot. More than a lot. Whether you live in a gated community, visit friends or family that do, or just pass by, the damage is hard to miss when it happens.

Often times the gate was hit by a tailgater. It’s possible the driver didn’t know how to get in and thought he or she could follow closely behind someone else. Of course though, the driver didn’t make it. It could have also been that the entrance to the community wasn’t lit well at night, and the driver didn’t see the barrier arms as he or she turned in. Either way, it only gets worse when that driver took off, and now the community is left with the costs.

To try and solve the initial problem, it is important that a community has the appropriate barrier arms or gates installed. For instance, if the entrance is rather dark at night, consider LED barrier arms. Envera Systems installs these arms that are red when closed and green while opening. The arms illuminate the gated entry and make drivers more aware of it.

A second option is high-speed barrier arms, which close faster after one car has driven through. The abrupt closure of the arms can stop tailgaters before they have a chance to speed through. Another way to stop tailgaters is to have barrier arms installed in front of a gate. This method allows one car to drive through while the barrier arm is open, then it will close with that car between the arm and gate. Once the arm is closed, the gate will open, and the single vehicle is let through. This is a very effective method for preventing tailgating.

However, it is almost inevitable that a community’s gates or barrier arms will be damaged at some point though. That is why it’s important to have proper surveillance in the area. With the Envera Virtual Gate Guard system, accompanying cameras capture multiple angles of a community’s entrance. Plus the driver’s face is captured at the patented kiosk, and license plate cameras capture the license plate of each driver. This means vehicle owner information can be provided to a community when damage occurs, and the community can use the information to try and recoup damage costs.

To have the most secure solution, a combination of gates and/or barrier arms and some sort of surveillance is best. All of the previously mentioned options can work well with the right community, but every community is unique. That is why it is important for communities to talk with security professionals. With the right company, an appropriate system can be designed to match a community’s specific security needs. In this case, it can be better determined which method is most likely to stop a tailgater for that community, as well as how it will be taken care of when it does happen.

 

Brie PetersonBrie Peterson is the Business Development Consultant for Envera Systems. She works closely with the sales and marketing departments to provide best-in-class service to the communities that Envera works with. Envera Systems specializes in security technology systems with remote guards to replace of enhance guards at communities. Contact info: (855) 380-1274 or www.EnveraSystems.com.

25Jan 2017

 

When I arrived on the property, I knew ahead of time that the customer was extremely unhappy with their new paving project. I knew that they had tried to make amends with the contractor, and the contractor tried to make them happy but was failing miserably. I also knew what their RFP (Request for Proposal) was, and what I seen on property told me they got exactly what they paid for.

As with most communities, the board decided to go with the lowest bidder, and no one thought to ask why they were almost half the cost of the second lowest bidder, but they did note that he was a really nice guy! If I could have $100 for every time a board told me that a contractor “seemed like a nice guy,” I would be a millionaire!

The RFP the community sent out did not clarify whether or not they wanted to mill out the existing asphalt cap or just pave right over it. Even before seeing the pictures of the previous asphalt cap, I would have recommended that the community remove the existing asphalt cap strictly because of the concrete curbing and gutter that separated the parking stalls from the roadway.

The second hint that I would have milled out the old asphalt was a doorway that led to the trash dumpster. Nobody thought about it prior to paving but when the contractor raised the asphalt cap 1” he prevented the door from opening. When the board addressed the problem with the paving contractor, they jumped right on the problem and ground out the new asphalt to allow for the door to open all the way! YAY! No.

When they took out the asphalt from in front of the doorway only, they created a ponding area that now held water if it rained. Not only did it hold water, it also posed as a trip hazard for anyone trying to navigate their way into the doorway! Definitely not the solution the community was hoping for!

In addition to the standing water issue by the doorway, the community was starting to notice that the new asphalt was starting to “spall” or come up when the residents were backing out of their parking stalls. They notified the contractor of the issue and the contractor came out and laid new asphalt on top of the weakened, spalled areas and called it a day. When the board arrived to view the correction, they were mortified to see that although the thin areas were corrected, they now had large black repairs on top of the new pavement and it looked horrible! The contractor’s corrections were making their property look worse than it did before the new overlay!

It’s great that we can copy and paste a paving specification from one document to another but not understanding what we are requesting can lead you down the wrong path twice! Make sure that when you are looking at paving bids that they take note of difficult areas like doorways, access ramps, manhole covers, and hardscapes. Without taking these things into consideration, you might be paying for something you don’t want or worse, paying for something you requested but not something you wanted!

 

connie lorenzAsphalt Restoration Technology Systems, Inc. (AR Tech) has been established in Florida since 1993. Connie Lorenz is President of AR Tech and has been with the company since 1999. Her leadership, skills and classes have taught thousands of consumers about proper asphalt maintenance and has helped save them thousands of dollars, and she has become an advocate in the industry focusing on protecting homeowners, property managers, and owners from the downfalls of questionable contractors and improper techniques. For more information, visit www.asphaltnews.com.

16Nov 2016

hug

 

Now is the time of year to reflect on the things and people for which we are grateful. Residents and directors of community associations could add to their “I am grateful for” list the managers who serve them and their associations.

 

Here are some of the reasons why:

Managers assist directors in handling hundreds of thousands up to millions of dollars worth of property. You warn directors who are about to make wrong decisions in managing those pricey assets. How hard it must be for you to watch directors make costly mistakes. Thank you for patiently working with directors to undo the damage.
 
Managers understand the documents and requirements of the law. Thank you for all the times you tell directors to get legal opinions before they proceed with an uncertain course of action. Whoa to the board who is too cheap to spend the money for attorney’s fees or that does not heed the advice of counsel.
 
Managers are bound by their license to be certain all the association funds are placed in the proper accounts. Thank you for all the times you keep the board from making terrible mistakes when they wanted to “move” money around from reserves to the operating account.
 
Managers have to look to the future and anticipate capital expenditures for balcony and concrete restoration. Thank you for the manager who will only work with an association whose reserves are fully funded.
 
Managers deal with people, pets, parking, and the pool all day long. Thank you for being a therapist, veterinarian, and parking and pool monitor.
 
Managers understand that rules enforcement is part of living in a community association. Thank you for reminding residents and directors that enforcement of violations is in the course of business and is not to be taken personally.
 
Managers know it is wise to move quickly to foreclose a lien or sue a resident for a rules violation. Thank you for stepping in and doing the hard work so residents do not lose the enjoyment of living in their communities.
 
Managers have residents call them all times of the day and night when they should be calling the police or locksmith. Thank you for all the times you answered your telephone and helped even when it wasn’t in your contract or job description.
 
Managers work hard during the off season to maintain the common area so residents’ investments will increase. Thank you for being able to come home to a beautiful community every fall.
 
Managers have to learn conflict prevention and negotiation skills. Thank you for the times you did not yell back at a resident who was having a bad day.
 
Managers take 20 hours of classes every two years to keep up with the new laws and changes in their industry. Even though we miss you when you are gone, thank you for keeping yourself current on community association management.
 
Managers know that with each election of directors, their contracts could be cancelled. Thank you for not bailing out on us when your future seemed uncertain.
 
Managers go over and above the requirements of exercising due professional care by taking a personal interest in our associations. Thank you for your good will and devotion to our community.
 
Managers interview and consult with experts, engineers, contractors, vendors, attorneys, and accountants. Thank you for doing that for us so we can enjoy the pool, golf course, clubhouse, and tennis courts.
 
Managers know how to compare apples to apples and oranges to oranges. Thank you for all the money you save us by your reviews and recommendations of our insurance policies and lawn maintenance contracts.
 
Managers know all the dates required by law for board meeting notices, recall procedures, and annual elections. Thank you for reminding us of those so we stay out of court.
 
Managers know and love their residents and take a special interest in them. Thank you for calling me about my mother and letting me know she wasn’t doing well so I could come help her.
 
Managers understand budgets, reserves, financials, and the difference between “fully funded” and “fully funding.” Thank you that we can depend on you and don’t have to know about such things.
 
Managers can often quote the statutes and documents verbatim. Thank you that we don’t have to know what 617, 718, 719, 720, and 721 are, or that the declaration contains restrictions that “run with the land”, or that the articles of incorporation and by-laws govern the business of the association.
 
Managers deal with many ethnic and religious groups, are often bilingual, and have to be aware of customs and practices of their overseas residents. Thank you for being a terrific international diplomat.
 
Managers sometimes have to act as the referee at board meetings and annual elections. Thank you for stepping in and reminding us to act like adults and be civil to each other.
 
Thank you for being our manager!

Happy Thanksgiving!

 

betsyBetsy Barbieux, CAM, CFCAM, guides managers, board members, and service providers in handling daily operations of their communities while at the same time dealing with different communication styles, difficult personalities, and conflict. Effective communication and efficient management are her goals. For more than 15 years, Barbieux has educated thousands of managers, directors, and service providers. She is your trainer for life! Barbieux is the author of Boardmanship, a columnist in the Florida Community Association Journal, and a member of the Regulatory Council for Community Association Managers. For more information, contact Betsy@FloridaCAMSchools.com, (352) 326-8365, or www.FloridaCAMSchools.com.

28Mar 2016

community

T

ell me a bit about your background:

I am originally from Wayne, New Jersey.  My family and I moved to Florida in 1992.

How and why did you choose your current profession?

After buying and selling condominium foreclosures for many years, I then started FlatFee.com in 1999. At the time, a “discount broker” was a dirty word to traditional brokers and realtors. However, through time, most brokers had a buyer from their office that they had shown one of our limited service listings. Their idea of FlatFee.com had slowly changed. Within two years, we were in 44 MLS’s covering all of Florida and Alabama counties. We quickly became the largest MLS listing office in Florida and Alabama and have been so for 14 years. I saw a rising interest in FSBO listings in the beginning that has steadily grown. I am sure that today every property owner understands the term For Sale By Owner. It is stated that 16 percent of homes are sold by discount brokers and/or FSBOs. I find this upward trend simply remarkable.

Tell me a bit about your business:

FlatFee.com is an Internet company that MLS lists properties for sale and for rent. For a “Flat Fee” a client saves the traditional three percent listing fee. The client chooses the commission they wish to offer the buyer’s agent. Realtors contact the client for showings, details, and presentation of contract. The client also reserves the right to sell the property themselves as a FSBO and would save all commissions.

The concept is simple. One would start a file at FlatFee.com and complete our MLS form and post photos of the property. Our staff would post the listing in the appropriate MLS. The listing is then syndicated to Realtor.com, Zillow, and Trulia plus many more sites.

From your business perspective, what is one of the most challenging issues facing community associations?

With large rental turnover, management companies and associations must save rental advertising dollars while retaining control of their rentals. Couple a listing commission savings with advertising to the three main public sites plus the exposure to every realtor in the local MLS, and the client has more control of their property than ever before.

What is the achievement—business or personal—that you are proudest of?

I have been proud of FlatFee.com through the last 16 years. We have been building strong relationships and trust with MLS’s, brokers, and clients that make our referral business outstanding. However, personally, my three children are the best achievement a person could ask for.

What is your business philosophy?

The correct business philosophy is: Work with clients as you wish they would have worked for you.

Which individual has had the most positive influence on your professional or personal life?

This answer is simple: My Mom. She is still going strong at 95 and is ever challenging herself to learn something new. Her lessons taught to me were to work hard, be honest, keep your faith, and care for family and friends. Follow these simple rules, and you will sleep at night with a clear conscience.

What activities do you enjoy outside of your professional life?

Outside interests are my garden and my Model A Ford. Both give me a chance to move away from the computer and clear my thoughts.

25Feb 2016

by Jacob Epstein and David Podein

review

 

The tenant application process to a condominium association can be long, arduous, and sometimes, expensive. Associations often require that prospective tenants submit pages and pages of paperwork, undergo background and credit checks, and pay application fees. However, what information may the Association actually rely upon in making its decision to accept or deny a prospective tenant’s application? The answer is more complicated than you may think. When weighing the information discovered during the application process, the Association must consider: (i) whether the Association’s process for approving and/or rejecting prospective tenant applications complies with the Association’s governing documents and current laws; (ii) whether the evaluation criteria used by the Association will have a disparate impact on a minority group; and (iii) whether the Association can provide a prospective tenant with a specific and appropriate reason for rejection.

As a preliminary matter, the Association’s governing documents may not even grant the Association the power to approve or deny prospective tenants. Rather, such a decision may be left up solely to the unit owner/landlord. Additionally, the Association’s governing documents may or may not include the power to accept or reject a tenant for any reason or without having to provide an explanation. The Association should consult with its legal counsel before utilizing certain powers provided for in the governing documents, as sometimes, the very powers articulated in the those documents may be in violation of applicable laws.

If the Association does have tenant approval power, whatever the reason for rejecting the tenant, the Association must be prepared to explain. Miami-Dade County Ordinance Section 11A-18.1(b) requires that the Association must: (i) provide notice within 45 days of any tenant application rejection, and (ii) state, with specificity, the reason for the rejection. The Association should be prepared to provide this explanation even if the Association’s governing documents do not require the Association to do so.

Additionally, the federal Fair Housing Act1 (more commonly referred to as the “FHA”) and Florida’s Fair Housing Act2 each provide numerous protections from discrimination by housing providers, including condominium associations. Prior to denying an application, and prior to offering a “reason” for the denial, the Association must ensure compliance with these laws, the reach of which was recently expanded by the United States Supreme Court. Under the Court’s decision in Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc.3, if a housing provider’s resident acceptance policy has a “disparate impact” on a minority group, such a policy would fall under the purview of FHA prohibited practices. For example, if it can be demonstrated that the Association’s reliance on a certain type of background check to reject tenant applications has a disparate impact on a minority group, the Association may open itself up to potential FHA liability.

The FHA prohibits housing providers from refusing to “otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.”4 Despite the FHA’s language, which provides protections for minority groups based on race, color, religion, sex, familial status, or national origin, the FHA’s reach has been expanded to protect other minority groups not specifically listed in the statute. Specifically, the Department of Housing and Urban Development has warned housing providers of potential FHA liability for denying tenant applications based on requests by individuals with disabilities to reside with assistance animals.5 Associations must be careful to ensure that their tenant application policy and reasons for denying tenant applications do not have a “disparate impact” on any particular race, sex, or people of any particular national origin or familial status, or for that matter, on people with disabilities.

Despite this recent expansion of the FHA’s reach, Associations retain the discretion to reject tenant applications for a variety of reasons. In the Inclusive Communities Project opinion, Justice Kennedy explained: “An important and appropriate means of ensuring that disparate-impact liability is properly limited is to give housing authorities and private developers leeway to state and explain the valid interest served by their policies.” For example, prior to the Inclusive Communities Project decision, certain federal Courts found that limiting the number of occupants in a unit can be an acceptable policy under the FHA. The Association should carefully consider its policy regarding tenant applications, specifically the criteria used by the Association in making its decisions, to ensure that “valid interests” are protected by such policy. A careful analysis – – and potential corresponding adjustment – – of the Association’s tenant acceptance policy could protect the Association should a disgruntled applicant bring a FHA claim against the Association.

It is dangerous for Associations to deny tenant applications without having a specific, justifiable basis, as such a rejection may open the Association up to potential liability. Reliance on outdated governing documents to reject “undesirable” tenants could lead to liability under the FHA and/or violation of local ordinances. Whenever a tenant application is about to be denied, the Association must be ready to provide the specific reason for the denial, with such reason having its basis in a counsel-reviewed, tenant application policy. Although nothing will completely prevent challenges by applicants and potential liability in this process, the Association should consult with legal counsel, and carefully evaluate whether any changes to its tenant application process are necessary to prevent discrimination against a minority group or to ensure compliance with applicable laws and the Association’s governing documents. Addressing any flaws in the Association’s tenant application process now may help to prevent or reduce litigation down the road.

jacob-epsteinJacob Epstein is an associate with the Miami-based law firm of Haber Slade, P.A. He concentrates his practice areas on business litigation, condominium and community association law, construction law, and real estate litigation. He can be reached at jepstein@dhaberlaw.com.

 

 

david-podeinDavid T. Podein is a senior associate at Haber Slade. He concentrates his practice in the areas of complex commercial and business litigation, real estate leasing and construction, contract negotiations, real estate development disputes, condominium and community association law and bankruptcy litigation. He can be reached at dpodein@dhaberlaw.com.

 

 


1 42 U.S.C. § 3604.

2 Fla. Stat. § 760.23.

3 Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc., 135 S.Ct. 2507 (2015).

4 42 U.S.C. § 3604(a).

5 See Mem. from U.S. Dept. of Hous. and Urban Dev. on Service Animals and Assistance Animals for People with Disabilities in Housing and HUD-Funded Programs, FHEO-2013-01 (April 25, 2013).

6 Texas Dept. of Housing and Community Affairs, 135 S.Ct. at 2522.

7 Mountain Side Mobile Estates Partnership v. Secretary of Hous. and Urban Dev., 56 F.3d 1243 (10th Cir. 1995); U.S. v. Weiss, 847 F. Supp. 819 (D. Nev. 1994).

27Apr 2015
From L to R: Alan Jones-Corporate Trainer, KW Management, Richard Johns-FCAP, Robert Johnson-CFCAM, KW Management, Sandy Bennett-Executive Director, Bruce Masia-Regional Manager, Robert White-Managing Director, all with KW Management.

From Left to Right: Alan Jones-Corporate Trainer, KW Property Management & Consulting, Richard Johns-FCAP, Robert Johnson-CFCAM, KW Property Management & Consulting, Sandy Bennett-Executive Director, Bruce Masia-Regional Manager, Robert White-Managing Director, all with KW Property Management & Consulting.

 

On Wednesday evening, April 21, FCAP presented Robert P. Johnson with his certificate of achievement for successfully completing the Certified Florida Community Association Manager curriculum. Robert joins a group of nearly 60 Community Association Managers within FCAP that hold this designation.

Mr. Johnson first began managing community associations at The Estates, an 860 unit HOA community. He later managed a couple of luxury high-rise condominiums before settling into his current position as General Manager of the luxurious Turnberry Village, a pristine 14 story condominium located in Aventura, Florida.

Robert has experienced the rewards of pursuing educational achievements along his journey. Along with being a CFCAM (Certified Florida Community Association Manager), he also has completed the educational requirements for being a CMCA (Certified Manager of Community Associations), AMS (Association Management Specialist), and a PCAM (Professional Community Association Manager). In 2013 and 2014, Robert was selected as one of the 100 Finalists for the “Manager of the Year” award, presented by Association Reserves.

The FCAP family congratulates Robert for his accomplishments and the contributions he makes to the community association industry in Florida.

13Mar 2015

Do you enjoy sharing real work experiences with other licensed CAMs?

This is your opportunity!

When: April 23rd
Where: South County Civic Center, Delray Beach, FL
Format: Roundtable discussions
Time: 7:30am – 9:30am

There will be food, door prizes, fun and fellowship. 

 

* This event is for licensed managers only, seating is limited.

CAMtoCAM-sponsors

 

 

For questions contact Richard or Dana Johns.

Phone: 772-266-8539 | Email Richard | Email Dana

05Mar 2015

GAINESVILLE, Fla. – The Association Law Firm, PLLC was named to the University of Florida’s inaugural 2015 Gator100 during a ceremony Feb. 6 at UF’s J. Wayne Reitz Union Grand Ballroom.

 Sponsored by UF, the Warrington College of Business Administration and the Center for Entrepreneurship & Innovation (CEI), the Gator100 recognizes the 100 fastest-growing businesses owned or led by UF alumni. Ernst & Young calculated each company’s compounded annual growth rate (CAGR) over the past three years to generate the ranking.

 The Association Law Firm, PLLC was highly ranked thanks to an impressive compound annual growth rate (CAGR).

 The Association Law Firm is built around the core philosophy that Community Matters. This philosophy serves as the heart of the Firm’s mission to be a compassionate advocate for communities and act in support of the association by providing professional, prompt, and affordable legal assistance. Michael A. Ungerbuehler & Paul E. DeHart III have been helping community associations with their legal needs for over a decade. In 2008, they teamed up at the Association Law Firm to exclusively focus their practice on providing legal services to community associations. Their vision is simple: to offer communities in Florida a better and more affordable community association legal product. Mike and Paul both graduated from the University of Florida College of Law. They are passionate double Gators who bleed UF orange and blue.

 “The Gator100 is an important initiative that recognizes entrepreneurial excellence,” said Dr. Michael Morris, the Academic Director of the entrepreneurship program at UF. “It is open to any and all companies founded or run by Gator alumni, and recognizes those who are achieving growth, innovating, and making a difference in their communities.”

 To qualify for the Gator100, companies must have been in business for five years or more as of September 2014, and have had verifiable annual revenues of $100,000 or more in 2011. Additionally, a UF alumnus or alumni must have met specific leadership criteria.

 “As a proud, lifetime alumni of the University of Florida, it was an honor for the Firm to be recognized with this prestigious award. Thanks to the hard work and dedication of the Team assembled at The Association Law Firm, we have not only made an impression on the Gator Nation, but also on the community association industry,” said Ungerbuehler.

 View the full list of Gator100 honorees at gator100.ufl.edu.

 

04Mar 2015

by Chere Trigg / Published February 2015

Drones have been the topic of conversation for the past several years sparking privacy concerns among residential communities. In the state of Florida, Governor Rick Scott signed a bill that limits law enforcement’s use of drone aircrafts; however, that bill does not pertain to or restrict the commercial and private use of drones. The “Freedom from Unwarranted Surveillance Act,” which came into effect on July 1, 2013, allows law enforcement agencies to launch camera-carrying surveillance drones under two circumstances: if a warrant from a judge is obtained or if a person’s life or property is believed to be in im-minent danger. In 2013, the use of drones was reported by both the Miami-Dade and Orange County Sheriff’s departments, each owning two drones used solely for training purposes.

However, not all states are restricting domestic drone use. The state of North Carolina, for example, does not have a bill protecting its citizens from law enforcement agencies using drones. In fact, North Carolina’s legislation recently passed a bill giving authorities permission to use drones to photograph open-invitation gatherings without the need to obtain a warrant—even if the gathering is held on private property. That is not to say there are not regulations in place protecting citizens from peeping toms photographing someone and/or their property. The use of drones for business purposes is also prohibited. For example, photographers cannot sell photos or videos taken with a drone as drones should strictly be used for recreational purposes.

Even with all of the FAA’s rulings, the commercial and private drone industry is expected to become a multimillion dollar industry, creating numerous jobs within the next ten years. The controversial topic revolving around the right or wrong use of unmanned aircrafts has many asking, where can the line be drawn? Drones are easily accessible and are found for sale all over the Web. With laws being passed focusing only on law enforcement’s use of drones, such as Florida’s Senate Bill 92, what can be said about your neighbor flying his drone over your house or condominium unit? Is it deemed acceptable because it is a hobby? Or does your neighbor need to limit his drone flying to his property only?

Allowing the use of drones within communities could also violate the privacy rights of residents and could result in legal actions for trespassing, voyeurism, harassment, and invasion of privacy. For instance, neighboring residents could attempt to use drones to spy on other residents by viewing into windows and balconies. Further, some question whether associations may use drones to inspect units for violations without the owner’s knowledge. The questions are endless, but communities can set rules in an effort to protect their residents’ privacy. At your next association meeting, you could request to limit the flying of drones to cer-tain areas to prevent anyone in your community who may own a drone from flying it near your home, on the common areas, or from the condominium property. With the popularity of the technology and lack of restrictions, board members should even consider a ban altogether to avoid any unnecessary hassles. With prices as low as $50, it is best to put the proper restrictions in place for your community before privacy is jeopardized.

Over the course of time, we will hear of new rules and regulations regarding the use of drones, especially as technology assists in their evolution to become smaller, cheaper, and much more efficient than existing methods. Companies like Amazon are already seeking approval from the FAA in an effort to pioneer drone-delivery services. Although the use of drones could potentially revolutionize the way many existing companies operate, the bigger focus lies in the misuse of drones should they begin to trample on privacy laws.

04Feb 2015

by Mike Shephard / Published January 2015

Your roof is the most important element to be installed during construction, and often it is the last item to be improved upon after installation. As events happen during the years, it is easy to forget that the roof is exposed to the environment on a daily basis. These elements wear down the most expensive part of the building structure. The old saying, “out of sight, out of mind” is an apt description to describe what often occurs when it comes to the roof. How can this be changed so the roof isn’t forgotten about?

All roofs should be inspected regularly in order to prevent a small failure from becoming a substantial failure. Inspect your roofs at least twice a year to look for ponding water, to make certain flashing details are secure, to have the roof inspected for loose tiles or shingles, and to remove any debris that could cause gutters or drains not to work properly. Have a regular maintenance program and keep the findings documented so you can budget yearly for the cost of replacing a roof. Most roofs can last longer if they are maintained, just like your car!

When the time comes for a new roof, here are a few tips that help in the process:

• Qualify your roofer.

• Must be insured and licensed in your state (your state codes might be different than others).

• Can they produce a bond?

• Run a background check and reference check.

• Set a meeting and visit their company. You must feel comfortable and confident that you are choosing the right partner in your decision.

Ask a lot of questions.

• Set the expectations from the job start to its completion and from materials to clean up. Be specific in your expectations.

Secondly, the types of roofs can be expensive. Roofing should be considered as an investment that is going to last 20 years or more. When buildings are designed, the roofing structure is chosen. The trusses are built to handle the weight of certain types of roofing choices. Often people will ask, “Can I change my shingle roof to concrete tile?” The answer is “no” because the trusses were built to handle the weight of a shingle roof, not a concrete tile roof. It is important to know the different types of roofing products and what options you may have on the different types of roofs. So, let’s put together types and cost outlines to help guide you through the process.

ROOF STRUCTURES

Low Slope Roofs

• Single ply (known as TPO and EPDM)

• Modified bitumen (common types APP & SBS)

Steep Slope Roofs

• Asphalt shingle • Steel tile

• Cement tile • Metal roof

TPO and modified bitumen roofs are mostly used on commercial buildings. They provide energy efficiency, excellent durability, and strength. Modified bitumen will be a bit more expensive. The durability is greater.

The least expensive roofing option in the steep slope roofs category is asphalt shingles. It is a good roofing system with a predictable lifespan of 15–20 years in Florida. A shingle roof can be put on any building.

The upgrade from shingles is cement tiles, which again can last 20-plus years. Concrete tiles come in many profiles and colors. They can be installed by attaching with foam adhesive or screws. Florida has many communities with cement tiles as their choice. Stone-coated steel tile is more ex-pensive than concrete, though it has virtually the same appearance. The chief advantage is that it has a much higher resistance to windstorm events. A steel tile has more fasteners per tile, and the tile itself is the primary waterproofing element of the roof. The underlayment provides only a secondary role as all the water by design stays on top of the roof tile.

Metal roofing is the most expensive of the steep slope roofs. Trending in popularity, metal roofing is not just for the commercial buildings now. Homeowners are choosing this look too! With many colors and a long life span of 20-plus years, it’s on the rise. Commercially, schools are using this for the energy efficiency and the long-lasting warranty. This is a great product without a noise issue.

Overall when selecting and investing in a roofing system, you must do your homework. Invest your time wisely in choosing your roofer and the type of roof you want on your business or home. Great success in all of these roofing systems has been seen. They have performed well in most cases and some have done better than others during our Florida hurricanes or tropical storms.

14Nov 2014

By Lisa Whitson

Biggest Monthly Increase Since U.S. Foreclosure Activity Peaked in March 2010;
  Scheduled Foreclosure Auctions Post 24 Percent Monthly Increase, REOs up 22 Percent;
  Top Five State Foreclosure Rates in Maryland, Florida, Nevada, Ohio, Illinois;

According to a monthly report released by RealtyTrac, the nation’s leading source for comprehensive housing data, Florida remains in the top 5 states for foreclosure rates and two of Florida’s MSA’s (metropolitan statistical area) have the highest number of homes or units in foreclosure; Tampa and Miami. 

While the term foreclosure carries a negative connotation, attorney Frank Ruggieri with The Ruggieri Law Firm in Orlando explains that Florida being at the top of the list in number of foreclosures is not necessarily a negative statistic for the state.  “Florida can and should lead the way in making some important reforms to the foreclosure process as the State continues to have one of the highest foreclosure rates in the U.S.,” says Ruggieri. 

Daren Blomquist, vice president with RealtyTrac states in a press release found on the RealtyTrac website that accompanied the October report that although this is not a surprise, the biggest increase in U.S. foreclosure rates since March, 2010 is more than just a seasonal uptick as many experts have suggested. “The October foreclosure numbers are not a complete surprise given that over the past three years there has been an average 8 percent monthly uptick in scheduled foreclosure auctions in October as banks try to get ahead of the usual holiday foreclosure moratoriums,” said Blomquist, “But the sheer magnitude of the increase this year demonstrates there is more than just a seasonal pattern at work. Distressed properties that have been in a holding pattern for years are finally being cleared for landing at the foreclosure auction.”

Ruggieri agrees that the report is not surprising and goes on to share why he feels the foreclosure numbers remain high in Florida. “I believe the increased activity I have seen is mostly associated with concluding foreclosures which have sat idle for years as well as ‘secondary foreclosures’ in connection with previously modified mortgages.  Banks are now more willing to take title in light of increasing property values. Homeowners who previously negotiated modifications are now, in some cases, defaulting once again,” said Ruggieri. 

The RealtyTrac report goes on to discuss increased foreclosure activity according to metro areas across the country, again showing the strength of Florida’s foreclosure process.  “Among the nation’s 20 largest metros, those with the five highest foreclosure rates were Miami (one in every 363 housing units with a foreclosure filing); Tampa (one in every 395 housing units); Baltimore (one in every 435 housing units); Riverside-San Bernardino in Southern California (one in every 495 housing units); and Chicago (one in every 553 housing units).”

Click here to read the October, 2014 report in its entirety.

Information for this article was provided by RealtyTrac and FCAP service provider member Frank Ruggieri with The Ruggieri Law Firm. 

About RealtyTrac 
RealtyTrac is a leading supplier of U.S. real estate data, with nationwide parcel-level records for more than 129 million U.S. parcels that include property characteristics, tax assessor data, sales and mortgage deed records, Automated Valuation Models (AVMs) and 20 million active and historical default, foreclosure auction and bank-owned properties. RealtyTrac’s housing data and foreclosure reports are relied on by the Federal Reserve, U.S. Treasury Department, HUD, numerous state housing and banking departments, investment funds as well as millions of real estate professionals and consumers, to help evaluate housing trends and make informed decisions about real estate.  

About Frank Ruggieri
Frank A. Ruggieri is the founding member of The Ruggieri Law Firm, P.A. and has practiced law for 18 years in Central Florida, 14 of which have been devoted to community associations. He concentrates his practice in the areas of community association, commercial, and general corporate law. Ruggieri has prosecuted and defended covenant violation, collection, commercial, and construction defect cases on behalf of the Firm’s community association and corporate clients.

07Nov 2014

SUBSTANTIAL COMPLIANCE WITH THE DISTRESSED CONDOMINIUM RELIEF ACT: THE NEXT BATTLEGROUND IN THE FEUD BETWEEN CONDOMINIUM BULK PURCHASERS AND ASSOCIATIONS

By David B. Haber, Esq. and Jonathan S. Goldstein, Esq.

With every year that passes since the “Distressed Condominium Relief Act” (“DCRA”)(§§718.701-708, Florida Statutes, Et. Seq.), Part VII of the Florida Condominium Act, took effect, there is the increased possibility that the novel issues that it raises will become the subject of significant and impactful legal disputes as many associations grapple with the protections and requirements for bulk purchasers of condominium units under the DCRA.  The DCRA was a law enacted in 2010 to encourage bulk purchasers of distressed condominium projects, while balancing consumer protections that have long been present in the Florida Condominium Act to protect new condominium unit owners at “Turnover” — the time when control of a condominium association is transferred to the non-developer voting interests.  The DCRA creates two new classes of condominium bulk purchasers, the “Bulk Buyer” and “Bulk Assignee,” each with their own level of responsibilities and protections from the assumption of Developer obligations and liabilities.  The DCRA alleviated uncertainty for bulk purchasers regarding their classification and obligations, most notably whether they were a “Developer” as defined by law and whether they were obligated to provide those statutory warranties for condominium property provided by a Developer pursuant to Section 718.203(1), Florida Statutes.  The DCRA typically protects Bulk Assignees from such warranties for all work not performed by or at their behest.  The DCRA also protects Bulk Buyers from any and all Developer liabilities and responsibilities, including statutory warranties, not expressly assumed in writing by the Bulk Buyer.

However, Bulk Assignee status involves significant duties and responsibilities.  Pursuant to Section 718.704(1), a Bulk Assignee is responsible for all duties and responsibilities of a Developer except for those duties and obligations specifically set forth in the DCRA.  It remains to be interpreted whether this catch-all includes a Bulk Assignee’s responsibility for any and all actions and violations of a pre-turnover association pursuant to Section 718.301(5), Florida Statutes, and a Bulk Assignee’s obligation to indemnify an association for pre-turnover actions of the association under the control of the Bulk Assignee, pursuant to Section 718.301(6), Florida Statutes, though the language strongly suggests that this is the case.

Pursuant to Section 718.706(3)(a) and (b) of the DCRA, Bulk Assignees are required to fund mandatory reserves unless a waiver of reserves is approved by the non-Bulk Assignee controlled units.  Bulk Assignees are required to provide various turnover records in a timely fashion and conduct reasonable due diligence to attempt to locate same pursuant to Section 718.705(3), Florida Statutes.  Additionally, pursuant to Section 718.704(2), Florida Statutes, a Bulk Assignee that is not assigned the right to guarantee a level of assessments and fund budgetary deficits is required to pay maintenance for all of their unsold units.  Bulk Assignees are also responsible for transferring control of the condominium association in the manner required by Section 718.705(2), Florida Statutes.

While Bulk Buyers are perhaps provided with fewer specified obligations in the DCRA as Bulk Assignees, Bulk Buyers still can assume liabilities and responsibilities voluntarily.  Bulk Assignees and Bulk Buyers must both comply with various pre-sale disclosure and administrative filing requirements pursuant to Section 718.706, Florida Statutes, including requirements to include certain conspicuous disclosures related to their status.  Pursuant to Section 718.706(4), Florida Statutes, the DCRA does not allow Bulk Assignees or Bulk Buyers to run afoul of the prohibition in Section 718.302(4), Florida Statutes, against unreasonable “Pre-Turnover” contracts entered into by the Association.

The failure to meet these respective obligations could have significant consequences upon the Bulk Assignee or Bulk Buyer’s rights to avoid Developer liabilities.  Tucked into the DCRA is a provision that all associations dealing with Bulk Assignees and Bulk Buyers must take heed of, because it is a trap for the unwary Bulk Assignee or Bulk Buyer that can drastically overturn the dynamics of their obligations to the association.  Specifically, section 718.705(5), Florida Statutes, states in pertinent part:
“(5) Failure of a bulk assignee or bulk buyer to substantially comply with all the requirements in this part results in the loss of any and all protections or exemptions provided under this part.”
This language refers to all of the requirements and protections or exemptions of “this part,” which seemingly refers to the DCRA as a whole.

The stakes of such substantial compliance are likely very high.  Forfeiture of these DCRA exemptions and protections due to non-compliance could potentially expose a Bulk Assignee or Bulk Buyer to unexpected liability for any and all statutory warranties pursuant to §718.203(1), Florida Statute, which the DCRA would typically protect Bulk Assignees from for all work not performed by the Bulk Assignee.  In addition, there are other obligations and responsibilities of Developers from which Bulk Buyers and Bulk Assignees are generally exempt, including certain financial obligations of the Developer that a Bulk Assignee or Bulk Buyer could become exposed to.  This concept of “substantial compliance” with the DCRA still awaits judicial clarification, and it is likely to be the next major battleground between both types of bulk purchasers and condominium associations.

 

Haber-Goldstein

Attorneys David B. Haber and Jonathan S. Goldstein, of the Law Firm of David B. Haber, P.A., can be reached at dhaber@dhaberlaw.com and jgoldstein@dhaberlaw.com.  This article is for general information purposes and is not intended to be and should not be taken as legal advice.

07Nov 2014

FCAP’s John Wattick with Converged Services Inc., shares why it’s important for board members and managers to monitor trends in technology and why it can even impact a board member’s fiduciary duty if left unchecked.

Consumers of all age groups are watching video on many devices and remotely.  Recent surveys have shown that over 60% of the viewing audiences have at least 4 devices in their homes and want the ability to remotely enjoy video as well as have access to security systems, lights and other in-home devices.

What impact does this shift in viewing habits have on community associations? Access to services and amenities by residents is the reason association board members and management company executives should take notice of trends in technology. The service in this instance is broadband technology.

The growing number of Smart TVs, tablets, smart phones and personal computers found in homes across the country is fueling the upward trend in broadband requirements in community associations.  Time spent watching digital video daily among adults 50 – 64 increased 72% in the second quarter of 2014 according to Nielsen’s Cross-Platform Q2 2014 viewing report. More than 70% of U.S. households subscribed to broadband services at the end of last year and more than half of those households surveyed have a TV connected to the internet, according to various research reports.

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In addition to multiple devices used in homes, viewers are also moving in large numbers to direct streaming which pulls on an already stressed broadband delivery system in some of our existing communities. Welcome to the over-the-top era or OTT as media insiders refer to this period in consumer viewing history named for the proliferation of direct streaming services like Netflix, Hulu, and Amazon Prime. The OTT era is here and it’s not showing signs of slowing in the near future.

Researcher Joyce Wang says, “It’s been a busy couple months with numerous significant OTT announcements.” Time Warner execs finally confirmed an OTT version of HBO service to be launched in 2015. CBS is making its OTT service available in its owned-and-operated markets, and last month, Viacom officially announced a deal with Sony to license live and on-demand programming for Sony’s to-be-launched OTT service. Dish is working on its OTT package to be released by the end of the year. The Telcos (telephone companies) are looking to get a slice of the pie too, with both AT&T and Verizon execs signaling their interests in launching similar offerings.

A high-rate of subscriptions to OTT services was found among owners of streaming media players—devices like Roku, Amazon Fire and Apple TV, among others—with more than 75% of streaming media player owners subscribing to an OTT service, according to Parks Associates.

Online video streaming continues its major transgression into the consumer mainstream, with research firm Frank N. Magid Associates reporting that 83 percent of U.S. TV viewers now stream movies and TV shows, at least occasionally.

Another concern association decision makers should keep in mind is that more video content over broadband means the possibility of internet service providers (ISPs) charging for data transport. There is significant scrutiny for the first time into interconnection, analysts say. The risk of OTT depends on whether cable can or can’t price broadband in such a way to offset lost video transport revenue and the most obvious ways to recapture lost “transport revenue” are usage based pricing, surcharges on naked broadband (deeper discounts on bundles) and interconnection pricing.

OTT providers have the support of the FCC as FCC Chairman, Tom Wheeler has circulated a rulemaking proposal to give OTT providers access to programming.  Wheeler announced “We have passed from an era where it was necessary to build a purpose-specific pathway to deliver video. The innovation of internet protocol (IP) has freed video from these closed pathways and single-purpose devices. Consumers have long complained about how their cable service forces them to buy channels they never watch.” Wheeler went on to say “The move of video onto the internet can do something about that frustration— but first internet video services need access to the programs.”

We are seeing this shift reflected in the numbers of broadband internet customers in the major providers’ portfolio vs their traditional video business.

  • Charter has about 4.15 million pay-TV customers and nearly 4.7 million broadband internet customers.
  • Video subscribers for Comcast now total 22.4 million. Comcast now has 21.6 million internet broadband customers.
  • Verizon has a total of 6.5 million Fios internet and 5.5 million Fios video connections.
  • Time warner has 10.8 million TV users and 11.5 million internet broadband customers.

As these trends in viewing continue it is imperative that service providers build and upgrade their architecture to handle these demands.  Deeper fiber penetration to the home (FTTH), IP and Cloud technology become essential features homeowners expect in their community.  Associations and management companies are beginning to experience selection when an association signs or renews their cable TV, internet and voice agreements, whether they are bulk, ROE (Right-of-Entry) or a combination.

The right-of-entry (or ROE) agreement is the legal agreement that allows the service provider to access private property for the purpose of providing broadband services to residents in a multi-dwelling unit such as a high-rise condominium.

Under a Bulk ROE agreement, the service provider provides its services to 100% of the residential units at the property, and the HOA pays a monthly bulk fee.

Under a standard ROE agreement, the service provider provides its service to any resident who subscribes to that service under a separate individual service agreement between the resident and the provider.

The chart below is significant for association board of directors and management companies as many residents are choosing communities that reflect this change in technology and delivery architecture.

 

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As a community association board member or management company executive it is imperative to stay abreast of technology and the costs associated with providing or more importantly, not providing access to the latest in broadband services to residents and homeowners. Industry consultants like FCAP’s John Wattick at Converged Services Inc. (CSI) can work with associations to determine if their community’s existing infrastructure is sufficient to meet current and future needs. Visit CSI at www.convergedservicesinc.com for more information on technology and your community.

31Oct 2014

All Aboard Florida’s public forum for its express passenger rail service made a stop in Stuart Thursday night and FCAP’s Director of Business Relations, Richard Johns, was in attendance for a portion of the meeting.

According to an article published last night by the Palm Beach Post, the meeting in Stuart was one of the largest meetings to date in their public relations tour. “It was the fourth, and busiest so far, of eight draft environmental impact statement meetings for residents to learn more about the unprecedented train service from Miami to Orlando that will operate on the Florida East Coast Railway tracks,” writes Kimberly Miller.

Johns attended the meeting in an effort to gather information on the impact of All Aboard Florida on community associations along the route of the rail service which will serve Floridians from Miami to Orlando with stops in West Palm Beach and Fort Lauderdale.

The reaction in the room of over 700 residents was mixed with a majority opposing the rail service and its impact on boat traffic along waterways of Treasure Coast communities.

Those in favor of the express rail service see it as an economic boost of over $6 billion for the state’s economy.

Four public meetings remain on the All Aboard Florida environmental report tour.

  • Nov. 5, 3:30 – 7 p.m., Indian River State College, Richardson Hall, 6155 College Lane, Vero Beach
  • Nov. 6, 3:30 – 7 p.m., Port St. Lucie Civic Center, 9221 S.E. Civic Center Place, Port St Lucie
  • Nov. 12, 3:30 – 7 p.m., Cocoa Civic Center, 430 Delannoy Ave., Cocoa
  • Nov. 13, 3:30 – 7 p.m. Wyndham Orlando Resort I-Drive, 800 International Drive, Orlando
31Oct 2014

Your participation can make a difference! Managers and board members, help us make the 2015 Salary Survey as accurate as possible by completing our online survey at  www.flcaj.com/survey. The survey is used throughout the year by board members and managers alike, so it is important to have a good sample.

29Oct 2014

The staff at FCAP – Florida Community Association Professionals truly believe in the positive affects of humor in business and life. The creation of Hurricane Winds Condominium Association comic strip, which debuted recently in Florida Community Association Journal, began as an idea by CEO Jim McMurry to add humor to the pages of the longtime trade publication. When McMurry began the search for an artist to bring his idea to life, he knew exactly who to turn to. FCAP’s graphic designer, Joey Phelps, took the idea of humor in community business to heart and the characters of Hurricane Winds Condominium Association were born.

 

 

Hurricane Winds is a new venture for Florida Community Association Journalbut a comic strip is nothing new for Phelps. Phelps and his brother, Michael, are lifelong artists who have worked together to make art and humor a successful business. The Phelps brothers created a comic strip several years ago for an international non-profit online magazine, Hat Trick Magazine, which still runs today. The strip can also be found at www.LilNipperSnappers.com.

Phelps knew that humor built around the seriousness of community association management would be the perfect medicine for managers and board members who face stressful and sometimes volatile situations on a regular basis. According to an article published by the Mayo Clinic, “Laughter enhances your intake of oxygen-rich air, stimulates your heart, lungs and muscles, and increases the endorphins that are released by your brain.” The same article goes on to say, “Laughter can also make it easier to cope with difficult situations.” What better prescription for what ails us then, than the characters brought to life in Hurricane Winds

 

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So exactly how does Phelps bring his characters to life? This is where pencil & paper and digital technology come together. Working closely with McMurry to develop the ideas for who each character will be and will look like, Phelps uses pencil and paper to sketch out characters and develop the unique characteristics for each. He then goes back over each sketch with pen and ink to make the characters more vivid and bold on paper. The pen and ink drawings are then scanned into Photoshop where Phelps adds color digitally via a Cintiq monitor and can take advantage of technology to move, reposition, and tweak each character.

 

 

joey-cintiq

 

Each installment of the Hurricane Winds Condominium Association comic strip is brought to life each month through a series of brainstorming sessions between McMurry and Phelps and are developed through the same system as the initial character development. From pencil and paper to PhotoShop and a digital tablet, the words and story lines come to life. Phelps has spent years working with this industry through the production of Florida Community Association Journal and has watched it grow and change over the years. He gains insight for each character and story line from the relationships built between this organization and those he serves.

Watch for the next issue of Hurricane Winds in the November issue of Florida Community Association Journal, arriving in mailboxes very soon.

 

24Oct 2014

FCAP members Dan Gleason, CAM, CFCAM  and Ronald Scott Kaniuk, Esq with Bakalar & Associates, PA recently discussed Master HOA authority and unit leases. Here is a look at their informative Q&A.
 
Dear FCAP,
 One of my associations is the lone condo district in a larger HOA association made up of 13 districts.  The master HOA association wishes to limit the ability of the condo association owners to leases of only 2 years in length and the lessees can never lease again in the condo association even from a different condo owner.  FS 718.110 (13) seems contrary to that notion, but the master claims in its documents that it is not a condo association and therefore unaffected by FS 718.  The condo owners have not consented to this change in the master association’s documents and no vote has been taken by members of the condo association to accept or reject this change.  Some of the condo owners have long term lessees whom they want to keep as lessees.  Will they lose their long term lessees and if so when?

Dan Gleason, CAM, CFCAM
 


 
 Dear Dan,
It seems that there are 2 questions presented here.
 
The first question is whether or not the Master HOA can enact rules to limit the ability of the Condominium Association owner to lease their property (both in duration of lease and identity of lessee).  The answer to this question is Yes, the Master HOA can enact rules to limit the ability of the Condominium Association owner to lease their property (both in duration of lease and identity of lessee), but need to follow the applicable rules to modify the governing documents for the Master HOA.  
 
The second question is, assuming such rules could be enacted, what the effect will be on existing leases.  The answer to this question is that existing leases would be unaffected.  The Master HOA would not have the power to void or seek to void a valid lease between an owner as landlord and a tenant.  However, any such amendment would have an effect to limit new leases entered into by any property owners, whether or not they are currently leasing their property.
 
FS 718.110(13) governs the rights of the Condominium Association to restrict rentals.  It is ineffective against Homeowners Associations, who are governed by Section 720.
 
Ronald Scott Kaniuk, Esq.
Bakalar & Associates P.A.
www.assoc-law.com

17Oct 2014

Vizcayne Condo Association North and Vizcayne Condo Association South filed suit Friday, October 10, 2014 in Miami-Dade against owners RW 244 Biscayne Res LLC and RW 244 Biscayne RET LLC, real estate finance executives Shane Hillsley and Thomas W. Duncan of Duncan Hillsley Capital LLC, the master association and the Vizcayne Commercial Condominium Association, which controls a commercial lot on the property.
 
During an interview with Vizcayne Condo Association North and South attorney David Haber who filed the suit on behalf of the associations explained to FCAP that instead of absorbing construction costs as the project went along, RW (referring to owners Hillsley, Duncan and their private equity firm) charged the associations for millions of dollars in construction expenses, waived reserves illegally, and retains control of the master although turnover has occurred.

According to Haber real estate finance executives Hillsley and Duncan kept a log of expenses throughout construction and presented them to the associations for payment after turnover of Vizcayne North and South had occurred. During construction when the expenses occurred and should have been presented for payment, Hillsley and Duncan had control of the associations.

In an article with Daily Business Review Haber is quoted as saying “It’s about unit owners getting stuck with what the hedge fund should have paid.” He goes on to say, “They made a lot of money on the sale of the units, but they didn’t have the right to stick it to the unit owners. It’s about greed.”

In the FCAP interview Haber outlined the other issues prompting the suit. “RW waived reserves illegally and controls the master even though turnover has occurred.”

During the FCAP interview the question was raised about more associations suing developers and contractors due to the uptick in construction in South Florida. Haber answered that we probably won’t see many cases exactly like this one. It is unique because it deals with bulk assignees who took over the project through a buyout of foreclosure. This is not a case of construction defect or the quality of work due to the construction boom post-recession.
 
The fact that this complaint arose and the missteps happened at all is further evidence of the need for awareness of community associations and the laws that regulate this industry. It is indeed important to note that yes, community associations are where we call home but our homes are also part of an industry.  FCAP will continue to promote awareness of this industry through its Family of Services.

17Oct 2014

The recent shooting at a Palm Beach condominium reminds us all that the place we call home is also a place of business for thousands of professionals across the state. Jeremy Holland, CAM was shot in the head at close range by a former employee.
 
In a story that ran recently by WPBF reporter, Chris MGrath it says “Charles Croghan, 72, is charged with attempted murder, accused of shooting his former boss last Friday (October 3, 2014).

Croghan, a former doorman at a Palm Beach condo, fired just one shot at close range, striking the property manager, Jeremy Holland, in the head, according to the probable cause affidavit.”
McGrath’s story goes on to say ‘Court documents show Croghan shot his former boss in a management office then walked back into the front lobby where a secretary confronted him.

Investigators with the Palm Beach Police Department wrote Croghan pointed his gun at the woman and said, “You’re next. You want one of these?”’

FCAP – Florida Community Association Professionals continues to promote awareness of community associations as a professional industry in this state. In a June, 2014 article relationship columnist Betsy Barbieux, CAM, CFCAM defines workplace violence; “According to the Department of Labor, workplace violence is any act or threat of physical violence, harassment, intimidation, or other threatening, disruptive behavior that occurs at the work site. It ranges from threats and verbal abuse to physical assaults and even homicide.” http://www.fcapgroup.com/flcaj/flcaj-articles/relations-factions-ethics-bullies-and-workplace-violence/

As a unit or homeowner in a community association what can an association do to protect employees and residents from harm? Adia Walker with Florida Community Association Journal writes, “Life safety should be a priority for all community associations who want to protect their residents and staff while providing a quality environment for people to work and live. Proper preventative actions, careful planning, thorough implementation, and continual maintenance can reduce threats to your community while building peace of mind for your association.” http://www.fcapgroup.com/flcaj/flcaj-articles/life-safety/

McGrath’s October 7 report states that Mr. Holland remained in critical condition at St. Mary’s Medical Center in West Palm Beach. A phone call by FCAP to St. Mary’s Medical Center to check on the condition of Mr. Holland was not returned. FCAP wishes Jeremy Holland and his family the best during this difficult time. It is indeed important to note that yes, community associations are where we call home but our homes are also part of an industry and a workplace for thousands.  FCAP will continue to promote awareness of the community association industry through its Family of Services.

16Oct 2014

Make sure to attend the FLCAJ Readers Choice Award to be held January 15, 2015 at The Show: West Palm Beach.

Congratulations to all the FCAP service provider members who are nominated for the FLCAJ Readers’ Choice Awards. As of today, there are over 300 companies nominated and over 3000 votes cast. To see if your company is nominated, go here.

Nominations and voting closes December 1, so there is still time to participate.  Let me encourage you to nominate your company and get the word out to your clients and associates that you have been nominated. You can direct them to our online voting site.

The award winners will be announced on January 15, 2015, at a special reception at The Show: West Palm Beach. I’ll send you more as we get closer, but in order to take advantage of all that the event offers, you must be an exhibitor. View The Show’s floor plan and for booth information.

Jim

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10Oct 2014

trevaI would like to personally thank all of our sponsors, exhibitors, and attendees for helping make The Show: Orlando a wonderful event. Since we are still receiving feedback from participants, I wanted to share some of their comments with you.

As an outdoor furniture manufacturer, I have attended a lot of shows, even considered another way to market ourselves instead of the shows. We always ran into the same faces who would display so much excitement at the time, but after the fact, got very little response. After having been a part of THE SHOW in Orlando recently, I regained my confidence. Our company was very well received by property mangers and board members we had never made contact with before. Their fascination in what we did and who we were made this the best show our company has ever attended. To this day, we continue to get phone calls and emails from those who visited our booth. The Show: Orlando was truly a wonderful experience.

Gregory Rehorn, Florida Patio Furniture, Corporate Sponsor of The Show: Orlando

 

Thoroughly enjoyed the vendor portion. Made a lot of contacts and collected lots of useful information. Would definitely attend again. The event was well organized. Enjoyed it. Thanks. 

The Show: Orlando attendee

 

I got a lot of information from the exhibitors. Thanks for having a free exhibit and show. This was one of the best shows I ever attended. Thanks for validating parking – that was very nice. 

The Show: Orlando attendee

 

It was a wonderful show – I’m a newly licensed CAM, and I found several vendors to fit the needs of my HOAs. Plus the food and CLE were a very nice bonus! Thanks for putting together the show. 

The Show: Orlando attendee

Our next FCAP event is schedule for January 15, 2015 at the Palm Beach County Convention Center. We hope you will make plans to join us for The Show: West Palm Beach! For more information, please visit www.theshowfl.com.

 

Treva Phelps
Special Events Manager
Florida Community Association Professionals

10Oct 2014

Thank you to Diana Zayas-Bazan, EMA President for inviting FCAP to participate in EMA’s  Annual Business Expo and 2015 Legislative Update on October 7, 2014 at the Doubletree Hilton in Deerfield Beach.  Since its inception in June, 1983, The Executive Manager’s Association (EMA) has become one of the most innovative and impactful, Property Manager and Vendor organizations in South Florida.

23Sep 2014

Have You Registered to Attend? Only 7 Days Left to Register. Don’t Miss Out on Your Opportunity to Rub Elbows With Industry Movers and Shakers at The Show: Orlando, September 26, 2014 at the Orlando World Center Marriott.

 

bp_app_design_20140610_coopFCAP Featured Resource

FT. LAUDERDALE, FL, August 28, 2014 – Volunteer boards and property managers responsible for the operation of condominiums, homeowner’s associations and coops will find their jobs a little easier thanks to a new Smartphone app from the Becker & Poliakoff Community Association Law Practice group.

The new “Pocket Condo, HOA and Coop Guide” is now available for free download on iPhone and Android devices. It can be found in the Apple store for iPhones and iPads by typing in “Condominium, HOA, Cooperative Law,” and in the Google Play store for most Android devices by typing in “Condominium, HOA, Coop Law.”

The app allows residents to search the laws governing their communities using simple key words or browsing the frequently asked questions and answers section with answers provided via video. Board members and managers in condominiums and cooperatives will appreciate the annual meeting calculator, designed to make the strict guidelines for scheduling annual meetings, as set forth by statute, easy to understand and follow.

Other features include the ability to create Board meeting minutes with detailed information about attendance, voting, and agenda items.

“We are committed to providing clients with the technology they need to make their jobs as voluntary board members as productive as possible,” said Ken Direktor, chair of the Community Association Law Practice group at Becker & Poliakoff. “Our app is designed to provide answers to commonly asked questions and help clients gain better access to the information they are seeking.”

The app is available to the public; however, clients of Becker & Poliakoff can also access proprietary information regarding accounts they have in collections through a client log-in portal.

19Sep 2014

What is an Advisory Board and could your organization benefit from one? Community Association Legislative Lobby (CALL), Florida’s leading community association organization recently announced the formation of an Advisory Board which will provide vision, strategy, and outreach to the organization’s leadership team.

Working day-to-day in the community association industry, the term Board of Directors is commonplace. Community associations and many corporations across the state are governed by an elected Board of Directors who has a fiduciary and legal responsibility to the organizations they serve. In contrast, an Advisory Board does not have any formal legal responsibilities. Rather, an Advisory Board is appointed in order to give advice and support.

What qualities should you look for in an Advisory Board?

  • Industry Experience
  • Mentoring
  • Strategic Thinking
  • Credibility

Pio-CALL

Industry Experience
Industry experience is an important qualification for a team member of an advisory board. In this case, experience in carrying out the duties of a community association is crucial.

The CALL Advisory Board encompasses an extraordinary number of years as board presidents and management company executives.

  • Roi Danon, President of Danon Management Group, Delray Beach, FL
  • Ed Duch, Legislative Vice President, Gulf Shore Association of Condominiums (GSAC), Naples, FL
  • Jim Hoppensteadt, President and Chief Operating Officer, Pelican Bay Foundation, Naples, FL
  • Pio Ieraci, President, Galt Mile Community Association and Galt Ocean Club Condominium Association, Ft. Lauderdale, FL
  • Ewing Sutherland, President, Gulfside, Inc., Naples, FL

Ken Direktor, Chair of Becker & Poliakoff’s Community Association Practice Group shared initial thoughts through a recent press release. “We look forward to working with this diverse group of individuals who have deep insight into the challenges and opportunities facing common-ownership residential communities in Florida.”

Mentoring
Ideally it is important for a trusted group of advisors to be able to connect with an organization’s leadership on a professional level but personal connections should be considered, as well. Trust is earned over years of working side-by-side on important and mutually beneficial projects. “I have worked with these advisors for many years to shape positive community association legislation,” said attorney, Donna DiMaggio Berger, a shareholder in Becker & Poliakoff’s Community Association Law Group.

Donna-Yeline

Strategic Thinking
Development of new programs and products is important to the success of an organization. A trusted team of advisors can be invaluable in strategic planning for product development and implementation. Ms. Berger went on to share how this group will be able to provide the insight and planning they need. “Their willingness to serve on CALL’s Advisory Board will enable us to gain valuable input on CALL’s legislative agenda as well as to broaden the scope of our outreach and the distribution channels for our many resource materials.”

Credibility
Access to and representation by trusted decision makers with longstanding ties to the community brings credibility to an organization.

Becker & Poliakoff attorney Yeline Goin, who serves as CALL executive director and lobbyist said, “These advisors will enable us to gain valuable input on CALL’s legislative agenda while providing a local connection between CALL and members of the Florida Legislature.”

Pio Ieraci of the Galt Mile Community Association commented, “I am honored to serve on CALL’s inaugural Advisory Board and, along with my fellow Board Members, am dedicated to spreading CALL’s important mission of outreach, advocacy, and education.”

Click here to read CALL’s press release in its entirety.

11Sep 2014

 

Leaders from Community Advocacy Network (CAN) and Chief Executive Officers of Management Companies (CEOMC) held a joint Community Association Legislative Town Hall in Orlando Florida on September 5, 2014. FCAP’s Richard Johns attended and provides the following information.
 
Senator David Simmons, Senator Geraldine Thompson, Representative Dennis Baxley, Representative Tom Goodson, Representative Victor Torres, and newly elected Representative Jennifer Sullivan met with community association leaders and shared their thoughts on the past year’s legislation that impacted managers’ duties as well as the cost of doing business for community associations. Continue reading

11Sep 2014

I know that no one wants to think about it, but that dreaded time has come again. It’s time to get to work on the annual Association budget. While the budget process is very straight forward, the emotions it often brings out in owners, board members, and residents are not. The budget process has to balance competing interests, some want the lowest possible increase while some want more services, better amenities, or improved maintenance. All of these have to be balanced with what is required in addition to the resources of the Association and its owners.

A few budget facts you should know: Continue reading

05Aug 2014

b760ab04-24ab-4744-a91d-6f773c9d7885Managers and Board Members: Registration is now open for The Show: Orlando! Visit our website at www.theshowfl.com to check out the schedule and CEU class offerings and to register!
 
Service Providers: Booths are still available at The Show: Orlando. Don’t miss your opportunity to network with community association board members and managers. Reserve your booth today.

29Jul 2014

Over two years ago, when asked the question: “With so many local organizations, why is there a need for a new one?”  FCAP Director Jim McMurry answered: “At the ground level, FCAP is both an educational and advocacy organization. We intend to raise the awareness of the professional nature of our member managers and service providers, while providing extensive education to all levels of the industry.”   
 
FCAP hasn’t taken their eye off that goal, and we remain an organization committed to education and an advocate for community associations across the state of Florida.  We are very proud of all of our members and extend our gratitude to those that have renewed their memberships and welcome our newest members. Continue reading

11Jul 2014

Registration is now open for The Show: Orlando. We are pleased to offer multiple opportunities to obtain CEU credits, as well as offering a Board Certification Course. Visit our website at www.theshowfl.com to view the schedule, explore the educational options, and register for The Show!

CEU Classes

The Show: Orlando is pleased to bring you the following CEU classes. All classes are offered free of charge and will be held at The Show: Orlando on September 26, 2014 at the Orlando World Center Marriott.

Preregistration is not required, but is strongly recommended. Continue reading

03Jul 2014

 

Sometimes we need to take a breath and realize how truly blessed we are to live in this country. Recently I was complaining about something rather insignificant…..a little embarrassed about this…having to park too far from the entrance to the store I needed to visit. Megan, my daughter, looked at me and said, “That’s such a first-world problem!” That one simple statement really hit me hard and has stuck with me ever since. Continue reading

30Jun 2014

Please forgive me for hijacking the FCAP newsletter this week, but I want to give you some important news. Last week we revealed the new FCAP logo and made reference to the changes that are coming soon. I want you to be the first to see them and also want to give you the reasons behind why we are making the changes.

Beginning early next week, all of the websites associated with FCAP – flcaj.com, theshowfl.com, condojobs.com, and fcaponline.net will redirect to our new website FCAPgroup.com.  From there you can easily access the different services that FCAP offers. Although it is not general knowledge (and still has a couple of kinks to work out), the site is live and accessible if you’d like to take a look. Continue reading