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Rembaum's

Association

Roundup

By Jeffrey A. Rembaum, Esq.

Jeffrey Rembaum, Esq. is a community association lawyer with the law firm Kaye Bender Rembaum, in its Palm Beach Gardens office.  His law practice consists of representing condominium, homeowners, and cooperative associations, developers and unit owners throughout Florida.  He can be reached by email at JRembaum@KBRLegal.com or by calling 561-241-4462 or toll free: 1-800-974-0680.

Last Updated 08/27/2015

The Community Association News 

That You Can Use!

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(8-19-15)

Fining and Suspending Use Rights

"Pursuant to the New Legislation Effective July 1, 2015"

On July 1, 2015, new provisions which clarify the procedures for fining and use right suspensions for non-monetary violations became effective. The term "non-monetary violations" refers to such things as failing to pressure clean roofs and driveways, to remove dead trees, to bring in the garbage cans and to pick up after your pet, etc., and obviously excludes delinquent monetary obligations.

These new provisions were put into place to clarify the manner in which an association’s board of directors and its fining and suspensions committee coexist. Prior to these provisions, there were some who were unsure as to whether the fining and suspensions committee would first meet and then the board of directors would levy the fine, or if the board of directors would first meet, determine the amount of the fine, and then the fining committee would meet to provide the offending owner with the opportunity to be heard. Now, it is patently clear. The board must take action first.

According to these recent amendments to Chapters 718, 719 and 720 of the Florida Statutes, regarding condominiums, cooperatives and homeowners’ associations, respectively, an association’s board of directors must first levy the fine or enact a use right suspension for a non-monetary violation at a properly noticed board meeting. After, the person who is to be fined or suspended must then be provided with at least fourteen days’ notice and an opportunity for a hearing before the fining and suspensions committee. If the fining and suspensions committee does not exactly agree with the board, then the fine or use right suspension may not be enacted.

With that in mind, the role of the fining and suspensions committee is strictly limited to determining whether to confirm or reject the fine or use right suspension levied by the board of directors. The committee cannot make any changes whatsoever to the fine or use right suspension enacted by the board as any such change would constitute a rejection of the fine or use right suspension levied by the board.

As a matter of practicality, if the fining and suspensions committee rejects the fine or use right suspension, the board could start its decision making process anew or the fining and suspensions committee could make a recommendation to the board as to what it would approve. In either event, it begins the fining and use right suspension process anew. This means that the offending member should also be provided another fourteen days’ notice and opportunity to appear in front of the fining and suspensions committee before the recommended fine or use right suspension becomes effective.

Condominium and cooperative associations can only file a lawsuit seeking a money judgment in order to collect unpaid fines. While homeowners’ associations can also similarly seek a money judgment, if the homeowners’ association’s declaration provides for fines exceeding a total of $1,000.00 and also allow a fine to become a lien, then the homeowners’ association may use the foreclosure process to collect an unpaid fine. In all cases, in any action to recover a fine, the prevailing party is entitled to recover their reasonable attorneys’ fees and costs from the non-prevailing party, as determined by the court.

Fines apply to the owner and, if applicable, to any tenant, licensee or invitee of the owner. Use right suspensions apply to the property’s occupant, licensee or invitee, which includes tenants, and still applies even if the violation that resulted in the suspension arose from less than all of the multiple properties owned by a member. Also, the terms of the association’s declaration likely provides that the owner is ultimately responsible for the acts of their tenants, guests and invitees.

For condominium and cooperative associations, the fining and suspensions committee is comprised of unit owners who are neither board members nor persons residing in a board member’s household. For homeowners’ associations, the fining and suspensions committee is comprised of at least three members who are not officers, directors or employees of the association, or the spouse, parent, child, brother or sister of an officer, director or employee.

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(8-5-15)

2015 Legislative Update

Although Florida’s 2015 Legislative Session ended earlier than expected when the House of Representatives abruptly adjourned prior to the scheduled end of the Session, some new legislation affecting community associations was passed and subsequently signed into law by the Governor and became, for the most part, effective July 1, 2015. Following is a brief summary of these new laws.

ELECTRONIC VOTING

Electronic voting is now available for condominium, cooperative and homeowners’ associations. Under these new provisions, an association, through resolution of the board, may conduct its elections and any other owner votes through an online voting system.

1) The advanced written consent of the owner is required in order to participate in online voting.

2) The association is required to provide:

(a) a method to authenticate the owner’s identity to the online voting system;

(b) a method to confirm, at least 14 days before the voting deadline, that the owner’s electronic device can successfully communicate with the online voting system;

(c) for condominium and cooperative elections of the board, a method to transmit an electronic ballot that ensures the secrecy and integrity of each ballot; and

(d) for homeowners’ association elections of the board, a method that is consistent with the homeowners’ association’s election procedures as set out in its bylaws.

3) The online voting system must be able to authenticate the owner’s identity and the validity of each electronic vote to ensure that the vote is not altered in transit.

4) A receipt for the vote received through the online voting system must be provided to the owner.

5) For board member elections, the electronic voting system must be able to permanently separate any authentication or identifying information from the electronic election ballot so that it is impossible to tie an election ballot to a specific owner.

6) The voting system must also be able to store and keep electronic votes accessible for recount, inspection and review purposes.

7) In order to use this voting procedure, the board of directors must adopt a resolution containing specific requirements, including notices to the owners of the option, requirement of their consent and opportunity to opt out. If the resolution is to be considered at a board meeting, written notice of that meeting must be mailed, delivered or electronically transmitted to the owners and posted at the property.

8) Once an owner consents to online voting, the consent is valid until the owner opts out.

FINING AND SUSPENSION OF USE AND VOTING RIGHTS

Clarification is provided to condominium, cooperative and homeowners’ associations regarding the order of the proceedings that are necessary for imposing a fine or use right suspension for non-monetary violations. First, the board must levy the fine or use right suspension, and then the offending owner must be provided at least 14 days’ notice of the fining/suspension committee’s meeting where it will hold a hearing to approve or disapprove the fine or use right suspension for non-monetary violations levied by the board. If the committee does not agree with the fine/suspension, then it cannot be imposed against the offending owner.

The legislation also clarifies that the role of the committee is only to confirm or reject the fine or use right suspension (non-monetary) levied by the board. This means that if the committee wishes to impose a fine of a different amount, it is powerless to do so. Rather, the modification of the fine would have to be done at a properly noticed board meeting first.

As to cooperative associations, the qualifications for those who serve on the fining committee must be "other owners who are neither board members nor persons residing in the board member’s household."

Both the Condominium Act and Homeowners’ Association Act were amended to clarify that:

1) the "monetary obligations" that qualify for suspension of use rights include a fee, fine or other monetary obligation;

2) when the voting rights of an owner are suspended, the total number of eligible units is reduced for the purpose of calculating the necessary percentage to pass a proposal;

3) any authorized suspension applies not only to the member, but also to the tenants, guests or invitees, and even if the delinquency or failure that resulted in the suspension arose from less than all of the multiple units or lots owned by a member. This means that if an owner owns three units and is delinquent more than 90 days on one of the units, the voting rights on all three units may be suspended.

PROXIES

As to condominium, cooperative and homeowners’ associations, a complete copy, facsimile transmission or other reliable reproduction of the original proxy may be used instead of requiring the original proxy. This change appears to formally legalize a process already in existence by many associations and applies to all not-for-profit corporations, which includes condominium, cooperative and homeowners’ associations.

INSURANCE

As to condominiums, if there is no insurable casualty event that caused the damage, the maintenance provisions of the governing documents are to be used to provide for the determination of responsibility for the repairs caused by events other than casualty.

OFFICIAL RECORDS

As to condominiums, relative to the "catch-all" provision of what is identified as the Official Records of a condominium association, open to inspection to owners or their authorized representatives, has been modified to add the word "written" regarding such records.

MEETING NOTICES

It is no longer required to have the authority in the association’s bylaws to use electronic mail (e-mail) for association notices. As a result, all meeting notices, including for condominium, homeowners’ and cooperative board and committee meetings, may be provided by e-mail. However, the requirement that owners provide their advanced written consent to receive such notices by e-mail, remain. So, the owners must still opt-in to receive electronic notices.

ANNUAL BUDGETS

As to condominiums, statutory provisions regarding the annual budget have been revised to clarify that minimally, the items listed in section 718.504(21), Florida Statutes, must be included in a proposed budget. Although no substantive provisions were made, the provisions addressing reserves have been split into two parts, with subsection (a) addressing the reserves in general, and subsection (b) addressing reserves before the turnover of control of the association by the developer to the non-developer owners. Subsection (b) further clarifies the ability of the developer to vote its units to waive reserves.

ASSESSMENT PAYMENTS

As to condominium and cooperative associations, a legislative fix was provided in response to St. Croix Lane Trust v. St. Croix at Pelican March Condominium Association, Inc., 144 So.3d 639 (Fla. 2d DCA 2014) regarding the application of accord and satisfaction to a restrictive endorsement placed on an assessment payment. These sections have been revised to clarify that the application of payments made on a delinquent account are to be applied in the manner specified within the Florida Statutes, notwithstanding any purported "accord and satisfaction" or settlement agreement claimed by the payer by delivery of the payment. These provisions also state that they are intended to clarify existing law, which makes the application of the change retroactive. Noticeably lacking is a similar amendment to the Homeowners’ Association Act.

BULK BUYERS

This legislation applies to the condominium bulk assignee or bulk purchaser of units, and extends the period of time for qualification from July 1, 2016 to July 1, 2018. In plain English, this means an investor can acquire seven or more condominium units without concern of acquiring the predecessor developer’s liability for such things as construction defects and other obligations.

HOA RULES AND REGULATIONS

The rules and regulations of the homeowners’ associations are now included within the definition of the "governing documents."

CHAPTER 720, FLORIDA STATUTES

This new statute appropriately names Chapter 720, Florida Statutes, as the "Homeowners’ Association Act."

TENANT PROTECTION

A new section 83.561, Florida Statutes, has been added, entitled "termination of rental agreement upon foreclosure." This new Statute creates certain rights and entitlements in tenants following the foreclosure sale.

The tenant is allowed to remain in possession of the premises for a 30 day period following the date that the purchaser at the foreclosure sale delivers the 30-day notice of termination. The Statute also provides a form of suggested language that the 30-day notice should include. A writ of possession may only be applied for after the expiration of the 30-day period.

 

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(7-22-15)

Florida’s New Service Animal Laws

A Nail without a Hammer

When it comes to service dogs and assistance animals, people often confuse the Federal American with Disabilities Act (ADA) with the Federal Fair Housing Act (FHA). The ADA laws apply only to commercial (non-residential) settings. They apply to specifically trained service dogs (and the very occasional miniature horse). The ADA laws specifically exclude emotional support animals of any kind. On the other hand, the FHA laws apply to residential communities and apply to pretty much all domestic animals, including dogs, cats, pot belly pigs, etc. The FHA laws allow a person living in a residential community access to both specifically trained and untrained animals and, importantly, include the sub-category of the much beloved emotional support animal, especially when they might be otherwise prohibited by the community’s governing documents. While the ADA uses the term "disability" and the FHA uses the term "handicap", these two terms are, for all intents and purposes, interchangeable.

What is missing from both the FHA and the ADA are penalties to prevent against fraudulent misuse of both acts. In trying to create conformity with FHA and the ADA protections and greater protection against fraud, the Florida Legislature has brought the definition of an "individual with a disability" as set out in Chapter 413, Florida Statutes, into conformity with both the definitions for the terms "disability" and "handicap" as set out in the ADA and FHA, respectively. Florida’s newest legislation also defines the term "service animal" similar to the ADA legislation to mean an animal that is trained to do work, or perform tasks, for an individual with a disability and clarifies that the crime- deterrent effect of an animal’s presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for purposes of this definition. But, a service animal does include a dog (or miniature horse) trained to assist mentally and emotionally disabled individuals with such tasks as helping an individual with a psychiatric or neurological disability by preventing or interrupting impulsive or destructive behaviors, reminding an individual with mental illness to take prescribed medications or calming an individual with posttraumatic stress disorder during an anxiety attack. The important distinction is the dog’s training.

It is important for community associations to remember that, although this new State law exists, community associations must ensure that they do not run afoul of the Federal Fair Housing Act by requiring that an "assistance animal" be a dog or be specifically trained to assist with the disability. If so, then FHA penalties will apply.

Chapter 413, Florida Statutes, also provides that a disabled person is entitled to rent, lease or purchase any housing accommodations offered for rent, lease or purchase in this state as any other member of the general public would be entitled and is entitled to full and equal access to all housing accommodations and cannot be required to pay an extra fee for the service animal, which is in conformity with its Federal counterparts, the ADA and the FHA.

What has really gotten people talking is that this new law makes it a second degree misdemeanor offense for a person to knowingly and willfully misrepresent herself or himself, through conduct or verbal or written notice, as using a service animal, being qualified to use a service animal or as a trainer of a service animal. Those who are found to have done so may serve up to 60 days imprisonment or pay a fine of $500.00 and must perform 30 hours of community service for an organization that serves individuals with disabilities or for another organization selected by the court to be completed in not more than six months. So, what does all this mean? It means that while there is a penalty for misrepresentation where it concerns a trained service dog or miniature horse, there is still no penalty ascribed for the one major area where the most abuse occurs, that of the qualification to own an emotional support animal! In summary:

• As to residential settings inclusive of Florida’s community associations, if the dog is specifically trained to assist its owner with a handicap or disability, then the FHA and the laws set out in Florida’s Chapter 413 apply. Fraudulent penalties apply.

• If an animal is not trained and otherwise qualifies as an emotional support comfort animal, then only the FHA applies. No fraudulent penalties apply.

• As to non-residential settings, if the animal is a dog or miniature horse and is specially trained, then the ADA and Florida’s Chapter 413 apply. Fraudulent penalties apply.

With all that in mind, I’m still waiting to see a miniature horse riding in the elevator of a commercial condominium who is specially trained to alert its owner to take his or her medications. One day, I fully expect the elevator doors to open and a miniature version of Mr. Ed to look up and say, "Hello Willllllbur."

 

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(7-8-15)

New Provision Regarding Fining and Use Right Suspensions

Prior to recent amendments to the procedures for fining and use right suspensions for non-monetary violations, which amendments became effective on July 1, 2015, there was a gap in the Florida Statutes regarding the manner in which a community association’s board of directors and its fining and suspensions committee coexisted, meaning there was no clear guidance with regard to whether the fining committee would first meet and then the board would levy the fine or if the board would first meet, determine the amount of the fine and then the fining committee would meet to provide the offending owner his opportunity to appear. That said, it was clear that if the fining committee did not agree with the fine, then the board could not authorize its levy against the offending owner. Well, now there is great clarity as to the procedural requirements.

Pursuant to the recent amendments to Chapters 718, 719 and 720 of the Florida Statutes, regarding condominiums, cooperatives and homeowners’ associations, respectively, the association’s board of directors must first levy the fine or use right suspension for non-monetary violations at a properly noticed board meeting. After the board of directors has levied the fine or use right suspension for non-monetary violations, the person who is to be fined or suspended must be provided with at least fourteen (14) days’ notice and an opportunity for a hearing before a fining and suspensions committee. The fining and suspensions committee must be comprised of other owners who are neither board members, nor persons residing in a board member’s household. The role of the fining and suspensions committee is limited to determining whether to confirm or reject the fine or use right suspension for non-monetary violations levied by the board of directors.

If the fining and suspensions committee does not approve the fine or use right suspension for non-monetary violations EXACTLY as levied by the board of directors, the fine or use right suspension for non-monetary violations cannot be imposed. If the fining and suspensions committee does approve the fine or use right suspension for non-monetary violations, which must be done by a majority vote, the association must then provide the person to be fined or suspended with written notice of the fine or use right suspension by mail or hand delivery.

Although the association may suspend the right to use the common areas, common elements, common facilities and association property, generally a use right suspension, whether for monetary or non-monetary violations, does not apply to that portion of common areas, common elements, common facilities and association property used to provide access or utility services to the owner’s property.

With specific regard to homeowners’ associations, prior to the recent amendments to the fining and use right suspensions for non-monetary violations provisions, a suspension of use rights could not impair the right of an owner or tenant to have vehicular and pedestrian ingress to and egress from their property, including, but not limited to, the right to park. However, as of July 1, 2015, this language has been revised to provide that a use right suspension may not prohibit an owner or tenant from having vehicular and pedestrian ingress to and egress from their property, including, but not limited to, the right to park.

The change from "impair" to "prohibit" in the Homeowners’ Association Act is significant in that the 2015 statute suggests that a homeowners’ association can impair vehicular and pedestrian ingress to and egress from the owner’s or tenant’s property so long as such impairment does not prohibit such access. For example purposes only, in gated communities, this new language lawfully allows a homeowners’ association to force the owner or tenant to use the guest lane, instead of the resident’s lane, at the community’s entrance gate.

For condominiums and cooperatives, a use right suspension does not apply to limited common elements intended to be used only by that unit, parking spaces, or elevators. Additionally, as of July 1, 2015 for condominium associations only, a use right suspension applies to a unit owner who owns multiple units even if the delinquency or violation that resulted in the use right suspension arose from less than all of the multiple units owned by that owner. This means that if an owner, who owns three units, has his use rights suspended due to a continued delinquency associated as to only one of the units, then, nevertheless, the suspension would apply to all of the units and not just the unit associated with the delinquency.

 

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(6-24-15)

Terminating the Condominium Terminator; Rembaum’s Association Roundup’s First Ever Award of Excellence

On Saturday, June 20, 2015, Palm Beach Post staff-writer, Tony Doris, reported that condominium owners in Century Village’s "Sheffield O" condominium are under the very real threat of a condominium termination from an investor who is continually purchasing units in the condominium. Century Village is a 600 building, 55 and older (better) community. Century Village was developed in the 1970s by H. Irwin Levy, a real life condominium superhero. Not only did he develop the community that combines affordable home ownership and community based activities for seniors, but 40 years later, he is ready to don a red cape and be a superhero by defending those seniors who chose to purchase units in his community and cannot afford the battle that may need to be fought to continue to live there.

Imagine moving to the Sunshine State and purchasing what you hope is your last home in an affordable community geared for seniors. Then, imagine being told your home is being sold against your will and you’ll receive only the present fair market value of your home, likely leaving you in debt to your mortgage company. How can such a thing happen you ask? Florida’s legislation regarding termination of condominium, section 718.117, Florida Statutes, –that’s how.

The condominium termination legislation was primarily enacted to deal with several problems which include destruction due to casualty and circumstances which may create "economic waste, areas of disrepair, or obsolescence of a condominium property for its intended use and thereby lower property tax values." Nowhere in the legislation does it address terminating the condominium for the benefit of a private investor. But, like any other piece of legislation, there are always unintended consequences. And, such an unintended consequence is why owners in the Sheffield O Condominium are justifiably worried.

All that it takes to terminate a Florida condominium is 80% of the owners to vote in favor of a plan of termination and not more than 10% of the owners to formally object to it. This process is referred to as an "optional termination."

In the present version of the condominium termination legislation there is no requirement for the owners to be made, at least minimally, financially whole. So, the condominium termination plan could be put into effect and an owner could be forced to move out and still be on the hook for thousands of dollars still owed to their lender. One small silver lining is that, effective July 1, 2015, if the condominium is terminated under the optional termination process, all mortgages for those who homesteaded their home must be fully satisfied. While that won’t solve every problem, such as securing a new home for those forced out and coming up with a new down payment, at least the unfortunate owners being forced out against their will who are homesteaded in Florida will not end up upside down to their lender while having to find a new home. But there is no such benefit if the owner has not homesteaded their home.

According to the Palm Beach Post, the investor, "a Palm Beach Gardens resident who owns 15 of the 24 units in Sheffield O and has an interest in two more, wrote to the remaining owners in the Sheffield O Condominium that he plans to dissolve its condominium association and force them to sell to him at the price the Palm Beach County Property Appraiser puts on the units." H. Irwin Levy was quoted as saying, "We’re going to take on this man, have a letter written to him, and whether he backs off..., we’ll see what happens but we’ll take on the cost so these people aren’t penalized for trying to protect their interests."

To prevent problems, such as what may occur to the owners in the Sheffield O Condominium, the condominium termination legislation needs further amending to provide clear authority to the court to deny the optional termination when it’s clear that the termination is being undertaken to inure to the benefit of a private investor to extreme detriment of existing owners, unless the investor undertakes financial responsibility to secure new housing equal to or better than the terminated condominium plus moving costs for the powerless minority opposing the termination. In addition, the same benefits should be available to those who have homesteaded their property as to those who have not done so.

Here is a real brain teaser to consider: Recently, the Fourth District Court of Appeal in Pudlit 2 Joint Venture, LLP v. Westwood Gardens Homeowners Association, Inc., Case No. 4D14-1385 (Fla. 4th DCA May 27, 2015), held that the safe harbor legislation (section 720.3085, Florida Statutes) adopted in 2008, which was before a borrower entered into its mortgage and before a third party investor acquired the property, did not take priority over the language set out in the homeowners’ association’s declaration, which provided that neither the lender nor a third party purchaser who acquires the property as a result of the foreclosure has any assessment liability for past due assessments. So, reasoning by analogy, given that condominiums are purely creatures of the legislature, meaning that without Chapter 718, no condominium would exist, how can the condominium termination legislation, which is relatively recent legislation, disturb the rights of condominium unit owners by terminating the condominium in a way not foreseen by the purchaser upon acquiring the unit and certainly not foreseen when the condominium was created? This is the point Levy was making when he was quoted by Tony Doris as saying "[the investor] certainly can’t change people’s rights to their homes retroactively."

By now, it should be self-evident why H. Irwin Levy is deserving of Rembaum’s Association Roundup’s very first Award of Excellence. Not only did he develop the Century Village community over 40 years ago, but, more importantly, he is standing by its residents some 40 years later to try to prevent what he sees as an extreme injustice and apparently willing to fund it, too.

Kudos to Tony Doris for writing the story that appeared in the June 20, 2015 edition of the Palm Beach Post; kudos to the editors who not only published this story, but put it on the first page; and most of all kudos to H. Irwin Levy for standing up for and standing with the owners of Sheffield O.

 

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(6-10-15)

The Safe Harbor Statute Is Not So Safe After All

On May 27, 2015, Florida’s Fourth District Court of Appeal entered its whirlwind decision in Pudlit 2 Joint Venture, LLP v. Westwood Gardens Homeowners Association, Inc., Case No. 4D14-1385 (Fla. 4th DCA May 27, 2015). This case rocks the boat in what was considered the "safe harbor," referring to the limitation of a first mortgagee’s liability for assessments which result from the first mortgagee obtaining title as a result of its mortgage foreclosure action or by deed in lieu of foreclosure as set out in section 720.3085, Florida Statutes (the "Safe Harbor Statute").

Most, if not all, homeowners’ associations throughout Florida take the position that the Safe Harbor Statute takes priority over any conflicting terms set out in the association’s declaration. However, at odds with this notion is that the declaration is a contract between the members of an association and the association itself. The substantive law in effect at the time a contract is made is a part of the contract as if it were written therein. Associations take the position that the Safe Harbor Statute is a procedural law and therefore controlling over any provisions to the contrary set out in the declaration, especially to mortgages entered after July 1, 2008 which was when the present Safe Harbor Statute became law. Lenders and third party bidders who acquire property as a result of the lender’s mortgage foreclosure take the position that the Safe Harbor Statute is substantive, and therefore, to apply the Safe Harbor Statute to a declaration that provides otherwise is an impairment of contract prohibited by the Constitution itself.

In this case, which will no doubt muddy third partly assessment liability quite a bit, Pudlit 2 Joint Venture, LLP ("Pudlit") purchased two properties at foreclosure sales that were located within communities maintained by Westwood Gardens Homeowners Association, Inc. ("Westwood Gardens HOA"). As a result, Westwood Gardens HOA then demanded that Pudlit pay all assessments, including all assessments which came due before Pudlit acquired title to the properties. Pudlit paid the assessment arrearage amounts demanded, however it did so "under protest and with full reservation of all rights and remedies." After which, Pudlit sued Westwood Gardens HOA seeking recovery of the monies paid, asserting breach of contract, referring to Westwood Gardens HOA’s declaration of covenants which is in and of itself a contract between the owners and the association, and for declaratory relief. In the end, the Court ruled in favor of Pudlit and, in so doing, held that the terms of Westwood Gardens HOA’s declaration controlled over the Safe Harbor Statute.

Had Pudlit not clearly and overtly established that it paid the assessment arrearage under protest and with a full reservation of rights, then it very well may have not been in a position to file its lawsuit. This is because when a person, the payor, freely pays an alleged debt due, without a reservation of rights of any kind and later files a lawsuit seeking a recovery of its monies from the payee, the payee can defend the case by arguing that the payor voluntarily paid the debt freely and voluntarily and thus waived any later right of protest. (We will have to see how these competing arguments resolve themselves in future court battles.)

Of relevance to the Pudlit case, Westwood Gardens HOA’s declaration of covenants provided that:

"The personal obligation for delinquent assessments shall not pass to [an owner’s] successors in title unless expressly assumed by them.

Sale or transfer of any Lot which is subject to a mortgage as herein described, pursuant to a decree of foreclosure thereof, shall extinguish the lien of such assessments as to payments thereof which become due prior to such sale or transfer."

Such language is in conflict with the Safe Harbor Statute, which provides that a first mortgagee’s liability for assessments which accrued prior to the first mortgagee obtaining title as a result of its foreclosure action or by deed in lieu of foreclosure is limited to one percent of the original mortgage debt or twelve months assessments which accrued prior to the first mortgagee obtaining title. The Safe Harbor Statute, additionally provides that all other successors in interest are jointly and severally liable for all past due assessments, with exception for assessments charged during an association’s ownership of the property.

Applying a constitutional principal which prohibits the impairment of contracts, the Court held that the Safe Harbor Statute, could not impair (meaning, override) the provisions of Westwood Gardens HOA’s declaration of covenants, unless the plain language of the statute requires such application or the declaration of covenants contains "Kaufman" language, which has the effect of making amendments to the Florida Statutes automatically applicable to an association’s declaration of covenants as the Florida Statutes are "amended from time to time." The Court further held that the provisions of Westwood Gardens HOA’s declaration of covenants expressly created rights for third party purchasers who are "intended third party beneficiaries" to such provisions which rights cannot be impaired pursuant to the same constitutional principal.

Although the Pudlit case is with regard to a third party’s liability for assessments which accrued prior to the third party obtaining title at a foreclosure sale, this decision will impact the manner in which assessments due on a property are analyzed in the "safe harbor" context. Pudlit essentially provides that, unless the statute provides for automatic application or unless the declaration contains "Kaufman" language, the terms of the declaration will prevail over the provisions of the statute.

As with many declarations which have not been amended since their creation by the community’s developer, declarations may provide for a wipe out of all assessments that accrued prior to the first mortgagee obtaining title as a result of its foreclosure action or by deed in lieu of foreclosure. The Pudlit case further emphasizes the importance of reviewing and updating your association’s declaration to ensure that it provides for necessary and available protections for the association and its members which includes the importance of including "Kaufman" language.

If your association’s declaration does not contain language similar to the following sentence, then the board should consider further discussing this important matter with the association’s legal counsel:

This Declaration is subject to Chapter 720, Florida Statutes, as it is amended from time to time.

 

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(5-27-15)

The Unlicensed Practice of Law:

What It Is, What It Isn’t and What it Might Be

On May 14, 2015, the Supreme Court of Florida issued an Advisory Opinion regarding which activities of community association managers are and are not considered the "Unlicensed Practice of Law" (UPL). The Advisory Opinion is No. SC13-889. In the Advisory Opinion, the State’s highest Court adopted the position of the Florida Bar’s Standing Committee on UPL which in part i) reaffirmed the Court’s 1996 advisory opinion of Florida Bar re Advisory Opinion-Activities of Community Association Managers, 681 So.2d 1119 (Fla. 1996), ii) expanded on certain activities that are considered UPL, iii) explained that certain activities may or may not be UPL depending on the circumstances, and iv) may have created some confusion which will be cleared up for the readers of this article. By way of background, Court’s adoption of the Advisory Opinion has the same force and effect of an order issued by the Court, and readers should take note that the Florida Legislature enacted laws in 2014 pertaining to this very subject that in a few instances are contrary to the Court’s adoption of the Advisory Opinion. To clear up the potential confusion, know this – the Court’s May 14, 2015 adoption of the Florida Bar’s Standing Committee Advisory Opinion on UPL trumps the 2014 legislation.

New legislation adopted on July 1, 2014 to section 468.431, Florida Statutes provided additional activities that a community association manager may perform. Of relevance to the Court’s adoption of the Advisory Opinion, section 468.431(2), Florida Statutes, provides that a community association manager may determine the number of days required for statutory notices and may calculate the votes required for a quorum or to approve a proposition or amendment. While such activities may be within the community association manager’s ability to perform, the Advisory Opinion provides that these activities may constitute the unlicensed practice of law depending on the specific factual circumstances.

Further, the changes to section 468.431(2), Florida Statutes, also adopted on July 1, 2014, provides that a community association manager may negotiate monetary or performance terms of a contract subject to approval by an association and may complete forms related to the management of a community association that have been created by statute or state agency, which includes release of lien, pre-lien notice and pre-foreclosure notice forms. However, because the Supreme Court of Florida has now ruled that the drafting a claim of lien and satisfaction of lien form and that the preparation, review, drafting and/or substantial involvement in the preparation/execution of contracts (construction contracts, management contracts, cable television contracts, etc.) constitute the unlicensed practice of law when performed by a community association manager, the related activities as provided by section 468.431(2), Florida Statutes adopted, are greatly abridged and are abrogated by the Court’s adoption of the Advisory Opinion.

The following activities when performed by a community association manager are NOT considered UPL and may be properly conducted by a community association manager:

• Completion of the change of registered agent or office for corporations form and the annual corporation report form as provided by the Secretary of State,

• Drafting certificates of assessments,

• Drafting first and second notices of the date of an election,

• Drafting ballots,

• Drafting written notices of annual or board meetings,

• Drafting annual meeting or board meeting agendas,

• Drafting affidavits of mailing, and

• Drafting a pre-arbitration demand letter required by section 718.1255, Florida Statutes.

On the other hand, the following activities are considered UPL when performed by a community association manager (or other non-lawyer):

• Completing a frequently asked questions and answers sheet (DBPR Form 33-032),

• Drafting a claim of lien, satisfaction of lien and notice of commencement form,

• Determining the timing, method and form of giving notice of meetings,

• Determining the vote necessary for certain actions which would entail interpretation of certain statutes and rules,

• Answering a community association’s questions 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,

• Drafting amendments to the association’s governing documents,

• Preparing, reviewing, drafting and/or substantial involvement in the preparation/execution of contracts, including construction contracts, management contracts, cable television contracts, etc., and

• Any activity which requires statutory or case law analysis to reach a legal conclusion.

Those activities that may or may not be considered UPL and fall into a gray area depending on the specific factual circumstances are:

Modification of limited proxy forms created by the state or drafting a limited proxy form – Modifying the limited proxy form to include the name of the association or to certain "yes" or "no" voting questions would not be considered the unlicensed practice of law; however, modifications which are more than ministerial in nature require the assistance of an attorney (i.e.: drafting questions which requires discretion in the phrasing or involves the interpretation of statute or legal documents).

Drafting documents required to exercise the community association’s right of approval or right of first refusal on the sale or lease of a property – A community association manager may prepare these documents but cannot advise the association as to the legal consequences of taking a certain course of action, which can only be performed by an attorney.

Determining the number of days to provide statutory notice – If this requires the interpretation of statutes, administrative rules, an association’s governing documents or the rules of civil procedure, then it must be done by an attorney; otherwise, it may be performed by a community association manager.

Determining the affirmative votes needed to pass a proposition or amendment or the owners’ votes needed to establish a quorum – If this requires the interpretation and application of statutes and an association’s governing documents, then it must be done by an attorney; otherwise, it may be performed by a community association manager.

Identifying, through review of title instruments, the owners to receive pre-lien letters – The community association manager may make a list of all records owners, however, the community association manager cannot then use the list to determine who needs to receive a pre-lien letter.

 

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(5-13-15)

Survivors of Florida’s 2015 Legislative Session: Waiting to Become Law, Unless Vetoed

Sometimes the right thing happens for the wrong reasons. This is one of those times. Much of our prior discussion regarding Florida’s 2015 Legislative Session was centered on the overtly draconian Estoppel Bill (House Bill 611 together with its companion, Senate Bill 736) and the financial harm it would have caused to community associations throughout Florida if passed into law. While the Estoppel Bill showed all signs of becoming law, because Florida’s House of Representatives walked out of the 2015 legislative session several days early due to a disagreement with the Senate over Medicare and the State’s overall budget, the Estoppel Bill never made it to the House Floor for final vote meaning that the rumored two million dollars of lobbying efforts expended by the title and real estate lobbies was a huge, colossal waste of money. Candidly, it serves them right for failing to meaningfully cooperate with Florida’s community associations which overwhelmingly opposed the Estoppel Bill, albeit to no avail.

Let us turn our attention to those bills as related to community associations which have survived the 2015 Legislative Session and are on their way to the desk of Governor Rick Scott to become law or vetoed, although a veto is considered by most to be unlikely.

Senate Bill 748 and House Bill 791, an Omnibus Bill: These bills provide various amendments which affect condominium, homeowners’ and cooperative associations. These bills address the following changes:

• Provides that a copy, facsimile or other reliable reproduction of a proxy is valid for the purposes of the proxy. (This makes sense, but strange in that this was already quite obvious.)

• Revises the "catchall" provision of what constitutes the official records for condominium and cooperative associations to include only written records of the association, as already provided for homeowners’ associations.

• Removes the requirement that electronic notice be authorized by the bylaws in order to use e-mail rather than U.S. Mail for official notice purposes.

• Allows associations to implement online voting through a board resolution. (This should prove to be very interesting.)

• Clarifies that partial payments may be applied to outstanding amounts due. (This makes sense, but strange in that this was already quite obvious.)

• Clarifies that the role of the fining committee is to confirm or reject the fine levied by the board.

• Clarifies that if voting rights are suspended, the voting interest allocated to the unit is subtracted from the total number of voting interests. (This makes sense, but strange in that this was already quite obvious.)

• Applies the suspension of voting rights or the right to use common elements to member and tenants and guests, regardless of number of units owned by the member.

• Extends the "Distressed Condominium Act" until July 1, 2018. (This is good for Florida’s economy in that it encourages "white knight" investors to invest in fractured condominium projects by shielding them from liability caused by their predecessor.)

• Titles Chapter 720, Florida Statutes, the "Homeowners’ Association Act."

• Adds a homeowners’ association’s "rules and regulations" to the term "governing documents."

• Clarifies that the failure to timely provide notice of recording an amendment in a homeowners’ association does not affect the validity or enforceability of the amendment.

House Bill 643 and Senate Bill 1172, The Condominium Termination Bill: House Bill 643 and its companion, Senate Bill 1172, address condominium termination and change the voting requirements and procedures for optional termination of a condominium. These bills provide that optional termination cannot be used until five years after the recording of a declaration of condominium, unless there is no objection to the plan of termination. Additionally, a bulk owner who owns at least 80 percent of the units must ensure that each first mortgage is fully satisfied when a condominium is terminated. In addition, all unit owners, other than the bulk buyer, must be compensated for 100 percent of the fair market value of their unit. However, if an original unit owner, who purchased their unit from the developer, together with additional conditions, votes against the termination plan, the bulk owner must promise to pay them no less than the same amount they purchased their unit.

House Bill 71 and Senate Bill 414, The Service Animal Bill: These bills, among other things, provide that a person who knowingly and fraudulently represents himself or herself through conduct or verbal or written notice as requiring the need for a service animal or as being the trainer of a service animal is guilty of a misdemeanor in the second degree, punishable in the same manner as other second degree misdemeanors, and requiring the performance of 30 hours of community service for an organization which serves disabled individuals to be completed within six months. It is important to note that that these bills do not address "assistance animals" governed by the Fair Housing Act. In order to trigger the Americans with Disabilities Act (ADA) in a residential association, the association must have a nexus to the public. For example if a homeowners’ association rents out its clubhouses to the public for weddings, etc., then that association would be subject to ADA requirements as far as its clubhouse is concerned. The overwhelming majority of Florida’s community associations are subject only to the Fair Housing Act, and not the ADA. Sadly, there is no companion bill that would make such fraudulent activity unlawful as applied to fraudulent "assistance animal" requests… yet.

 

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(4-29-15)

Speak Now or Forever Hold Your Peace ~ An Association’s Right to Surplus Foreclosure Proceeds

As today’s real estate market continues to strengthen and the economy continues to grow, lenders are foreclosing against delinquent borrowers with more and more haste. Bargain hunters continue to monitor foreclosure sales, often bidding an amount greater than the amount of the foreclosure deficiency. This result leads to surplus funds. For example, a delinquent borrower defaults on their mortgage owing a remaining $300,000 on their home whose market value is closer to $500,000. The lender forecloses. At the foreclosure sale, the highest bid is $400,000, leaving a $100,000 potential profit for the highest bidder when they ultimately sell the property. As a result of the foreclosure sale, the foreclosing lender first receives its deficiency, in this case $300,000 dollars, and the remaining $100,000 dollars is placed into the Registry of the Court as "surplus funds." If no one claims the surplus funds within 60 days, then the defaulting borrower can claim the overage, meaning that, as applied to this example, the defaulting homeowner could receive a $100,000 windfall.

Pursuant to Chapter 45, Florida Statutes, "[t]here is established a rebuttable legal presumption that the owner of record on the date of the filing of a lis pendens is the person entitled to surplus funds after payment of subordinate lienholders who have timely filed a claim." A lis pendens is recorded in the county’s public records by the foreclosing lender. Once recorded, it means that should anyone else take title to the property, it is subject to the outcome of the present foreclosure litigation.

Also pursuant to Chapter 45, Florida Statutes, "[i]f any person other than the owner of record claims an interest in the proceeds during the 60-day period or if the owner of record files a claim for the surplus but acknowledges that one or more other persons may be entitled to part or all of the surplus, the court shall set an evidentiary hearing to determine entitlement to the surplus."

So, what happens if a junior lienholder, who would otherwise be entitled to the surplus foreclosure proceeds, files their claim for the surplus after the expiration of 60 days? In the recent Fourth District Court of Appeal case, Saulnier v. Bank of America, N.A., decided March 25, 2015, a junior lienholder made their claim past the 60 day period. The trial count found in favor of the junior lienholder based on a theory of excusable neglect, but the appellate court reversed the trial court’s judgment in favor of the homeowners.

The junior lienholder argued, amongst other things, that its untimely claim for the surplus proceeds should be excused because it did not receive a copy of the final judgment or certificate of disbursements and that that the homeowners’ claim did not acknowledge the subordinate lienholder’s claim to the surplus. However, these arguments were found to be without merit by the appellate court. Rather, the statutory 60-day window to claim the surplus funds was strictly construed by the appellate court.

In reversing the trial court’s decision, the appellate court stated, "[w]hile we recognize the subordinate lienholder’s argument before the [trial] court that the homeowners ‘should not be permitted an inequitable windfall simply because [the subordinate lienholder] missed the 60-day deadline by a few weeks,’ we agree with the homeowners that ‘equity follows the law and cannot be used to eliminate its established rules.’" This statement from the appellate court means that when the statutory law clearly addresses an issue, the courts are not free to apply principles of equity to right an otherwise unjust situation. Simply put, the statutory law provides for a 60-day window for a junior lienholder to make a claim for the surplus funds. If the junior lienholder misses that deadline, then it has no right to claim the surplus funds.

As applied to Florida’s community associations, once the association records its assessment lien in the county’s public records, it has perfected its lien rights. This means that the association’s lien relates back to the date of the recording of the association’s declaration! While the association’s lien remains subordinate to the lender’s mortgage, it is ahead of almost every other lien. But, if the association does not timely record its motion for surplus funds within the 60-day window then, it too will miss out on any surplus proceeds and the excuse that the association was not aware of the foreclosure sale and resulting surplus carries no merit whatsoever. So, if you snooze, you lose.

 

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(4-15-15)

Misinterpreting Declaration Leads To Financial Disaster

Don’t Let This Happen in Your Community

Associations are charged with the duty to operate, maintain, repair and replace the common areas of the community. The question that often plagues the minds of members of a board of directors is, who is going to pay for that? The association? The owners? Which owners? An insurance carrier? Whose insurance carrier? Is it even the association’s responsibility to repair or replace? More often than not, the answer depends on a very similar question and which is typically answered in the community’s declaration of covenants – who is responsible to maintain, repair or replace the item in need of maintenance, repair or replacement? The answer may also depend on who created the need for the repair. For example, in the event repairs are needed in the recreation room because a member’s child attempted to do a skateboarding trick and instead put a hole in the wall, the association is likely responsible to conduct the repair, but the owner is likely responsible to reimburse the association for the cost of the repair. The answers to these types of questions rely heavily upon what is contained in your association’s governing documents and will have an important impact on the amount of assessments the owners will have to pay. These types of questions, along with the right answers, would have been very helpful to the parties in the March 6, 2015 Second District Court of Appeals case of Fern v. Eagles’ Reserve Homeowners’ Association, Inc.

In Fern, Ms. Fern, an owner of a newer townhouse, who was sued by her homeowners’ association for failure to pay special assessments for repairs made to the community’s older townhouses, challenged the association’s levy of such special assessments. When the townhouse community was developed, the first townhouses were poorly constructed and required extensive reconstruction. However, the newer townhouses were properly built and required few or no repairs. The association conducted the reconstruction of the older townhouses and minor repairs to the newer townhouses and levied a special assessment against all of the owners for all of the repairs notwithstanding the language of the association’s declaration which provided that the association was responsible for the maintenance, repair and replacement of the "exterior of the Dwelling Unit."

In examining this phrase, it’s important to note a fundamental difference between owning a condominium unit versus owning a home in a homeowners’ association, even if it is a townhome as did Ms. Fern. Typically, in a homeowners’ association, the owner of a townhome, or perhaps all of the owners whose townhomes comprise a singular townhome building, are responsible for the exterior walls. So, even if the association is required to effectuate the repairs, only the owner of the repaired home pays for the repairs to that home. This is further evidenced by section 720.308, Florida Statutes, which allows different levels of assessments assessed against different owners based on the level of services provided by the association.

At trial, Fern asserted that the special assessments were improper expenditures of the association and were therefore unenforceable. Other owners who felt the same had previously sued the association in the case of Klak v. Eagles’ Reserve Homeowners’ Association, Inc., 862 So.2d 947 (Fla. 2nd DCA, 2004). In Klak, the Court held that the association’s obligation to repair the townhouses, and therefore its authority to assess the owners for such repairs, was limited to only the exterior surfaces of the exterior walls of the townhouses. This interpretation was based on language in the association’s declaration which provided that the association was responsible for the maintenance, repair and replacement of the "exterior of the Dwelling Unit" and is much narrower than what the association had hoped or believed. Hoping and wishing could be some very dangerous tools to employ in interpreting a declaration of covenants.

The Court provided that the owners should be assessed for their share of the expenses to repair the building exteriors but that the association would need to seek payment or reimbursement for the remaining expenses from the individually benefited owners and return money to those owners who paid more than their fair share of the repairs.

In the meantime, because of the terrible condition of the older townhouses, the association was ordered by the trial court to continue conducting the repairs. Due to the various lawsuits the association was facing as a result of this special assessment, many years passed, and the association filed for Chapter 11 bankruptcy. The bankruptcy plan permitted the Association to continue its collection efforts but did not address Ms. Fern’s asserted defense of whether the special assessments against her were actually unenforceable. The case against Ms. Fern was ultimately sent back to the trial court because of her asserted defense of whether the special assessments were actually enforceable was required to be determined by the trial court. What happened next? Well, it’s too soon to know. In reviewing the judicial decision, and to add another level of both complexity and absurdity, it does appear that while this case was pending in the appellate court, Ms. Fern actually lost her home as a result of the association’s foreclosure.

This case provides great insight into the importance of properly interpreting the maintenance, repair and replacement provisions set out in the declaration and the assessment authority that goes with it. While the questions may sound simple, the answers often require in depth analysis of your association’s governing documents and the application of Florida case law to reach the right conclusion.

 

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(4-1-15)

Contractor and Engineer Liability: How to Better Protect Your Association

If Your Association is Planning a Maintenance, Repair or Restoration Project, You Better Read This First!

At some point in time, every association is faced with a major maintenance and repair undertaking, whether it be concrete restoration, elevator refurbishment, new roofs or a similar monumental task, which requires the association to place their trust, and a large sum of their money, in the hands of contractors, engineers and architects.

The bid process begins, and all of the prospective contractors, engineers and architects tout their skills and expertise in the hopes that the association selects them for the work at hand. More and more, despite the professional’s desire to win the job, the professional contractor does not want to take on the liability for their own work. This is evidenced by broad waivers of liability, disclaimer of warranties and terribly one-sided indemnity provisions that are set out in the contractor’s contract that is given to the association for review.

As a community association attorney who regularly reviews contracts for community associations, I have seen enough of these broad waivers and disclaimers of liability and one-sided indemnity provisions to last a lifetime. One such example of an attempt to limit liability follows:

In recognition of the relative risks, rewards and benefits of the project to both the Client and the Contractor, the risks have been allocated so that the Client agrees that, to the fullest extent permitted by law, the Contractor’s liability to the Client, for any and all injuries, claims, losses, expenses, damages or claims expenses arising out of this Agreement, from any cause or causes, shall not exceed $20,000.00 or the amount of the Contractor’s fee, whichever is greater. Such causes include, but are not limited to, the Contractor’s negligence, errors, omissions, strict liability or breach of contract.

The association is hiring the contractor, engineer and architect because of their professional expertise, yet the professional is, in essence, saying "I’m great, but I’m not responsible to the association if a make any errors." This is absolutely absurd and an abhorrent practice. Sure there need to be a relative balance so that the professional is not sued by the client association for such matters beyond the control of the professional but to call yourself a professional and run from your own liability is insulting, at best.

Depending on the scope of the association’s maintenance, restoration or repair project, this limit on the contractor’s liability could be egregious. To put this language in a real-world context, let me provide you with an example of the application of this provision to a hypothetical scenario. An association undertakes a concrete restoration project for its entire building which is going to cost the association about $500,000.00. The professional makes a mistake in the waterproofing of the envelope of the building, exposing the building to water intrusion. Months after the project has been completed, residents begin to complain about the smell of the building. Tests are conducted and, sure enough, the condominium is riddled with mold which the association is responsible to repair to the tune of $250,000.00. The association’s insurance carrier is, no doubt, fighting them for coverage, and meanwhile the association is stuck with the bill. So, the association turns to the professional who did the work for answers. Pursuant to the language above, the contractor is only liable to the association for $20,000.00, or the contractor’s fee, whichever is greater. So the association has to come up with difference! Even though the contractor was clearly at fault, the contractor cannot be held liable for its own negligence, errors, omissions, strict liability or breach of contract above the limits as set out in the contract.

Provisions like this could be devastating to an association! While the details of the maintenance project itself, such as the time of the project and the materials used, are important, it is also important for the association to properly protect itself and its members in the event something goes wrong, which happens more often than I prefer. Contractor prepared agreements tend to be a minefield for associations because there are many liability related provisions which must be considered and re-drafted in order to protect the association.

While protecting the association, and its members and residents, is of the utmost importance, it is also important to consider the potential liability of the contractor because, realistically, no deals would be made if the association was fully protected, while the contractor is left completely exposed. There is a balance between protections for the association and protections for the contractor that must be struck in order for associations and contractors to have a mutually beneficial relationship. Finding that balance is easier said than done in many cases, but is entirely possible.

The simplest way to plan for your association’s maintenance, repair and restoration project, and avoid such pitfalls, is for the association to provide the requisite professional with the association’s own draft contract as a part of the bidding process. In that way you can hopefully avoid wasting countless hours in selecting the right professional only to have the deal fall apart because they refuse to stand behind their own work.

Any reputable professional, be it a contractor, engineer, or architect, should stand behind their work. If they won’t, then find one who will!

 

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(3-18-15)

The 2015 Legislative Session

Association Estoppel Certificates

The Devil is in the Details

Florida’s 2015 Legislative Session began on March 3, 2015, and several bills regarding community asso-ciations were filed. An already paired set of such bills, House Bill 611 and its companion, Senate Bill 736, are creating great controversy among Florida’s community associations. Both bills propose significant changes to the laws regarding the issuance of estoppel certificates by community associations. To accomplish this, patently drastic and overtly draconian amendments are proposed to section 718.116, section 719.108 and section 720.30851, Florida Statutes, regarding condominium associations, cooperatives and homeowners associations, respectively.

A brief explanation of the term "estoppel certificate" is in order. An estoppel certificate is a certificate issued by a community association (or its manager or attorney), which provides the monies owed to the association as of a particular date, minimally including due and owing assessments, late fees and interest charges, by a current or prior owner. A prospective purchaser may then rely on the estoppel certificate, until its expiration date. Simply put, an estoppel certificate "estops" the association from asserting a greater amount due than what is provided by its estoppel certificate.

House Bill 611 and Senate Bill 736 propose very strict maximum estoppel certificate fees that may be charged. The legislation mandates that the fee for an estoppel cannot, under ordinary circumstances, exceed $100.00, plus $50.00 for a rush and plus another $50.00 if issued by an agent of the association or its attorney. So, these lowered fees will be made up for elsewhere. Likely it will be in higher management and legal fees passed on to the association which are then paid by each member in pro-rata share. No one other than the buyer and seller should share in these costs.

It is comical, in a tragic fashion, just how much attention is being paid to this issue in this year’s legislative session. Realtors typically earn a whopping 6% commission when the property sells. It doesn’t matter how long the property was on the market, the efforts expended by the realtor, or even the ultimate price of the property. Be it a $100,000.00 or $10,000,000.00 sale, the realtor’s commission is customarily 6%. The closing agents earn their fees, the appraiser charges their fees as does the surveyor, the lender and everyone else associated with the sales process. So, in the infinite wisdom of our Florida Legislature, they have decided to make the "association" the bad guy in this process by focusing on the, more often than not, insignificant estoppel fee.

House Bill 611 and Senate Bill 736 will also shorten the amount of time community associations have to respond to requests for estoppel certificates from 15 days to 10 days. If a community association fails to provide an estoppel certificate within the 10 day period, House Bill 611 and Senate Bill 736 provide that the community association will have effectively waived any claim for any amounts due and owing that should have been shown on the estoppel certificate. Furthermore, there is no mechanism provided in the proposed legislation which provides for an extended timeframe within which to respond should the estoppel certificate request be referred to an attorney or in the event an issue arises during the preparation of an estoppel certificate. At times, due to complications that are understood best by those who issue countless estoppel certificates, 15 days is barely sufficient time to issue an estoppel certificate. Under some circumstances, a 10 day window to do so is laughable. Who suffers as a result of the unissued estoppel? Every single member in your association, but for its newest owner, because it is the existing members who have to make up the financial shortfall.

While the amount due as reflected in the estoppel certificate is the maximum amount a community association is allowed to collect, the legislation also provides that it is the maximum amount due from anyone who relies in good faith on the estoppel certificate including successors and assigns. This provision which provides for a chain of never ending assignability is just plain wrong! An estoppel certificate should only inure to the benefit of the requesting party. If someone else wants one, they too should have to pay for it. Otherwise, it is no different than going to the grocery store demanding a free gallon of milk, because your neighbor bought one yesterday.

Additionally, estoppel certificates, under the new laws if made effective, must be effective for thirty (30) days from the date the estoppel certificate is received by the requesting party, which date must be provided on the estoppel certificate. There is no great justification to require the estoppel certificate remain valid for an entire 30 days. Essentially, the inability of the parties to timely close their deal is being held against the association. At times, budgets are amended and special assessments levied. If either is done after the estoppel certificate is issued, then that person may not have to pay their fair share. The longer period of time the estoppel remains valid, the greater the potential harm to the association.

Given the tens of thousands of association members in Florida who can be financially hurt by this legislation, it amazes me how silent this block of voters often remains. If you want good laws benefiting your association then let your legislators know that the terms of this proposed legislation are unacceptable.

 

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(3-4-15)

If You Think Your Community Has Enforceable Landscape Standards, After Reading This, You Might Think Again!

If ever there was a need to appeal a decision, the Florida Fifth District Court of Appeal’s February 6, 2015 deci-sion in Bendo v. Silver Woods Community Association, Inc., Etc. might be it. After reading the following architectural provision of the Silver Woods Community Association’s Declaration of Covenants, the 5th DCA held that the Association did not have the power to approve or deny an owner’s non-structural landscaping plan, which, in this case was denied because the landscaping plan did not include a grass lawn. At issue was the following section of Silver Woods Declaration:

"Section 1. Approval of ARC. No building, fence, wall or other structure shall be commenced, erected or maintained upon the Property, nor shall any exterior addition to or change or alteration therein be made, unless it is in compliance with the zoning code of Orange County, Florida, and other applicable regulations and until the plans and specifications showing the nature, kind, shape, height, materials, and location of the same shall have been submitted to and approved in writing as to harmony of external design and location in relation to surrounding structures and topography by the Board of Directors of the Association, or by the Architectural Review Committee (ARC)." [Bold in the original; underline added.]

While the trial court held that the Association had the power to approve or deny the "soft" landscaping portions of Bendo’s landscaping plans, the 5th DCA did not. The facts of this case are pretty straightforward. The installation of a new septic drain field in Bendo’s front yard destroyed the existing landscaping. Bendo’s new landscape plans did not include any grass. Rather, he included a new retaining wall, vegetation and mulch. After the Association approved the wall, Bendo submitted additional plans for the "soft" landscaping which failed to include grass. So, the Association rejected the landscape plan and litigation ensued. As reported in the 5th DCA’s decision, "[t]he trial court concluded that the ‘plain’ language of the covenant requires… approval and ordered [Bendo] to submit a new plan for approval in accordance with [the Association’s] directives." Bendo challenged this conclusion, contending that the applicable provision is, at the very least, ambiguous, and the 5th DCA agreed with him.

Admittedly, there is a long line of precedent that stands for the notion that ambiguous covenants must be construed in favor of the land owner. But, is Section 1 (above) ambiguous? While it is pretty clear that Section 1 is not at all ambiguous and that the plain meaning of the sentence should be applied, the 5th DCA did not ask me and rather chose to deeply examine, and quite possibly misinterpret, the sentence structure. WARNING: As a result of reading this article, flashbacks and nightmares of your elementary school English grammar class may result (as happened to me while writing it). But, I digress.

The decision in this case turns on how the reader applies the word "therein," underlined above. The 5th DCA explained that the subject of the sentence is the phrase "building, fence, wall or other structure." Therefore, the 5th DCA reasoned the word "therein" applies to this phrase and not the word "Property" (referring to the owner’s lot). The 5th DCA found that the word "Property" was merely a reference to the land upon which the "building, fence, wall or other structure" could be erected or maintained. Therefore, the 5th DCA reasoned that the Association’s power to approve and deny an owner’s landscaping plans only pertained to the structural aspects of a landscape design and not the non-structural aspects of a landscape design. As I recall from prior grammar lessons, the modifying phrase inserted after a series of subjects applies to the last in the series, not the former subjects.

Simply put, there are five, not four, subjects in the relevant section of the Silver Woods Declaration at issue. The subjects of the sentence are "building, fence, wall or other structure" and the term "Property." The phrase "nor shall any exterior addition to or change or alteration therein be made" at the very least applies to the last subject mentioned, "Property," and likely applies to the entire series because the "building, fence, wall or other structure" are included as a part of the "Property." Having participated in the drafting of countless declarations, to apply the term "therein" to only the "building, fence, wall or other structure" is to fully misinterpret the Association’s otherwise clear ability to approve or deny an owner’s requested landscaping improvements.

Just because a contrary argument was made, it doesn’t mean that the phrase is ambiguous, or does it? School is dismissed.

 

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(2-18-15)

How to Be an Ineffective Board Member

You Know It’s Time to Resign When…

Being a lawyer whose practice concentrates almost exclusively on the representation of community associations throughout the State of Florida, I thought I had seen it all. These days, it is becoming harder and harder to surprise me with stories about association living. But, every now and then, admittedly, I find myself shocked. Sadly, today’s column will describe one such event.

"Condominium living" – the term denotes living on top of one another, literally. It is the great social experiment of the Twentieth Century. Pragmatically, condominium living makes all the sense in the world. Instead of one person enjoying the beautiful ocean view in a single family home, the condominium allows sometimes hundreds of families to enjoy that same ocean view, albeit stacked on top of one another like sardines.

The condominium building is a complex building of various degrees. It can cost tens, if not hundreds of millions of dollars to construct. In many ways it could be compared to a cruise ship complete with HVAC systems, boilers, restaurants, elevators, swimming pools, and in South Florida, the building must weather ocean conditions and storms. Like any ship, the condominium needs a good crew. We call the condominium’s crew, the ever revered board of directors. It is a thankless and time consuming job. Everyone is an expert at what the board members should have done. The association member should be ever grateful to their board members for stepping up to the plate and giving themselves so selflessly.

Unless you yourself have served on the board, then you really can’t imagine the countless hours and aggravation you will sometimes experience. In the utopian association, members serve on the board because they truly care and want to help maintain what is no doubt a fabulous way of living. In the not so utopian association, members want to serve on the board for a whole host of other reasons such as ego, Napoleonic syndrome and power trips. It is to those board members that today’s column is directed.

Board members have a fiduciary duty to their association to exercise their reasonable business judgment. Over the past couple of weeks several regular readers of Rembaum’s Association Roundup have shared an exchange between themselves and their association’s president. The entire association is experiencing a troubling issue with a commercial neighbor. The association members are looking to their board president for information, guidance, support and peace of mind in knowing that their elected "captain" is guiding the ship through the turbulent waters. As you read the verbatim dialogue below between the members and the president, you should know that the association members live out of town most of the year and are a respected doctor and clergyman. Both are well published in their field and have national reputations.

Owner(s) to the President: "I recently sent an email to you and a follow up when I did not hear back. Could you let me know if you received them? I would be happy to meet with you directly regarding the ongoing issue if you prefer."

President to the Owner(s): "If you want an update go to the board meetings like everyone else… or read the minutes of the meeting… That is what they are for… My job is not to respond on an individual basis to unit owners who make up stories of selling their apartment and are too lazy to attend board meetings!"

Having looked at the minutes from the past year and not seeing much about the issue, the owners write back to the president.

Owner(s) to the President: "I am not sure what to make of your recent email to me except to attempt to impune my character and avoid the issue about which we have previously communicated. Perhaps you are not aware that I reside in New York and work full time as, frankly, a nationally recognized physician… As the problem continued unresolved, as you know, we became stressed and frustrated to the point of considering a sale, of which we informed you. We indicated this to you in earnest… If you would take a moment to re-read your email to me and reflect on whether it went, let us say, overboard, I would appreciate your response."

President to the Owner(s): "I REALLY DON’T CARE WHAT YOU DO OR ARE… YOUR ROOMMATE TOLD ME DAY ONE THAT YOU WOULD BE A PAIN AND HARASS ME. GO TO THE MEETINGS AND OR READ THE MINUTES!"

Owner(s) to the President: "Are you confusing me with someone else? I own the unit with my spouse of many years and we have never had a roommate…"

President to the Owners: "I DO NOT TAKE EMAILS FROM RESIDENTS… ALL YOURS WILL BE GOING TO SPAM… FOLLOW PROPER PROCEDURES… IF YOU WOULD HAVE ATTENDED THE MEETINGS YOU WOULD KNOW THIS. FEEL FREE TO READ ANY MINUTES OR COME TO ANY MEETING TO ASK QUESTIONS AND EXPRESS YOUR CONCERNS… I HAVE ALWAYS OPENED UP THE MEETINGS TO QUESTIONS AND STAYED UNTIL ALL WHERE ANSWERED!!!! BELIEVE ME I AM VERY PREPARED!!!!"

Clearly, this president is reacting… to what, we may never know. Why does this president feel the need to yell (evidenced by the all caps in the emails) at these members asking for information? Why won’t he take the time to be responsive to the members’ simple request for a status update? Why does a president not take emails from members? Why is this president so rude and callous? Maybe this president will do the ship a favor and disembark at the port!

 

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(2-4-15)

Do Board Members Owe a Duty of Care and Loyalty to their Association?

A community association is a corporation, in many ways similar to any other corporation, be it a for-profit or not-for-profit company. In exercising decisions, for the most part, the community association’s board members must adhere to the "business judgment rule." As I like to explain it, this means that the board member’s decisions might be right or might be wrong. However, the ultimate question is, "did the board member act reasonably?" In other words, did the board member exercise his or her discretionary decisions in a reasonable manner? It should be obvious that, in making such decisions, the director must owe some type of duty to the association, too.

In a recent case, McCoy v. Durden, decided on December 31, 2014, the Florida’s First District Court of Appeal had occasion to answer this question, albeit in a slightly different context than that of a community association. Nevertheless, in a generic sense, the First DCA examined the duty of care and loyalty owed by a director to his or her corporation that they serve and provided some interesting historical context, too.

The First DCA in McCoy quickly pointed out that Florida courts have long since recognized that corporate officers and directors owe both a duty of loyalty and a duty of care to the corporation that they serve. As early as 1907, in a case styled, Jacksonville Cigar Co. v. Dozier, the Florida Supreme Court recognized that, under the Florida common law, a director is in a fiduciary relationship with the corporation. In 1932, in Orlando Orange Groves Co. v. Hale, the Florida Supreme Court described the relationship between a corporation and its directors and officers. The Florida Supreme Court explained in the Orlando Orange Groves Co. case that "[t]hey are required to act in the utmost good faith, and in accepting the office they impliedly undertake to give to the enterprise the benefit of their best care and judgment, and to exercise the powers conferred solely in the interest of the corporation."

Later, in 1980, in Snead v. U.S. Trucking Corp, the First DCA explained that "[a] director’s… acts are subject to be tested by the rules governing the relation of a trustee to his cestui que trust... He is bound to act with fidelity, the utmost good faith, and with his private and personal interests subordinated to his trust duty whenever the two come in conflict." By way of explanation (and because I had to look it up, too) a "cestui que" is the person for whom a benefit exists, and a "cestui que trust" is a person for whose benefit a trust is created.

Under Florida’s common law, the Florida Supreme Court has defined the concept of fiduciary duties broadly reflecting its historical origin in equity. In other words, even if a legal duty was not codified in the statutory law, a common law duty exists, too. In 1927 in Quinn v. Phipps, a case involving allegations that a real estate broker had violated his fiduciary duty, the Florida Supreme Court explained the basis of the duty: "The term ‘fiduciary or confidential relation,’ is a very broad one. It has been said that it exists, and that relief is granted, in all cases in which influence has been acquired and abused – in which confidence has been reposed and betrayed. The origin of the confidence is immaterial. The rule embraces both technical fiduciary relations and those informal relations which exist wherever one man trusts in and relies upon another … Stripped of all embellishing verbiage, it may be confidently asserted that every instance in which a confidential or fiduciary relation in fact is shown to exist will be interpreted as such. The relation and duties involved need not be legal; they may be moral, social, domestic or personal. If a relation of trust and confidence exists between the parties… that is sufficient as a predicate for relief." (Emphasis added.)

So, does a director of a community association owe his or her association a duty of care and loyalty? You bet they do! Now that we have established that a board member owes a duty of care and loyalty, what exactly are they? It is a fiduciary duty to act in the best interests of the association by acting with loyalty, honesty, and in good faith. Put simply, a director owes a duty to exercise good business judgment and to use ordinary care and prudence in the operation of the association. A director should perform his or her actions in good faith and in the best interest of the association, exercising the care an ordinary person would use under similar circumstances. A director’s decisions are typically protected under the "business judgment rule" unless they breach one of these duties. So, if you are a board member, remember the duty of care and loyalty that you owe to the association you serve.

 

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(1-21-15)

Statute of Limitations in Foreclosure Action:

Timing is Everything

Timing is everything – in love, in life and in lawsuits. Unlike timing in love and in life, timing in lawsuits is governed by certain laws including those referred to as the statute of limitations. Determining when the statute of limitations’ clock begins to tick can be tricky. For example, and as further discussed in today’s article, in Florida, a lender has five years from the date of default to foreclose on its mortgage and note. If the lender fails to file a foreclosure action within five years of the date of default upon which its lawsuit is based, the lender is barred from filing the foreclosure action.

This was the issue before the Third District Court of Appeal in the very recent case of Snow v. Wells Fargo Bank, N.A., decided on January 14, 2015. In this case, on May 25, 2007, the Snows executed a mortgage note with Wells Fargo for property located in Miami, Florida. Pursuant to the terms of the mortgage, Wells Fargo had the option to accelerate the debt in the event of a default.

Prior to accelerating the remainder of the debt upon default, Wells Fargo was required to provide the Snows with notice specifying the default, providing an opportunity for the Snows to cure the default within thirty days of the notice and informing the Snows that the failure to cure the default may result in acceleration of the mortgage debt. Upon the Snows’ default on October 1, 2007, Wells Fargo sent a notice to the Snows on December 6, 2007 which provided the Snows with thirty-five days to cure the default by paying off the amount of the default. However, the Snows failed to cure the default within the thirty-five day period (by January 10, 2008). It’s important to note that Wells Fargo’s notice did not provide notice that the remainder of the note would be accelerated if the default was not cured.

Then, on March 12, 2008, Wells Fargo filed a foreclosure action against the Snows. However, on June 28, 2011, Wells Fargo voluntarily dismissed their lawsuit against the Snows, without prejudice. The term "without prejudice" in a judgment of dismissal ordinarily indicates the absence of a decision on the merits and leaves the parties free to litigate the matter in a subsequent action, as though the dismissed action had never existed.

On March 5, 2013, Wells Fargo filed its second foreclosure action against the Snows. The Snows argued that the second foreclosure action was barred by the five-year statute of limitations because the limitations period began to run on January 10, 2008 (the date by which the Snows were required to cure the default). Therefore, the Snows asserted the statute of limitations expired on January 10, 2013, three months prior to the filing date of the second foreclosure action.

Wells Fargo argued that the date the statute of limitations began to run was not January 10, 2008, but rather March 12, 2008, the date the first foreclosure complaint was filed. Therefore, Wells Fargo asserted the five-year limitations period had not yet expired when Wells Fargo filed the second foreclosure lawsuit on March 5, 2013. The trial court agreed with Wells Fargo and determined that the second foreclosure action was filed prior to the expiration of the statute of limitations.

On appeal, the Third District Court of Appeal affirmed the trial court’s decision and held that the second foreclosure lawsuit was timely filed. In its discussion, the Court noted the difference in the calculation of the statute of limitations with regard to mortgage notes with an automatic acceleration clause and those with an optional acceleration clause.

When an acceleration clause is automatic, the entire indebtedness becomes due immediately upon default, and the five-year statute of limitations begins to run without notice. When an acceleration clause is optional, the lender must exercise this option and give notice to the borrower of the election, making the entire indebtedness due. It is when the lender exercises the acceleration option and notifies the borrower of its exercise that the five-year statute of limitations begins to run.

In this case, the statute of limitations began to run on March 12, 2008, when Wells Fargo filed its first foreclosure action. The Court found that the December 6, 2007 notice of default from Wells Fargo was not Wells Fargo’s exercise of its option to accelerate the mortgage note because the notice did not provide that the full amount of the indebtedness was immediately due nor did it demand payment of the full amount of indebtedness. Wells Fargo did not make such a demand for the full amount due (i.e., the accelerated amount) until it filed its first foreclosure complaint on March 12, 2008. Therefore, the Court determined that the statute of limitations would have expired on March 12, 2013, a week after the second foreclosure action was filed. Timing is everything.

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(1-7-15)

Developer Sells HOA’s Common Areas

In this December 3, 2014 case, Bethany Trace Homeowners Association, Inc. v. Whispering Lakes I LLC and Waterman-Pinnacle, Inc., the association’s subsequent developer, Waterman-Pinnacle, sold lands designated in the Bethany Trace HOA’s declaration as common areas. As a result, when the Bethany Trace HOA found out, it sued Waterman-Pinnacle to get its common areas back.

In 1990, Leigh Corporation started building out the Bethany Trace HOA. As a part of the initial development, Leigh Corporation drafted and recorded Bethany Trace HOA’s declaration. In the declaration, the common areas were identified as "those tracts, easements or areas of land shown on any recorded subdivision plat of the property which are intended to be devoted to the general common use and enjoyment of the Owners in the Property," and included certain designated items such as "fences surrounding the property, a maintenance area, a conservation area, an entranceway along with all of the improvements located thereon." There was one small problem, however. The plat was never recorded. (Does this mean that the common areas were never actually created?)

Eleven years later, Leigh Corporation sold its rights and obligations under the Bethany Trace HOA declaration to Waterman-Pinnacle, the subsequent developer. In the assignment, Waterman-Pinnacle agreed to convey the common areas to Bethany Trace HOA "for no further consideration and free and clear of any liens or encumbrances." Nevertheless, Waterman-Pinnacle sold the lands designated as common areas to another developer which bulldozed them in anticipation of building additional homes. When Bethany Trace HOA learned of this, it sued to get its common areas back.

In summary, Waterman-Pinnacle argued that, because the plat was never recorded, the common areas identified in the declaration weren’t actually common areas and, therefore, the property could be sold. Bethany Trace HOA argued that the lack of a recorded plat did not affect its interest in the identified common areas as the common areas were identified by name and included metes and bounds legal descriptions in the declaration itself. Interestingly, the trial court agreed with Waterman-Pinnacle’s arguments. As a result, Bethany Trace HOA appealed.

When an appellate court reviews a trial court’s interpretation of a contract, the style of its review is referred to as "de novo." This means that, because the interpretation of a contract is a question of law, the appellate court is free to reach a different interpretation than that of the trial court.

The appellate court found that the language of the Bethany Trace HOA, when taken in the entirety, provided that Bethany Trace HOA has ownership rights in its common areas. The appellate court further found that the interpretation adopted by the trial court resulted "in portions of the declaration being meaningless" in that the trial court ignored certain portions of the declaration that provided Bethany Trace HOA would own and maintain certain identified common areas. The appellate court held that Bethany Trace HOA’s interpretation of the provisions of the declaration was reasonable and gave meaning to all of the provisions in its declaration. The case was then remanded (returned) back to the trial court for further proceedings consistent with the ruling of the appellate court.

When the trial court proceedings take place Bethany Trace HOA will no doubt ask the trial court to order that its common areas be formally returned and to award it applicable financial damages.

The moral of this case is simple. At its core, an association’s declaration is a contract between the association and its members. When interpreting a contract, one sentence or phrase, when read in a vacuum, cannot be used in favor of one party when doing so is contrary to the remainder of the contract when read in its entirety.

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(12-24-14)

Contracts, Be Careful What You Sign

Did you read that contract and fully understand your obligations before signing it? Almost every day, we are faced with new terms and conditions for the mobile app we can’t live without. Most people do not take the time to read every word before we hit "I agree" to those new terms and conditions. While the impact of these terms and conditions may not be felt on a daily basis, upon your acceptance, you are bound by these newer terms and conditions as if you read and understood them. While there are certain instances where the terms of a contract cannot be enforced, such as when a contract is unconscionable, when the terms of a contract are clear and unambiguous, the plain language of the contract will be enforced accordingly. This was the subject of a December 5, 2014 opinion of the Fifth District Court of Appeal of Florida in Thyssenkrupp Elevator Corp. v. Hampton Manor at Deerwood, LLC.

In this very recent case, Thyssenkrupp and Hampton Manor had entered into an elevator maintenance contract for a term of five years. Thyssenkrupp provided the services for the entire five-year term. At the end of the five-year term, the contract automatically renewed for an additional five years and continued to automatically renew for additional five year terms thereafter, which is when the trouble began.

During the second five year renewal period, Hampton Manor failed to pay for work performed by Thyssenkrupp in the amount of $1,157.14. The contract provided that upon failure to pay an overdue invoice, Thyssenkrupp could either: 1) suspend all service until all amounts due had been paid in full or 2) declare all sums for the unexpired term of the contract due immediately and terminate the contract. Thyssenkrupp selected option two and filed a lawsuit against Hampton Manor for the unpaid invoices and for all sums due for the unexpired term of the contract.

At summary judgment, Thyssenkrupp provided the elevator maintenance contract, the unpaid invoices and an affidavit of its corporate representative who testified as to all the amounts due and owing to Thyssenkrupp from Hampton Manor totaling $30,259.71, which included the remaining amount due for the unexpired term. Harbor Manor argued that Thyssenkrupp’s corporate representative’s affidavit did not comply with Florida Rules of Civil Procedure 1.510(e), which requires that affidavits must (i) be made on personal knowledge, (ii) set forth facts as would be admissible in evidence and (iii) affirmatively show that the affiant (the person providing the testimony) is competent to testify to the matters provided in the affidavit.

The trial court disagreed with Hampton Manor, finding that Thyssenkrupp’s corporate representative’s affidavit complied with Rule 1.510(e), and ruled in favor of Thyssenkrupp. However, the trial court only awarded Thyssenkrupp $1,157.14, the amount of the outstanding invoices and did not award damages for the unexpired term of the contract in the amount of $29,102.57. Disappointed with the result, Thyssenkrupp appealed the trial court’s award. The Fifth District Court of Appeal of Florida found that the clear and unambiguous language of the elevator maintenance contract entitled Thyssenkrupp to recover the monthly fee for the remaining term of the contract upon Hampton Manor’s default.

When the terms of a contract are clear and unambiguous, a court has no right to give it a meaning other than what is expressed. Quoting a Florida Supreme Court case, the Court provided that "[t]o hold otherwise would be to do violence to the most fundamental principle of contracts."

Because Thyssenkrupp and Hampton Manor had contractually agreed that Thyssenkrupp could cancel the contract and accelerate the remaining term in the event Hampton Manor failed to pay an outstanding invoice, Thyssenkrupp was entitled to damages for the unpaid invoices in the amount of $1,157.14 and damages for Hampton Manor’s breach in the amount of $29,102.57.

The moral of this story is to make sure that, as an association board member, you read and understand every term of a contract before casting your vote in favor of that contract. To do otherwise can cause significant monetary damages.

 

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(12-10-14)

How to Derive Income from Vacant and Abandoned Units

A long, long time ago, in a land far, but not too far, away, England, there were two distinct court systems – the court of law, the Court of the King’s Bench, which followed the letter of the law, and the Court of Chancery, which was a court of equity and had the ability to do what was fair and equal. Although these two courts have had a sordid past, they continue to exist today in our very own court system; however, now the same judge may hear both legal and equitable claims. In general, when the law provides a remedy, the principles of equity cannot be employed by the court.

A core principle in the court of law is inclusio unius est exclusio alterius. It means that the inclusion of one thing is the exclusion of another, meaning that if the law says you can have apples, you can’t have oranges. While this is a general statutory interpretation principal, the Supreme Court of Florida held in the case of Granada Lakes Villas Condominium Association, Inc. v. Metro-Dade Investments Company that the enumerated instances in which a court could appoint a receiver for a condominium association as provided for by Florida Statutes did not limit the court’s power to appoint a receiver but actually expanded upon the court’s inherent equitable powers to do so, which turned out to be pretty good for Florida’s community associations.

In Granada Lakes Villas, the developer, Metro-Dade Investments Company, and the community’s master association, sued the condominium association, Granada Lakes Villas Condominium Association, Inc., for the its failure to pay the developer and the master association their share of the related expenses after collecting the fees and assessments from the condominium’s unit owners. As a result of the condominium association’s failure to pay, it was argued by the developer and the master association that they were unable to pay for utilities and maintenance expenses for the common areas, which resulted in ongoing health nuisances on the property.

At trial, the developer filed an emergency motion for the appointment of a receiver over the condominium association in order to facilitate the collection of the fees and assessments from the unit owners and to perform a proper accounting. Although the trial court had determined that a receivership would be helpful to the court, the trial court held that it had no power under Chapter 718, Florida Statutes, to appoint a receiver because Chapter 718, Florida Statutes, enumerates certain instances when the court may appoint a receiver, including failure of the association to elect enough directors to establish a quorum, failure of the association to act after a natural disaster and the need to liquidate and close a non-profit corporation as found in Chapter 617, Florida Statutes, which governs non-profit corporations. The trial court reasoned that because the statute itemized only these few grounds for appointment of a receiver, the court could not appoint a receiver unless one of these grounds was applicable.

However, on appeal, the Second District Court of Appeals reversed and remanded the case back to the trial court, concluding that the court’s power in these circumstances was "inherent in a court of equity, not a statutorily created right." The Second District also found that the enumerated instances in Chapter 718 and Chapter 617, Florida Statutes, do not "restrict a trial court’s broad, equitable authority to appoint a receiver; rather, the statutes merely cite to specific instances when a receiver may be appointed."

The Supreme Court of Florida, which took jurisdiction because of a conflicting ruling in a 2009 case in the Third District Court of Appeals, agreed with the Second District’s findings. The Supreme Court of Florida provides that the fact that the Florida Statutes lists certain grounds for the appointment of a receiver does not mean that appointment of a receiver is unavailable unless one of those grounds is applicable. The Supreme Court noted that the receivership remedy is available in equity – typically in cases of fraud, self-dealing, waste or destruction or loss of property – even without statutory authority, and that the principles of equity would authorize the court to appoint a receiver under a broader range of circumstances other than those specified by Florida Statutes. The Supreme Court also provided that "nothing in the statutory language of these sections expressly prohibits or even implies that these enumerated circumstances are the only instances in which a court may appoint a receiver in cases involving a non-profit condominium association."

Many associations rely on these cases to seek appointment of a court appointed receiver in an effort to derive rental income over otherwise vacant and abandoned units where, but for the appointment of a receiver, the units would continue to be a drain on the association’s financial resources.

 

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(11-26-14)

Lien Stripping, a Dirty Phrase

In Bank of America, N.A. v. Caulkett, the United States Supreme Court granted certiorari, and thus has agreed, to address whether the Bankruptcy Code permits a Chapter 7 debtor to "strip off," or void, a junior mortgage lien in its entirety when the outstanding debt owed to a senior lienholder exceeds the current value of the collateral, an issue on which the Courts of Appeal are divided.

Imagine: Your association is owed thousands of dollars from a delinquent member who has not paid their mortgage either. The lender, being "on the ball," begins to foreclose its mortgage. At some point, the board authorized an association assessment lien to be recorded against the property, too. Six to nine months later, the lender’s lawsuit is almost over. Then, without warning, the association is placed on notice that the debtor filed a Chapter 7 bankruptcy in Federal court. By operation of law, the lawsuit grinds to a screeching halt much like a racecar slamming into a concrete wall.

No further action can be taken until either the bankruptcy is discharged (the case is over) or the lender receives the express permission from the bankruptcy court to continue foreclosing the property in exchange for an agreement that the lender only seeks to acquire the delinquent member’s property and will not seek monies due and owing on the mortgage. Meanwhile, the association still has its assessment lien recorded against the property, meaning that there is still a chance the association can receive the monies it is still owed, especially if a third party purchaser acquires the property. Right? Well, not if during the bankruptcy the debtor "strips" the association’s assessment lien; a process referred to as "lien stripping."

Lien stripping occurs when the court grants a request to wipe out all liens that are inferior to a superior lien. In the association’s case, it means that if the bankruptcy court were to allow lien stripping, the association would have no chance whatsoever of recovery of back assessments due and owing which, without going out on a limb, is extremely unfair to the association. Not all bankruptcy courts permit lien stripping. Some do, and some don’t. In such cases, where Federal Circuit Courts acting in their capacity as appellate courts disagree with one another, the United States Supreme Court has the right to examine the differing lower appellate court decisions; a process referred to "certiorari."

Previously, the Supreme Court held that Section 506(d) of the Bankruptcy Code, which provides that a lien is not valid to the extent that it secures a claim against the debtor that is not an "allowed secured claim," does not allow a Chapter 7 debtor to "strip down" a mortgage lien to the current value of the collateral. This will become VERY important for reasons explained below.

On the other hand, the Eleventh Circuit (with jurisdiction over the Middle District of Alabama, Northern District of Alabama, Southern District of Alabama, Middle District of Florida, Northern District of Florida, Southern District of Florida, Middle District of Georgia, Northern District of Georgia and Southern District of Georgia) held that a Chapter 7 debtor may "strip off" a valid junior lien on the debtor’s house when the debt owed to a senior lienholder exceeds the house’s current value, relying on controlling precedent that the Eleventh Circuit believed distinguishes its decisions from the Supreme Court’s rationale. Similarly, in other cases, the bankruptcy court, in unpublished decisions, entered orders voiding wholly unsecured second priority liens on residential property owned by the Chapter 7 debtors which, in unpublished orders, the district court has affirmed.

In its petitions for certiorari to the Supreme Court, a junior lienholder argued that the Eleventh Circuit’s position is irreconcilable with the Supreme Court’s decision that the Bankruptcy Code does not allow a Chapter 7 debtor to "strip down" a mortgage lien. The petition asserted that, because the junior lienholder had valid claims for the money loaned to the debtors, the Bankruptcy Code provided no basis for the debtors to "strip off" the subject liens. Furthermore, the petition continued, the fact that a mortgage is underwater matters only to the treatment of the creditor’s claim as "secured" or "unsecured" and has no effect on the treatment of the creditor’s lien under Section 506(d) of the Bankruptcy Code.

Hopefully, the United States Supreme Court will explain that lien stripping is not permitted, keeping association liens alive after bankruptcy proceedings and thereby providing the association a better chance of collecting past due assessments!

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(11-12-14)

When Expenditures Requiring Owner Approval, Don’t

Not too long ago, Briny Beezes, Inc., a cooperative association (the "Association") sought a declaratory statement from the Division of Florida Condominiums, Timeshares, and Mobile Homes (the "Division") as to whether the Association’s Board of Directors (the "Board") could use its more than adequate reserve funds to repair a seawall to prevent flooding where the Association’s Bylaws required a majority of the membership vote to approve any expenditure greater than $30,000.00. At the heart of the Association’s request was its engineer’s opinion that the expenditure was necessary for maintenance to the seawall to prevent further flooding. The orders of the Division do not have precedential value similar to district court of appeal cases, but rather its orders are specific to the parties involved in the arbitration petition. While the petitioner in this case is a cooperative, the Division’s resulting May 31, 2013 Order remains both useful and instructive to condominiums, and due to the Order’s logic and common sense approach, perhaps also to homeowners’ associations.

The arbitrator noted that the Florida Statutes regarding cooperative associations and condominium associations provide that the Association has the power to make and collect assessments and to maintain, repair and replace the common areas. (The author notes that so do homeowners associations.) The arbitrator looked to a bankruptcy case, In re Colony Beach and Tennis Club Association, Inc., where the court held that that, "in fulfilling the duty to maintain the common elements, the board may assess members for common expenses without a vote of the unit members." It was noted that the Board’s statutory duty and authority to maintain the common elements trumps any provisions in the Association’s governing documents requiring member approval for expenditures that are necessary for maintenance. Then the arbitrator looked to state court cases.

In Tiffany Plaza Condominium Association v. Spencer, a 1982 Second District Court of Appeals case, the Court held that, "the board had the authority to authorize the construction of a rock revetment necessary to protect the common elements without the consent of unit owners." In Ralph v. Envoy Point Condominium Association, Inc., another Second District Court of Appeals case, the Court stated, "[s]imply because necessary work for maintenance may also constitute alterations or improvements does not nullify a condominium board’s authority and duty to maintain a condominium common elements." The arbitrator also noted that, as recognized in Ralph, "even if expenditures result in alterations or improvements to the common elements, it is within the board’s authority to authorize those expenditures without member approval when they are necessary to protect the common elements." Finally, the arbitrator referred to guidance from A. N. Inc. v. Seaplace Association, Inc., a 1998 Division Arbitration Order that held, "expenditures which are reasonably necessary for maintenance do not require a vote of the members."

The arbitrator wisely pointed out that "if the contemplated upgrades to the seawall constitute a material alteration to the common elements that go beyond the necessary repair to protect the common elements, the board’s decision is open to challenge an arbitration or court where the question of fact as to the extent of the changes may be determined."

PRACTICE TIP: Prior to relying on these cases, if your association requires membership approval before spending thousands on necessary repairs, the board should at least explain the situation to the members at a properly noticed membership meeting and try to obtain the membership vote in favor of the repairs. If the membership does not approve the expenditure, then the board should consult with the association’s attorney to plan the proper course of action. Under no circumstances should the board decide, on its own, to circumvent the requirements of the association’s governing documents.

 

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(10-29-14)

The Association’s Right to Access Your Unit: What You Need to Know

Did you know that, according to section 718.111(5)(a), Florida Statutes, your condominium association has "the irrevocable right of access to each unit during reasonable hours, when necessary for the maintenance, repair, or replacement of any common elements or of any portion of a unit to be maintained by the association pursuant to the declaration or as necessary to prevent damage to the common elements or to a unit?"

In Small v. Devon Condominium B Association, Inc. (a 4th DCA case), Small, suffering from a breathing disorder, discontinued her condominium association’s optional pest control services in 2005. In 2009, the association demanded to access the unit to perform pest control services. Small refused. The association filed a petition for condominium arbitration seeking access to her unit. A default judgment was entered in favor of the association which provided it with monthly access to her unit to perform pest control services. However, a condominium arbitration order is not final and binding until 30 days have passed from the date of the arbitrator’s order.

During this 30 day period, the losing party can appeal to the circuit court for a trial "de novo", (which essentially means holding a new trial) and that is exactly what Small did. In response, the condominium association counterclaimed against her for injunctive relief, breach of contract and for a request to uphold the arbitrator’s award.

During the proceedings, the association argued that it had the irrevocable right to enter all units for necessary maintenance. In response, Small presented testimony from her physician who provided that "it would be deleterious to her health to be exposed to any chemicals." Small also questioned whether the association’s demands were "reasonable and necessary". Small’s arguments failed. The trial court’s order provided that, amongst other things, the association would have access to the unit on the third Monday of every month to perform pest control services.

Small appealed the trial court’s decision. In response, the association moved for contempt when she prevented the association from performing pest control services until she could have someone inspect the spray to be used. She continued to refuse access to her unit because her expert found that the spray was harmful to her breathing condition and that there was no evidence of insects. The Court then found Small in contempt of court. Thereafter, when Small was still not compliant, the association sought an enforcement order against her, which was decided in the association’s favor. By this time there was both an order of contempt and enforcement against Small.

Small appealed the enforcement order, but not the court’s contempt order issued against her. She argued that an issue of material fact existed as to whether the association’s demands were reasonable and necessary. The association argued that its actions were necessary and reasonable to prevent a pest infestation that may spread to the condominium’s common elements. The Court explained that for access to a unit, the association’s actions must be (1) within the association’s authority and (2) reasonable. Further, a mere "claim" of necessity is not sufficient.

The Court reversed the trial court’s enforcement order. However, the Court affirmed the contempt order because Small failed to appeal it, thereby waiving any challenge on the merits of the contempt order. Furthermore, the Court explained that "a contempt order may stand even if it is based on an erroneously entered order."

As to Small, it would have been interesting to see if her situation would have turned out differently had she made a request for a reasonable accommodation to her association’s pest control policy under the Federal Fair Housing Act.

For those readers who are members of a homeowners’ association, you can breathe a sigh of relief (pun intended). Unlike condominium associations, homeowners’ associations do not have a statutory right to access an owner’s lot. However, a homeowners’ association’s declaration of covenants may grant the association a right to access an owner’s lot, but not the home, in emergency circumstances or for purposes of undertaking an owner’s maintenance obligations on the lot in the event the owner fails to properly maintain his or her lot.

 

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(10-15-14)

Condominium Termination

Absolute Power Corrupts Absolutely!

Whether the revamping of the condominium termination procedures began in 2003 due to known problems in Florida’s termination procedures or whether the revamping occurred in 2007 as a result of several prior horrific storm seasons which led to distressed, fractured and unsustainable condominium projects throughout the State of Florida, the obvious fact is that, in 2007, the Florida legislature completely revamped the condominium termination process in an effort to simplify the termination process. But, is the cure even worse than the disease?

Prior to July 1, 2007, to terminate the condominium, a condominium association needed to obtain the approval of 100% of both the condominium unit owners and mortgage lienholders, unless otherwise provided in the declaration of condominium. In the off chance that such a vote was obtained, the condominium property became owned by the unit owners as "tenants in common" which would then require the filing of an "equitable partition" lawsuit – a lengthy process – so the condominium property could be sold and the proceeds distributed. At risk of pointing out the obvious, one sole disgruntled owner could prevent a justifiable and necessary termination necessitated by extreme damage to the condominium incurred as a result of casualty.

After the 2007 amendment, the new condominium termination procedures provide that the affirmative vote of only 80% of the unit owners, unless otherwise provided in the declaration of condominium, is needed to approve, what Chapter 718, Florida Statutes calls, a "plan of termination", so long as not more than 10% of the unit owners vote to object the "plan of termination". In this new termination regime, mortgage lienholders consent is not needed and thus irrelevant. According to attorney Martin A. Schwartz, "there is a lack of clarity in the statute on whether a mortgagee has to receive the full amount of its mortgage or only the value of the underwater unit. Lenders have generally accepted less than their principal amount since they are receiving the full current value of their collateral." This could lead to continued liability for the borrower to satisfy the shortfall.

While these relaxed procedural hurdles to condominium termination have helped numerous real estate projects get back on their feet in one manner or another, a disturbing trend has arisen in which developers are using these termination provisions as a means of taking over condominiums and forcing unit owners out of their homes to turn these fledgling condominiums into rental properties, or to perhaps build newer, more dense condominium projects. After the condominium bubble burst and the condominium recession in Florida grew, investors, like sharks sensing blood in the water, sensed opportunities to purchase condominium units at incredibly low prices, sometimes purchasing the majority or all of the units in a condominium project, otherwise known as a "bulk purchase". Having purchased a majority, if not all, of the units in a condominium, the developer, or "bulk buyer", then had control over the condominium association. An owner of more than 50% of the units can legitimately control the board of directors and thus control the condominium association, too.

With control of the condominium association, the bulk buyer could commence the termination of the condominium. In this new termination process, governed by section 718.117, Florida Statutes, a termination trustee – typically, the condominium association itself – records a "plan of termination" which meets the requirements of Chapter 718, Florida Statutes. Once the "plan of termination" is recorded, title to all of the units automatically transfers to the termination trustee, and all liens automatically transfer to the sale proceeds. The "plan of termination" typically grants the termination trustee the power to sell the condominium property, including all of the units, at fair market value as determined by an independent appraisal, which amount can be below the amount borrowed by the owner.

The proceeds of the sale then get distributed in the following manner: (1) to the termination trustee for its reasonable fees and costs; (2) to any lienholders of liens recorded prior to the declaration of condominium; (3) to any purchase money lienholders, (aka, lenders- but the amount of their share could be less than the amount borrowed by individual owners); (4) to any lienholders of liens entered into by the condominium association which have been consented to by the unanimous consent of unit owners; (5) to any creditors of the condominium association; and finally (6) to the unit owners as set out in the "plan of termination".

This trend of condominium take over and termination which, in today’s market, is likely the conversion of condominiums into rental properties, has the practical and real world possibility of forcing unit owners to sell their homes at depressed prices, likely for less than what is owed to their lenders, leaving them without a home, with the remaining debt on their mortgage liens, and with no money for a down payment on a new home. Can you think of worse situation?

This is a very unfortunate turn of events to what was created as a panacea to save otherwise defunct properties. In fixing the problem, the Legislature could at least ensure that no condominium owner will be left owing money to their lender as a result of their condominium’s termination when the termination is the result of a bulk buyer acquiring control as compared against a termination necessitated by a casualty event.

Although amendments to the condominium termination provisions of section 718.117, Florida Statutes, failed during the 2014 Florida Legislative Session, change must be made to avoid, or at the very least, curb, the incidences of abuse of its procedures. Will Floridians be harmed before the Legislature acts?

 

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(10-1-14)

Leasing Your Home?

Don’t Blame Me If You Don’t Read This

If your association has ever considered filing an eviction lawsuit against a unit owner’s tenant, then you need to know about a recent Third District Court of Appeal case, Shteyn vs. Grandview Palace Condominium Association, decided September 24, 2014. This case is so fresh that the ink isn’t dry yet. In fact, the decision is not final until the 30 day period in which either party may decide to appeal further has lapsed. It is unlikely, but remotely possible. So, let’s take a deeper look.

In Shteyn, the association sought i) to "evict" the tenants, ii) to "eject" the tenants and iii) an injunction (meaning, to force through court order) to prohibit the tenants from violating the association’s rules and regulations. An "ejectment" action is a lawsuit brought by the property owner to remove a party who is unlawfully occupying the property. It differs from an "eviction" in that an eviction requires a landlord-tenant relationship whereas an ejectment does not. For example, if the occupant claims they are not paying rent, then an eviction action may not be the right cause of action. By including both claims for eviction and ejectment, the plaintiff-association covered all of its bases.

After the association filed its lawsuit, the tenants moved out. As a result, the claims for eviction and ejectment were rendered moot. The tenants also argued that the association’s cause of action for injunctive relief should be rendered moot, too. Typically, in order for an association to maintain standing against an owner or tenant, that individual must still maintain their relationship as a resident within the association. Because the tenants moved out, that relationship no longer existed, and thus, the tenants argued they were no longer subject to the court’s jurisdiction in so far as the association’s claim for injunctive relief was concerned. The Court disagreed.

The Court looked to section 718.303 (1)(b)(e), Florida Statutes (2013), which provides, in part, that "[a]ctions for… injunctive relief… may be brought by the association against… [a] unit owner… [a]ny tenant leasing the unit, and any other invitee occupying a unit." However, the prior tenants admitted that at the time the lawsuit was brought, they were occupying the unit. Therefore, the Court found that the circuit court had subject matter jurisdiction at the time the association filed its lawsuit and that the fact that the tenants moved out after the lawsuit was filed in no way divested the circuit court of its jurisdiction. The Court, quoting another case, provided that "a defendant cannot automatically moot a case simply by ending its unlawful conduct once sued." In addition to seeking an injunction to enjoin the tenants from violating the association’s rules and regulations, the association also sought an injunction to permanently enjoin the tenants from ever again residing at the condominium. Therefore, the Court determined that the circuit court continued to have subject matter jurisdiction to decide the association’s claim for injunctive relief.

Remember too that ultimately, when an association prevails in a lawsuit against an owner’s tenant, so long as the unit owner was included as a party defendant in the litigation, the unit owner-landlord will ultimately be responsible for the association’s prevailing party attorney’s fees incurred in the lawsuit against the owner’s tenant. With that in mind, a well-educated owner will always intercede and resolve their association’s concerns with the owner’s tenant because it is far less expensive to handle the matter then than it is to be sued as a co-defendant along with the tenant and be responsible for all of the association’s fees and costs. It is like going out to dinner, not eating and then being fully responsible to pay for everybody else’s meal! It is a no-win situation.

 

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(9-17-14)

Emotional Support Animals

Don’t Let Your Association Step In It!

Remember those funny Seinfeld episodes when Jerry’s father, Mort, served on the board of directors of that fictitious and loony community, Del Boca Vista, that was supposedly in Boca Raton, Florida? Well, apparently, in Miami there is condominium named Del Vista Towers. While there is no relation between the two, we will soon know if Del Vista Towers earns the reputation of that fictional association with a similar name. Reporter Samantha Joseph, in the August 1, 2014 edition of the Daily Business Review, reported that Miami’s Del Vista Towers is being sued by one of its unit owners for failing to permit an owner, who suffers from post-traumatic stress disorder ("PTSD") and severe depression, to have his assistance animal in accordance with the Fair Housing Act ("FHA") - a pit bull.

During a motion for summary judgment hearing, Del Vista Towers argued that a Miami-Dade ordinance prohibits pit bulls; therefore, the condominium association did not have to grant the owner’s request. According to reporter Joseph, and to the contrary of the association’s arguments, Judge Jose Martinez agreed with the owner’s position that the U.S. Department of Housing and Urban Development allows reasonable accommodation without regard to breed, that emotional support animals do not require any training and that if the county ordinance were enforced, it would violate the FHA by permitting a discriminatory housing practice in that by denying the owner’s request to keep his pit bull, he is not afforded an equal opportunity to use and enjoy his dwelling. The Judge’s rulings appear consistent with prior FHA decisions. While there is no such thing as a sure thing in any court case, it will be quite a surprise if the owner does not ultimately prevail in this one.

In considering the delicate nature of requests for emotional support animals there is a minefield of mistakes that community associations can trip over. Some of these mistakes were recently made by Bhogaita v. Altamonte Heights Condominium Association, Inc., Case No. 13-12625; 13-13914 (11th Cir., August 27, 2014) in which a judgment against the association, in favor of the unit owner, was upheld by the U.S. Court of Appeals for the Eleventh Circuit. In this case, the unit owner, who suffers from PTSD that developed as a result of a sexual assault which occurred during the unit owner’s military service, purchased a dog, "Kane," whose weight exceeded the association’s 25-pound pet weight restriction. Two years after acquiring the dog, the association demanded the dog’s removal due to the weight violation. In response, the unit owner provided two letters from his treating psychiatrist which provided that, due to mental illness, the unit owner had limitations regarding social interaction and coping with stress and anxiety and that an emotional support animal would help the unit owner cope with the disability.

In response to the doctor’s letters, the association made its first mistake, some might say, the association really stepped in it (pun intended) by requesting detailed information regarding the unit owner’s disability and the dog’s training – the association requested additional information when the minimum threshold to establish entitlement to an emotional support animal had already been reached by the unit owner. The Court found that such threshold had been met by the letters from the unit owner’s psychiatrist because they (i) described the nature and cause of the unit owner’s PTSD diagnosis, (ii) provided that the unit owner was substantially impaired in the major life activity of working and (iii) explained that the dog alleviated the unit owner’s disability related symptoms. Additionally, although not discussed by the Court, it is worthy to note that the FHA, unlike the Americans with Disabilities Act, does NOT require specific training for emotional support animals or service-type animals.

Nevertheless, despite having met the minimum threshold, the unit owner responded to the association’s request for additional information by providing a third letter from the psychiatrist and a personal response answering each of the association’s questions in turn. In this response, the psychiatrist and the unit owner described the unit owner’s PTSD and how it affects major life activities. In addition, the unit owner mentioned a physical disability related to multiple knee surgeries and knee injuries suffered during his military service.

After obtaining this response and learning of the newly claimed physical disability, the association made its second and third mistakes (twice and in addition to committing the first mistake again!) by requesting very detailed information regarding the unit owner’s disabilities and demanding that if the unit owner failed to respond by a certain deadline, he had to remove the dog!

The Court provided that, although the association is empowered to conduct a "meaningful review" of the unit owner’s request for a reasonable accommodation, "[t]he failure to make a timely determination after meaningful review amounts to constructive denial of a requested accommodation." The Court also provided that a "meaningful review" is for the association to gather "information necessary to apprise [the board of directors] of the disability and the desired need for an accommodation" and that requesting information outside what is minimally required by the FHA is beyond the scope of a "meaningful review."

Remember that any information sought must be relevant to the request and must be within the scope of a "meaningful review" and that, once the association has the information to satisfy the minimum requirements of the FHA, the association should approve the requested accommodation within a timely manner. It is important to note that an evaluation of a request for a reasonable accommodation under the FHA is a highly fact-specific analysis and must be reviewed on a case-by-case basis. Community associations should seek the assistance of their legal counsel when in receipt of such a request.

 

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(9-3-14)

Get that Sign Out of Here!

Your neighbor’s front yard sign supporting their favorite political candidate may be upsetting. But that alone is not a reason to spray paint over it, yell obscenities every time you see your neighbor leaving to go to work or for the association’s board or directors to demand the sign’s removal.

This begs the question, "Can a homeowners’ association or condominium association prohibit the display of political yard signs?" In short, "yes, it likely can." The reason the word "likely" is used is due to the fact that, as yet, there are no Florida cases that directly answer this inquiry. However, given other existing cases, a well-crafted and properly adopted rule prohibiting such signs is likely lawful and enforceable.

In examining an association’s "no sign" rule, let us first address the argument heard during every presidential, state and local election seasons, "This is America! The First Amendment protects the right of all homeowners to display political signs on their property." RIGHT? WRONG! The right to freedom of speech as provided by the First Amendment is not an absolute right and, moreover, the First Amendment concepts of freedom of speech and freedom of expression apply only to governmental settings. As such, the First Amendment acts as both a shield and a sword to prevent the government from stifling your free speech rights.

A community association is not an extension of our government. Though homeowners’ associations and condominium associations do provide a system of governance, they are not governmental entities and have no nexus to local or federal government. In 1987, the Florida Supreme Court held, in Quail Creek POA v. Hunter, that neither a homeowners’ association’s recordation of its covenants in the public records, nor the enforcement of its covenants in state court, created a sufficient nexus to evidence "state action" such that the First and Fourteenth Amendment would apply. Thus, any homeowner would be hard-pressed to argue otherwise. Admittedly, there are occasions when the Florida Supreme Court applies other rights set out in our Federal Constitution, but not in this instance.

Courts have long since held that owners give up certain liberties when living within a community association. In 2002, the Florida Supreme Court held, in Woodside Village v. Jahren, that certain individual rights must be compromised when you choose to live in a condominium. With this in mind, any sign prohibition should be artfully drafted to help ensure enforceability and must be equally enforced. There is no margin for error. The dispositive court cases regarding rule enforceability make clear that a sign restriction must be "clear and unambiguous" to be enforceable against each owner. Remember, a declaration of covenants is a contract between an association and an owner. A basic principal of contract interpretation is that ambiguous terms are held against the drafting party. This means that in the event the rule is even slightly confusing, then the homeowner will likely receive the benefit of the doubt. Also, any covenant or rule must be applied fairly to avoid selective enforcement rebuttals.

That rules prohibiting signs must be artfully drafted was a point made very clear to the homeowners’ association in Shields v. Andros Isle Property Owners Association, Inc. in which the Fourth District Court of Appeal of Florida decided in favor of the homeowner who displayed a sign in her car window despite the association’s sign prohibition. The association’s rules prohibited the display of signs "on any lot", except a "for sale" sign of a certain size, and prohibited signs on a vehicle. The Court, using the definition of a "lot" in the association’s declaration, interpreted these rules to mean that no sign, except a "for sale" sign, may be on the land or on the exterior of a vehicle. However, there was no prohibition for signs displayed from within a vehicle.

In consideration of the above, a homeowners’ association could, more likely than not, enforce its "no sign" policy which includes prohibiting political signs. Also, as a general rule, courts favor covenants adopted by the membership over rules adopted by the board of directors; meaning, a "no sign" rule approved by the membership serves to increase the association’s chances of prevailing should the rule be challenged.

Upon legal challenge, a court might also be more inclined to uphold a "no sign" rule that does not include an absolute prohibition, but rather, that regulates the length of time the sign can be displayed, its size, where it can displayed and when it must be removed. Before demanding that an owner remove their political sign, the board should review its community association’s sign rules. If the rule at issue is not patently clear, then it is likely time to consider amendment before enforcement. Consider also, election season is short. By the time a lawsuit for an injunction to enforce the "no sign" rule is fully resolved, it might be time to consider the next electoral candidate!

 

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(8-20-14)

PAID IN FULL

Watch Out For These Dangerous and Very Costly Words

What does your association do when an owner sends the association their assessment payment for less than full amount due? Say the owner owes $1,000.00, and only sends in $100.00 and on their check writes "paid in full." Do you deposit the check and bill the owner for the difference? If you answered yes, then you are likely in the majority. But, given Florida’s Second District Court of Appeal, August 8, 2014, opinion in St. Croix Lane Trust (the "St. Croix Trust") & M.L. Shapiro, Trustee (the "St. Croix Trustee") v. St. Croix at Pelican Marsh Condominium Association, Inc. (the "Association"), you might seriously reconsider depositing that check in favor of sending it back to the owner and demanding full payment, instead. The answer will depend on whether the owner disputed the amount due.

In this case, the St. Croix Trust acquired its unit as a result of a foreclosure. Upon talking title, the Association demanded $38,586.11 as the assessments that remained due and owing. The St. Croix Trustee disputed the assessment amount and argued to the Association that it only owed $840.00. The St. Croix Trustee then sent its check in the amount of $840.00 to the Association and in so doing, wrote a restrictive endorsement on their check, "paid in full." While the Association continued to seek the difference from the St. Croix Trustee, the attorney handling this collection matter for the Association deposited the $840.00 check. The Court held that the St. Croix Trust did not owe the balance due because the restrictive endorsement written on its check combined with the Association’s lawyer’s act of depositing the check was a de facto acceptance of the St. Croix Trust’s $840.00, a process in legal terms referred to as an "accord and satisfaction."

An "accord and satisfaction" is discussed in section 673.111, Florida Statutes, more commonly known as the "Condominium Act." This section provides, in relevant part, that:

"(1) If a person against whom a claim is asserted proves that that person in good faith tendered an instrument to the claimant as full satisfaction of the claim, that the amount of the claim was unliquidated or subject to a bona fide dispute, and that the claimant obtained payment of the instrument, the following subsections apply.

(2)…[T]he claim is discharged if the person against whom the claim is asserted proves that the instrument or an accompanying written communication contained a conspicuous statement to the effect that the instrument was tendered as full satisfaction of the claim."

While there are a few exceptions to subsection (2), above, the Court found that none of them applied to this situation. The Court also held that none of the stated exceptions to the application of subsection (2) applied and thus, "[i]f the Association did not wish to accept the $840 check in full settlement of its claims in accordance with the [St. Croix] Trust’s tender, then it should have returned the check instead of negotiating [depositing] it."

Being an astute reader of this column, you are already aware that that section 718.116(3) of the Condominium Act (as well as a similar provision set out in the Chapter 720, also known as the "Homeowners’ Association Act") provides, in relevant part, that:

"…. Any payment received by an association must be applied first to any interest accrued by the association, then to any administrative late fee, then to any costs and reasonable attorney’s fees incurred in collection, and then to the delinquent assessment. The foregoing is applicable notwithstanding any restrictive endorsement, designation, or instruction placed on or accompanying a payment." [emphasis added]

The Court looked to the legislative history and staff analysis of the legislation and found that it meant that, even if a check contained a restrictive endorsement which provided some other formula for the application of a payment, that nevertheless the monies were to be applied first to the accumulated interest, followed by late fees, attorney’s fees and costs and then to the delinquent assessment. In the Court’s opinion, the staff analyses confirmed that the pertinent language was added to invalidate restrictive endorsements that provide a formula for the application of payments other than as set forth in the statute. The Court found "nothing in the staff analyses suggesting that the amendment was intended to make section 673.3111 [the accord and satisfaction statute, above] inapplicable to condominium associations or that the amendment would otherwise alter Florida law concerning accord and satisfaction solely for the benefit of condominium associations."

The key to understanding this outcome is that the St. Croix Trustee, an association member, had first disputed the assessment amount due, and then sent in the St. Croix Trust’s $840.00 check that contained the restrictive endorsement, "paid in full" which was deposited by the Association (or in this case, its attorney). With this in mind:

1) If the debt is disputed and less than the full amount due is provided with the written endorsement "paid in full," do not deposit the check. Instead, send it back to the debtor and demand that the full amount past due be remitted.

2) If there is no dispute and less then the full amount due is sent in by the debtor and the check provided by the debtor contains written endorsement "paid in full," then if the association deposits the check, it can argue that there was no "accord and satisfaction." However, it may not be worth the risk, which leaves us with the safest alternative set out in No. 3 below.

3) Any time the association receives a check containing the written endorsement "paid in full," then, unless the check actually represents the full amount due, do not deposit it but rather send it back and demand the debtor resubmit their check, this time in full.

With this newest wrinkle to association assessment collections, the Florida legislature should come to the aid of associations and clarify that if a debtor writes "paid in full" on their check, it is fully and unequivocally meaningless.

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(8-6-14)

2014 Florida Legislature: Less is Not Always Best

Significant Changes to the Commercial Condominium Regime

Recently, several new laws went into effect that only affect commercial condominiums. While only a few of these changes make sense, most do not and illustrate the significant misunderstanding of the need to protect all condominium unit owners without regard to whether the condominium is residential or commercial.

Remember, before you get too excited, this article only addresses changes to COMMERCIAL, and NOT residential condominium associations.

Why our Florida legislators have determined that unit owners of commercial condominiums are not entitled to the same protections as owners of residential condominiums shall forever remain a mystery. If you own a unit in a commercial condominium, you need to be aware of these important changes. There is no longer any protection for an owner of a minority of units in a commercial condominium, WHATSOEVER! In other words, there is no equality – whoever owns the most units or the most square footage is "King of the Condo", FOREVER AND EVER AND EVER AND EVER AND EVER!!!

The changes affecting only commercial condominium associations include:

• Board members can serve for unlimited terms.

• If there is more than one owner of the commercial condominium unit then all of the owners can serve on the board at the same time thereby completely obliterating fair representation on the board.

• Board members do not have to sign a "loyalty oath" that they have read the condominium documents and will discharge their fiduciary duties in a responsible manner. In effect, this means the controlling owners/board members can do what is best for them, personally, and not what is best for the condominium association.

• The election requirements for running and voting for the board as set out in Chapter 718, Florida Statutes (the "Condominium Act"), are no longer applicable to commercial condominiums.

• Voting by "general proxy" is permitted for all matters, even elections of the board. A "general proxy" allows the proxy holder to vote however he or she sees fit on ANY matter that may be undertaken, while a "limited proxy" lists the issues that a proxy holder may cast a vote for on behalf of a voting interest and instructs the proxy holder on how to vote on those issues. Until this new law went into effect, even owners of commercial condominiums had to vote by limited proxy. Now that this requirement has been removed for commercial condominiums, once a commercial unit owner appoints their proxy, that person can cast the vote of their choosing on any and every matter under consideration. If you add the right of the general proxy holder to the new board member rights, you can begin to understand the dangers. Most unit owners end up appointing a board member to act as their proxy. Given the board will now be fully controlled by the owners who own the largest or the most units, commercial condominium unit owners who do not understand these new UBER-dangers, will soon find themselves completely and utterly powerless to stop the board from doing what is best for their own individual interests.

• The hurricane shutter, impact glass and other hurricane protection provisions set out in the Condominium Act no longer apply to commercial condominiums. Does the legislature really believe that commercial condominiums are immune from dangers of hurricanes? Oh brother!

• The build-out of what is referred to as a "phased condominium project" occurs in phases, just as the title suggests. Until now, once the phase plan is established, early purchasers are protected from drastic development changes that could negatively affect their property value and assessment liability. As to commercial condominiums, these protections are now completely obliterated. The unsuspecting commercial condominium purchaser will, no doubt, bear the brunt of this new legislation.

There is, however, one change that does make sense.

• It is clarified that the Division of Florida Condominiums, Timeshares, and Mobile Homes, which has jurisdiction over certain disputes in residential condominiums, has no jurisdiction whatsoever over similar disputes in a commercial condominium.

While it is a commonly accepted legal principal that the purchaser of commercial property purchases such commercial property at their own risk and, for all practical purposes, has little recourse against the seller for nondisclosure, these recent changes to the commercial condominium regime are reckless and extremely dangerous. In the end, if you purchase a commercial condominium, DANGER WILL ROBINSON, DANGER!

 

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(7-23-14)

A Deeper Look into New Legislation Affecting Condominium, Homeowners’ and Cooperative Associations

Assessments, Insurance, E-mail Communications, 

Directories & Emergency Powers

Chapter 718, Florida Statutes, is referred to as Florida’s Condominium Act. Section 718.116 of the Condominium Act has been revised to provide that the term "previous owner" relative to the joint and several obligations to the association for unpaid assessments, does not include a condominium association that acquires title to a delinquent property through foreclosure or by deed in lieu of foreclosure. However, the liability of a present owner, such as a third party purchaser in a lender foreclosure, is limited to unpaid assessments that accrued before the association acquired title. Of great interest is that interest, late fees, attorney’s fees and costs incurred by the association in foreclosing on the unit, along with assessments obligations that came due while the association held title to the unit, will not be the present owner’s obligation. Similar changes were made to Chapter 720, Florida Statutes, otherwise known as the Homeowners’ Association Act, last year.

Section 718.111(11) of the Condominium Act regarding insurance, has once again been revised. Subsection (j) now provides that, in the absence of an insurable event, any repairs that are required will be made by the association or the unit owner, in accordance with the declaration or bylaws. This law clears up some confusion that was created by a few prior court cases which generally held that whoever had the duty to insure (the association as compared to the unit owner) also had the duty to effectuate the repair, regardless of the provisions in the declaration. Now we know to look to the declaration or bylaws to make such determinations. However, this new law does not clarify whether a casualty for which coverage is denied is considered an "insurable event" (Oh Brother!).

A great number of questions are being mulled as to board member to board member e-mail communications. Section 718.112 of the Condominium Act now authorizes board members to use e-mail as a means of communication, however, this new law also clarifies that board members may not cast their vote on an association matter via e-mail. (Sorry HOA board members, this only applies to condominium associations, for now.) So, just what can be discussed? On one end of the spectrum, clearly, setting the board’s agenda items for its next meeting would seem appropriate. On the other end of the spectrum, voting via e-mail is a "no-no" and violates the new legislation. What about everything in between? For example, can the board discuss the condition of the swimming pool and the need to acquire bids for consideration at the next board meeting? Can the board discuss via e-mail the need for a new gate? A parking garage repair? A raise for the manager? Just what can be discussed in these e-mail communications? Well, try to look at it this way. When communicating via e-mail, do not communicate any differently than if you were on the street, eye to eye with your fellow board member. In that way, you are bound to stay in the safe zone.

Associations can already publish in their community directory the address and phone number provided by a member for their official association meeting notices and the like. New legislation was passed that also permits all condominium, cooperative and homeowners’ associations to publish all of their members’ telephone numbers in the community directory, but any owner can opt-out in writing and not have their numbers listed. Additionally, subject to the affirmative written consent of an owner to opt-in, such owner can consent in writing to the disclosure of other additional contact information by the association (for example, e-mail addresses).

Homeowners’ Association Boards have been provided clear emergency powers similar to those previously provided to Condominium Association Boards. In the event of a state of emergency, a HOA board may:

• conduct board and membership meetings after notice of the meetings is provided in as practicable a manner as possible;

• cancel and reschedule an association meeting;

• designating assistant officers, who are not directors, to step into the shoes of an officer in the event an officer is incapacitated or unavailable;

• relocate the principal office of the association;

• enter into agreements with counties and municipalities to assist with debris removal;

• implement a disaster plan before or immediately following the state of emergency event is declared, which may include turning or shutting off elevators, electricity, water, sewer, security systems or air conditioners;

• based upon advice of emergency management officials or upon advice of licensed professionals retained by the board, determine any portion of the property unavailable for entry or occupancy;

• mitigate further damage, including taking action to contract for the removal of debris and to prevent or mitigate the spread of mold, regardless of which party is responsible by the governing documents or law to insure, or remove fixtures and personal property.

• levy special assessments without a vote of the owners;

• borrow money and pledge association assets as collateral without a vote of the owners.

 

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(7-9-14)

159 New Laws That Did Not Go Up in Smoke — A Quick Look at Medical Marijuana … No Smoke, No Foul

In addition to the numerous changes to Chapters 718, 719, and 720 of the Florida Statutes, more commonly known as the Condominium Act, the Cooperative Act, and the Homeowners’ Association Act, respectively, many other laws went into effect today, too. A few of the changes as reported in the July 1st edition of the Miami Herald include Florida’s $77 billion dollar budget which went into effect.

• It would appear that if a Floridian threatens to use a gun, or fires a warning shot, such actions might avoid criminal prosecution. The new law signed by Governor Rick Scott was brought about after a Jacksonville woman was initially sentenced to 20 years in prison after firing a shot near her estranged husband. She had unsuccessfully argued Florida’s "stand your ground defense" to a judge who rejected her claim. As a result, she was sentenced under Florida’s "10-20-Life" law, which requires mandatory sentences for using a gun. This new law provides that Florida’s "10-20-Life" rule may not apply in instances of threatened use of force when the victim threatens to use a gun, or fires a warning shot.

• Tax collectors’ offices can handle concealed-weapon license applications.

• Electronic cigarette sales to minors are prohibited.

• Insurance companies may not deny coverage or increase your rates because you own a gun.

• The "Florida GI Bill" provides for university tuition waivers for veterans.

• School districts will need to establish a system for parents to contest the selection of certain textbooks and classroom materials.

• There is an increase in penalties for drivers who leave the scene of serious accidents.

• There are changes to the Sunshine Laws which remove certain items from public access, including personal information of people involved in animal research and certain personal contact information that you might find in vehicle crash reports.

• The budget also includes additional funds to deal with water pollution and additional funding for child welfare programs.

* * * * * * *

With all the chatter about medical marijuana taking place in the state, I was recently asked whether a condominium association that has lawfully adopted a no-smoking policy must allow a resident to smoke their medicinally prescribed marijuana (assuming it’s not illegal at some time in the near future). In examining the Fair Housing Act, if the resident has a disability that affects a major life function recognized by federal, state or local law, and the medical marijuana is prescribed to help alleviate the disability, you might think that in order to provide the resident equal opportunity to use and enjoy the unit, a reasonable accommodation must be granted. Think again, because at the present time, marijuana remains a "controlled substance" under federal law. Therefore, the protections provided by the Fair Housing Act do NOT apply to medical marijuana use.

An even more interesting question is whether Florida, if it does adopt laws allowing use of medical marijuana, will sue the federal government for interference with state law. In the meantime, should medical marijuana become legal, an easy solution to the no-smoking dilemma may well rest on the patient’s ability ingest their medication without having to smoke, such as using vaporization, consuming medical marijuana in food, teas and tinctures… No smoke, no foul.

 

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(6-25-14)

2014 Legislative Results 

— a continuing series

Cooperative Associations

Every year about this time I am asked, "How does this year’s legislation affect our cooperative? Jeff, you wrote about condominium and homeowners’ associations’ legislation, what about us cooperatives?" You asked for it, you got it!

Owner Directories. A cooperative association may publish a directory providing ALL of the telephone numbers associated with an owner in addition to an owner’s name and address. An owner can also provide their written consent to the disclosure of other contact information which is otherwise not supposed to be disclosed by the cooperative.

Return of Records and Property by Outgoing Board and Committee Members. Within five days after the new board and committee members are elected or appointed, all prior board and committee members are now under a statutory obligation to return all official records and property of the cooperative in their possession, or control, to the incoming board and committee members. Those outgoing board and committee members who willfully and knowingly fail to return such records and property are subject to penalties imposed by the Division of Florida Condominiums, Timeshares, and Mobile Homes.

Financial Reporting. Within 90 days following the end of the fiscal year, unless otherwise provided in the bylaws, the cooperative must prepare and complete, or have prepared and completed, a financial report for the preceding fiscal year. The financial report, or a notice that the financial report is available at no cost upon request, must then be provided to the owners within 120 days following the end of the fiscal year, unless otherwise provided in the bylaws. A majority of the members present at a membership meeting can vote to waive the financial reporting requirement for a fiscal year but cannot do so for more than three consecutive years and can vote to raise the level of financial reporting. Financial reports are to be prepared in the following manner:

• An association in a community of fewer than 50 units, regardless of the association’s annual revenues, shall prepare a report of cash receipts and expenditures, unless the declaration or other recorded governing documents provide otherwise.

• An association with total annual revenues of less than $150,000 shall prepare a report of cash receipts and expenditures.

• An association with total annual revenues between $150,000 and $299,999 shall prepare a compiled financial statement.

• An association with total annual revenues between $300,000 and $499,999 shall prepare a reviewed financial statement.

• An association with total annual revenues of $500,000 or more shall prepare an audited financial statement.

Board Member Eligibility and Suspension. A member who has pending charges for felony theft or embezzlement involving the association’s funds or property may not be appointed or elected to a position as a director or officer. A member who has been convicted of any felony in any state or who has been convicted of any offense in another state which would be considered a felony if committed in Florida is not eligible for board membership unless their rights have been restored for at least 5 years as of the date the member seeks election to the board. A member who has been suspended or removed by the Division of Florida Condominiums, Timeshares, and Mobile Homes or who is delinquent in the payment of any monetary obligation due to the association is not eligible to be a candidate for board membership and may not be listed on the ballot.

A director or officer charged with felony theft or embezzlement involving the association’s funds or property is suspended from office; the vacancy of which is filled by the board until the end of the suspension or the end of the term, whichever occurs first. However, if the charges are resolved without a finding of guilt or without acceptance of a plea of guilty or nolo contendere, the director or officer shall be reinstated for the remainder of the term. The validity of an action by the board is not affected if it is later determined that a board member is ineligible for board membership because the board member was convicted of a felony.

Emergency Powers. A cooperative can perform several actions in the event of a "state of emergency", unless specifically prohibited by the association’s recorded governing documents. Among others, such actions of the board include the following: (i) designating assistant officers, who are not directors, which will step into the shoes of an officer in the event the officer is incapacitated or unavailable; (ii) conducting, canceling or rescheduling association meetings and providing notice of such meetings in as practicable a manner as possible as the board deems appropriate under the circumstances; (iii) mitigating further damage, which may include the removal of debris and the removal of wet drywall, cabinets and fixtures; (iv) implementing a disaster plan before or immediately following the "state of emergency" event; (v) requiring the evacuation of the cooperative property; and (vi) contracting, on behalf of the owner and at the owner’s expense, for items or services which the owner is responsible. Additionally, based upon the advice of emergency management officials or licensed professionals hired by the board, the board may determine if the property or any portion of the property is unavailable for entry or occupancy or if the property or any portion of the property can be safely inhabited or occupied.

The board may, without a vote of the members, levy special assessments and borrow money, using the association’s assets as collateral, to fund repairs and to carry out the association’s business in the event the operating funds are not enough.

All of these emergency powers are only available to the board for a period of time that is reasonably necessary to mitigate further damage and make repairs and to protect the health, safety and welfare of the association and the residents of its community.

 

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(6-11-14)

The 2014 Legislative Results, 

a continuing series

House Bill 807’s Effect on Homeowners’ Associations

In this article we’ll review House Bill 807’s (HB 807) effect on Florida Homeowners’ Associations (HOA). As mentioned when we discussed HB 807’s effect on condominiums, on May 2, 2014, HB 807 was approved by both the Florida’s House of Representatives and Senate. However, HB 807 is not yet law. In order for HB 807 to become effective law, Governor Rick Scott can either sign HB 807 into law or take no action at all thus allowing HB 807 to become law on July 1, 2014, HB 807’s effective date. That said, Governor Scott does have the ability to veto HB 807 if he so chooses. Among other changes affecting residential properties, HB 807 makes some notable changes and additions to Chapter 720, Florida Statutes, (a/k/a the "Homeowners’ Association Act"). This article will give you a sneak peek into four notable changes if HB 807 is adopted into law.

1. Handicap Accessible Meeting Locations. HB 807 requires that HOA board meetings and membership meetings be held at a location accessible to physically handicapped persons IF it is requested by a physically handicapped person who has a lawful right to attend the meeting.

This new language may likely be a reaction to the decision made in a Dade City, Pasco County, Florida case regarding a wheelchair bound man’s desire to attend his homeowners’ association meetings. According to Laura Kinsler, as she reported for the Pasco Tribune and the Tampa Tribune on March 25, 2014, John Whitt, a wheelchair-bound member of the homeowners’ association, wanted to attend board meetings but was prevented access because the board insisted on holding its meetings on an unfinished lakefront lot that was not wheelchair accessible.

According to the article, the wheelchair bound member accused his association of violating the Fair Housing Act (FHA) and also for not having meetings that were open to all members as required by Chapter 720, Florida Statutes. The case was ultimately dismissed, as reported by Ms. Kinsler, when a newly assigned judge "ruled that ‘there is no legal basis to support the plaintiffs’ contention that the open meeting provision of [the law] requires wheelchair accessibility’ since private community associations are not subject to the federal Americans [w]ith Disabilit[ies] Act [(ADA)]." Notably, the ADA applies to areas of public accommodation, while the FHA applies to housing providers, which includes residential community associations.

Oddly, the FHA was not discussed which, at least in this author’s opinion, would require that a reasonable accommodation be granted to the wheelchair bound member so that he could attend the HOA’s meetings. Nevertheless, despite the perplexing outcome to this case, HB 807 provides a legislative remedy to the ruling in this case.

2. Emergency Powers. HB 807 creates section 720.316, which is a brand new section to the Homeowners’ Association Act. It provides for "emergency powers". Under this new section, a HOA can perform several actions in the event of a "state of emergency", unless such acts are specifically prohibited by the association’s recorded governing documents. Such actions of the board include the following: (i) designating assistant officers, who are not directors, which will step into the shoes of an officer in the event the officer is incapacitated or unavailable; (ii) conducting, canceling or rescheduling association meetings and providing notice of such meetings in as practicable a manner as possible as the board deems appropriate under the circumstances; (iii) mitigating further damage, which may include the removal of debris and the removal of wet drywall, cabinets and fixtures; and (iv) implementing a disaster plan before or immediately following the "state of emergency" event. Additionally, based upon the advice of emergency management officials or licensed professionals hired by the board, the board may determine if the property or any portion of the property is unavailable for entry or occupancy or if the property or any portion of the property can be safely inhabited or occupied.

In the exercise of these emergency powers, the board may, without a vote of the members, levy special assessments and borrow money, using the association’s assets as collateral, to fund repairs and to carry out the association’s business in the event the operating funds are not enough.

These emergency powers are only available to the board for a period of time that is reasonably necessary to mitigate further damage and make repairs to protect the health, safety and welfare of the association and the residents of the community.

3. Member Directories. Currently, section 720.303(5)(c)5, Florida Statutes, provides that a HOA can prepare and provide its members with a directory containing the name, address and telephone number of each owner. HB 807 amends this section to allow a HOA to publish ALL of the telephone numbers associated with each owner. In addition, an owner can provide their written consent to the disclosure of other contact information which is otherwise not supposed to be disclosed by the homeowners’ association.

4. Amendment Mailings. HB 807 provides that, if the association mailed a copy of a proposed amendment to the members prior to the membership vote to approve the proposed amendment and the proposed amendment was unchanged from the time of mailing all the way to the vote of the members, then the association only has to notify the members that the proposed amendment was adopted and that a copy of the amendment is available, upon written request to the association, at no charge to the member. The notice to the members must also provide the official record book and page number of the recorded amendment. In addition, it can be electronically transmitted to those members who have consented to receiving their association notices electronically.

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(5-28-14)

Hurricane Season is Almost Here ... Is Your Association Prepared?

June 1st marked the beginning of the 2014 hurricane season, and is only days away. Weather forecasters from Colorado State University predict a below average hurricane season. They anticipate that nine tropical storms will form but that only three will develop into hurricanes, "it only takes one landfall event near you to make this an active season", says meteorologists Philip Klotzbach of Colorado State University’s Tropical Meteorology Project. So, is your association prepared for this hurricane season?

It is important that association’s board of directors ensure that the association’s insurance policies are in place and that the board understands the association’s coverages and deductibles. It is important that the board of directors of a condominium association understand that, pursuant to section 718.111(11) of the Condominium Act, they must use their "best efforts" to obtain and maintain adequate insurance to protect the association, the condominium property and the common elements.

Even though a hurricane may pass in a matter of hours, the effect of a hurricane can last for days, weeks or even months depending on the strength of the hurricane and the damage it leaves in its wake. After a storm has passed it is important that the board members survey the damage caused by the storm. Some great tools for the association’s board, after a hurricane, are walkie-talkies, a disposable camera, a notepad and a pen or a pencil to take notes (remember, we used to use these things before our smart phones! No Power = No smart phones, too!). These tools will help board members keep in contact with one another after a storm and will help the board document any damage to the condominium property for insurance purposes.

If you haven’t done so already, the association should adopt a written hurricane plan. On a related note, the association should create and distribute to its board members a list of trusted vendors, including the contact information for each vendor. This can really come in handy in the event damages are sustained. Such vendors may include, to name just a few, restoration specialists, landscapers, plumbers, electricians, insurance contacts, including the association’s insurance agent’s contact information. Additionally, board members should know how to locate electrical meters, fire system panels, water shutoffs and any other relevant property features are located and how to operate such features.

Pursuant to section 718.111(5), Florida Statutes, a condominium association has "the irrevocable right of access to each unit during reasonable hours, when necessary for the maintenance, repair, or replacement of any common elements or of any portion of a unit to be maintained by the association pursuant to the declaration or as necessary to prevent damage to the common elements or to a unit or units." Access to units is of particular importance in the event of a storm. Condominium associations should ensure that it has keys to access each unit. All associations should ensure they have accurate contact information for each of its owners.

There are several simple things an association can do to help prevent damage to the property in the event of a tropical storm or hurricane. Trees, although beautiful, can cause a great amount of damage in a storm. Associations should make sure that the palms and other trees located on the condominium property are properly trimmed in advance of hurricane season. Anything that can fly around should be stowed away, such as roof tiles and patio furniture. Associations should also adopt rules and regulations which provide for what unit owners must do in the event of a tropical storm or hurricane, such as hurricane shutter use. With regard to an association’s official records, hard copy records, such as insurance binders, member contact information, bank account information, etc., can be stored in water tight containers and should be backed up on an external hard drive and with a cloud-based data storage service.

It is important that the board members remain in contact with each other in the event of a tropical storm or hurricane and, above all, to keep an open line of communication with its unit owners. Unit owners should be informed of the status of the property and the actions the board of directors is taking to repair or replace any damaged condominium property. Hurricane events are stressful. Communication is key!

 

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(5-14-14)

A Sneak Peak Into The 2014 Legislative Results

On May 2, 2014, House Bill 807 (HB 807), was ap-proved by both the Florida’s House of Representatives and Senate. It now awaits the signature of Governor Rick Scott to make it effective law or, if he does nothing at all, it will still become law. That said, Governor Scott does have the ability to veto HB 807 if he so chooses. Among other changes affecting residential properties, HB 807 makes some notable changes and additions to Chapter 718, Florida Statutes, more commonly known as the "Condominium Act." This article will give you a sneak peek into five notable changes.

1. Right to Enter an Abandoned Unit. HB 807 amends section 718.111(5), Florida Statutes, regarding a condominium association’s right to access an abandoned unit. Under these new provisions, a condominium association can enter an abandoned unit to inspect the unit and the adjoining common elements, to make repairs as needed, to turn on the utilities to the unit and to otherwise maintain and protect the unit and adjoining common elements.

A unit is considered abandoned under the following circumstances: i) the unit is under foreclosure and no tenant appears to have lived at the unit for four consecutive weeks without prior written notice to the condominium association, or ii) no tenant appears to have lived at the unit for two consecutive months without prior written notice to the condominium association and the condominium association is unable to contact the owner or determine the owner’s whereabouts after reasonable efforts. Prior to entering an abandoned unit, the condominium association must send two days notice of its intent to enter the unit to the owner at their last known address.

Any costs associated with the abandoned unit are chargeable to the owner and, no doubt of interest to many readers, such costs are assessable against the unit. Additionally, the condominium association can request that the court appoint a receiver to lease the abandoned unit. The rent collected is credited against the monies due to the association and receiver.

2. Unit Owner Directories. Currently, section 718.111(12)(c)5, Florida Statutes, provides that a condominium association can prepare and provide its members with a directory containing the name, address and telephone number of the unit owners. HB 807 amends this section to allow a condominium to publish ALL of the telephone numbers associated with unit owners. In addition, unit owners can provide their written consent to the disclosure of other contact information which is otherwise not supposed to be disclosed by the condominium association.

3. Return of Records and Property by Outgoing Board and Committee Members. HB 807 adds a new subsection "(f)" to the official records requirements located in section 718.111(12), Florida Statutes. This new subsection imposes a statutory obligation on outgoing board and committee members to return all official records and property of the condominium association in their possession, or control, to the incoming board and committee members within five days after the new board and committee members are elected or appointed. Those outgoing board and committee members who willfully and knowingly fail to return such records and property are subject to penalties imposed by the Division of Florida Condominiums, Timeshares, and Mobile Homes.

What is noticeably absent from this new provision is the application of this statutory obligation on outgoing officers, too. While in the overwhelming majority of condominium associations the officers are comprised of board members, it is certainly possible for the board to select officers who are not board members, unless otherwise prohibited in the governing documents. This means that officers who are not board members would be free from this particular statutory obligation and civil penalty.

4. Board Member E-mail Communication, Attendance and Voting. A new provision is added by HB 807 to section 718.112(2)(c), Florida Statutes, which provides that board members may use e-mail to communicate to one another but cannot use e-mail to cast a vote on condominium association matters. However, while the board members are provided the right to communicate via e-mail, there is no mention in the legislation whether the board majority or only the board minority may do so.

Finally, yes finally, board members can appear and vote at board meetings not only via speakerphone, but now by video conference or similar real-time electronic or video communication so long as a speaker is used so that everyone can hear the "electronically appearing" board member. While likely apparent, a board member’s electronic appearance is counted towards establishment of a quorum, too.

5. Assessment Liability as Applied to a Condominium Association. HB 807 further defines the term "previous owner" in section 718.116(1)(a), Florida Statutes, as it relates to a unit owner’s liability for the unpaid assessments of the previous owner and provides for how such liability is applied when the condominium association was a prior owner of the unit.

This new language is likely a reaction to the decisions of the Third District Court of Appeal in Aventura Management, LLC v. Spiaggia Ocean Condominium Association, Inc., Case No. 3D13-1437 (Fla. 3d DCA March 5, 2014) and Park West Professional Center Condominium. v. Londono, 38 Fla. L. Weekly D2510 (Fla. 3d DCA November 27, 2013). In both cases, the Court held that a unit owner is only liable for the unpaid assessments of the immediate-prior unit owner, and according to the Spiagga court case, if the prior owner was the association, then, by way of an oversimplification, the debt merged into the ownership as a result of the association taking title to the unit and, therefore, since you can’t owe money to yourself, the assessment debt re-sets to zero. In any event, thanks to HB 807, condominium associations have some new clarity in this regard. As amended by HB 807, section 718.116(1)(a), Florida Statutes, would additionally provide, in pertinent part, that:

"For purposes of this paragraph the term ‘previous owner’ does not include an association that acquires title to a delinquent property through foreclosure or by deed in lieu. A present unit owner’s liability for unpaid assessments is limited to unpaid assessments that accrued before the association acquired title to the delinquent property through foreclosure or by deed in lieu."

This new language added to section 718.116(1)(a), Florida Statutes, if and when it becomes effective, removes a condominium association from the classification of being a "previous owner," which means that a unit owner is not jointly and severally liable to the condominium association for the unpaid assessments that came due while the condominium association owned the unit. However, unlike the holdings of the Court cases previously mentioned, a unit owner would be jointly and severally liable for the unpaid assessments of other former owners pursuant to these new provisions.

Stay tuned for future legislative updates including HB 807’s effect on homeowner associations.

Unless vetoed, HB 807 becomes law on July 1, 2014.

 

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(4-30-14)

Assessment Liability: A Buoy to Third Party Purchasers and Foreclosing Lenders in the "Safe Harbor"

On January 3, 2014, in U.S. v. Forest Hill Gardens East Condominium Association, Inc., the United States Federal District Court for Florida’s Southern District held that the provision of the condominium association’s declaration, which provided that a foreclosing lender had no liability to the association to pay its share of common expenses or assessments pertaining to the foreclosed unit which became due prior to the foreclosing lender’s acquisition of title, trumped the provisions of section 718.116(1)(b), Florida Statutes, commonly referred to as the "safe harbor" provision, which would have entitled the association to the receipt of the lesser of one percent of the initial mortgage or 12 months back assessments. Because this case is being used as the basis for avoidance of lender assessment liability upon taking title as a result of the lender’s mortgage foreclosure, it is important that every community association manager and community association board member understand why the Court reached this very distinguishable conclusion.

Since at least 1992, every foreclosing lender of a condominium unit has been responsible to pay the "safe harbor" amount. What makes this situation so very different that the Court held the lender had no liability but to pay assessments as they came due AFTER taking title? The Forest Hill Gardens East Declaration of Condominium (the "Declaration") contained some very unique and extremely uncommon language. The provision at issue provided that "the present provisions of the Condominium Act… are incorporated…" into the Declaration and that "the provisions of this Declaration… shall be paramount to the Condominium Act..." Of great importance to understanding the Court’s logic is that, in this case, the Declaration was recorded in 1980, long before the version of section 718.116, Florida Statutes, at issue was amended by the Florida legislature in 1991.

After first confirming that your association’s declaration does not contain a similar provision, the next time a foreclosing lender argues that they do not have to pay the "safe harbor" in reliance on the Forest Hill Gardens East case, you know better.

On a related but different note, the Forest Hill Gardens East case clarifies that interest, late fees, collection costs and attorney’s fees are not to be added to the "safe harbor" amounts when otherwise due because, the Court reasoned, these expenses are neither common expenses nor regular periodic assessments.

Two other recent cases discuss a third party purchaser’s liability to a condominium association in the context where (1) the condominium association first foreclosed a unit assessment lien and, as a result, ended up owning the unit, and then (2) the lender foreclosed its unpaid mortgage which wiped out the association’s ownership interest in the unit and then (3) as a result of the lender’s foreclosure, a third party ended up being the winning bidder at the lender’s foreclosure auction and took ownership of the foreclosed unit.

Both the Third District Court of Appeal in Park West Professional Center Condominium Association, Inc. v. Londono, decided November 27, 2013, and the Fourth District Court of Appeal in Aventura Management v. Spiagga Ocean Condominium Association, Inc., decided on March 3, 2014, held that the joint and several liability of the new owner for past assessments only related back to the prior owner, that being the association. Neither association could look to the prior owners’ assessment deficiencies and collect it from the winning third party bidder of the lender’s foreclosure sale. Thus, these cases are being used to assert that the third party purchaser of a lender foreclosure does not have to pay bask assessments that were accrued as a result of the delinquencies of all other owners of the unit, but only for those of the immediate prior owner.

While, pursuant to section 718.116(1)(a), Florida Statutes, each owner is jointly and severally liable to the association for the back assessments that remain unpaid, a plain reading of these cases would suggest the new owner is only liable for the unpaid assessments of the immediate prior owner. Technically, this is true, but it is crucial to understand that the unpaid assessments of each owner become the next owner’s responsibility. But, in these two cases, it was the association itself that was the immediate prior owner. Thus, carrying the unpaid balances of the other prior owners forward the association as the immediate prior owner and then to the third party purchaser who acquired the unit as a result of the lender’s foreclosure sale, meaning that the new owner does indeed have no liability for the prior unpaid assessments. The reason why is not fully explained in either case. Simply put, because the association took title to the units, the debts of all prior owners of that unit were wiped clean as of the day the association took title. In other words, the debt merged into the ownership of the unit. Because, in both cases, the associations were the immediate prior owner of the units, the prior assessment debts were all carried forward to the association and, for all intents and purposes, were wiped out since you can’t owe money to yourself.

So, the next time a third party purchaser tries to argue that they are only responsible to pay the back assessments of the immediate prior owner, you will know that only applies if the immediate prior owner was the association. If it was anyone else, you might say, after confirming with your association’s lawyer, PAY UP, PAL!

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(4-16-14)

A Strange Encounter Between the Fair Housing Act and the Marketable Record Titles to Real Property Act

In a recent Dade City case, a Pasco County judge ruled that a homeowners association (HOA), which had specially assessed its members for mounting legal fees regarding a costly dispute over wheelchair access to its meetings, has no authority to assess homeowners for its legal bills because the HOA’s covenants had expired likely due to the Marketable Record Titles to Real Property Act (MRTA). According to Laura Kinsler as she reported for the Pasco Tribune and the Tampa Tribune, John Whitt, a wheelchair-bound member for the homeowners’ association wanted to attend board meetings but was prevented access because the board insisted on holding its meetings on an unfinished lakefront lot that was not wheelchair accessible.

According to the article, the wheelchair bound member accused his association of violating the Fair Housing Act (FHA) and also for not having meetings that were open to all members as required by Chapter 720, Florida Statutes. Early in the case, it seemed the member would rue the day. He had won the often hard to obtain and revered temporary emergency injunction, which in this case, required the association to meet for the entire year in wheelchair accessible locations. However, as fate would have it, the case was reassigned. Ms. Kinsler reported that the case was dismissed when the new judge "ruled that ‘there is no legal basis to support the plaintiffs’ contention that the open meeting provision of [the law] requires wheelchair accessibility’ since private community associations are not subject to the federal Americans [w]ith Disabilit[ies] Act [(ADA)]."

The outcome is perplexing because while the ADA and the FHA are similar in application, they apply to two very different situations. The ADA applies to areas of public accommodation, while the FHA applies to housing providers, which includes residential community associations. Occasionally however, the ADA will apply to a residential community association where there is a "public use" at play, such as when an association rents its clubhouse for weddings. The reason the case is perplexing is because, as reported, the plaintiff sued under the FHA, but oddly, the trial court issued its ruling citing the ADA. If this is the case, then we may not have heard the last of this case yet. But, WAIT! It gets better still.

During the pendency of the case, the association’s legal bills, according to the article, reached "upwards of $70,000." After the association levied its third special assessment, several other association members sued the association asserting that the deed restrictions had expired. Ostensibly, while the article does not specifically explain why, it was likely the effect of MRTA which, by way of an over-simplified explanation, abolishes restrictions recorded against real property not sooner than 30 years after their initial recordation, subject only to certain exceptions. Under Florida law, a HOA is permitted, by board action alone, to take certain measures prior to the expiration of the 30 years to preserve the community’s declaration of covenants and restrictions. If that does not occur, then it is required that a majority of those members affected vote in favor of revitalizing the community’s declaration of covenants and restrictions. If not, then the covenants no longer have any enforceability, including the right of the HOA to levy assessments.

Every HOA board member should be aware that according to a 2013, 4th District Court of Appeal decision, Southfield’s of Palm Beach Polo and Country Club, et. al. v. McCullough, the court held that HOA board members can have personal liability for allowing their covenants to expire, though the extent of their personal liability was not discussed. In another case, a lawyer was found to have liability where the lawyer failed to advise their HOA client of an impending 30 year MRTA deadline. As an aside, condominium association board members can let out a big sigh of relief because the nasty effects caused by the application of MRTA do not apply to condominium associations.

On a related note, Senate Bill 1450 was recently introduced which would require all HOAs to have meetings in locations that are accessible to physically handicapped persons. On an unrelated note, some good news to report: that nasty pending 2014 legislative bill that would have required a door tax to be paid by every HOA member in the state, similar to the $4.00 per condominium owner tax, died a deserving death a few days ago!

 

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(4-2-14)

Assistance Animals: A Not So Happily Ever After

How many times have you heard the old axiom, "ignorance of the law is no excuse?" Well, it’s never more true than in the Fair Housing Act (FHA) reasonable accommodation request for an "emotional support animal" arena.

In a 2012 Fourth District Court of Appeal case, Sun Harbor Homeowners’ Association, Inc. v. Bonura, the homeowners’ association brought an action against a homeowner for violation of it’s no dog policy. As could be expected, the homeowner counterclaimed asserting that his live-in fiancée was entitled to the use of an "emotional therapy dog" (referred to by HUD as an "assistance animal/emotional support animal").

Initially, the association demanded removal of Bonura’s fiancée’s dog due to the association’s no dog policy. In response, Bonura demanded an accommodation and informed the association that the dog was a "registered service dog" needed to assist his fiancée with her disability. Bonura did not provide any specificity as to the nature of the disability, but however, provided a "Registered Service Dog Certificate" purchased from an online vendor. In response, the association advised him, in writing, that he needed to have his request for accommodation placed on the association’s agenda for the next board meeting at which he would need to:

"1) demonstrate that a resident suffers from a medical disability or handicap, unless the disability or handicap was visible, and indicating that any written information provided by the resident would not be copied or shared and would be returned after viewing;

2) demonstrate how the service animal [sic] can or will reasonably accommodate the disability;

3) demonstrate that the service animal [sic] has special skills or training to accommodate the handicap; and

4) demonstrate how the special skills and in training of the service animal [sic] and will set it apart from an ordinary pet."

To make a long story short, the Court ruled in favor of the association, and in so doing noted that Bonura never requested to be placed on the association’s agenda and that Bonura did not provide the necessary information for the association to conduct a meaningful review of the request for the accommodation.

If this case had been recently filed and had Bonura minimally alleged that the need for the assistance animal was related to his fiancée’s emotional disability, the outcome would likely have been drastically different. Here is why: On April 25, 2013 the U.S. Department of Housing and Urban Development (HUD), issued a Fair Housing Equal Opportunity Notice, FHEO – 2013–01 ("FHEO Notice") and provided significant clarity as to Americans with Disabilities Act (ADA) "service animals" as compared against FHA "assistance animals" (and it’s subset classification of "emotional support animals"). First and foremost, the ADA applies to places of public accommodation. The FHA applies to housing providers, such as community associations. There can be some interplay between the ADA and the FHA such as a community association that allows it’s clubhouse to be rented out to the general public. The term "service animals" only refers to dogs (or miniature horses) and applies to the ADA, which as of this recent FHEO Notice, specifically excludes "emotional support animals." In short, the practical application of excluding "emotional support animals" from the definition of "service animal," means that a public facility does not need to permit "emotional support animals." In any event, FHA "emotional support animals" do not require any specific training or certification whatsoever. Therefore, by asking whether the fiancée’s animal had special skills or training to accommodate the disability and how the special skills and training which set the animal apart from an ordinary pet would likely have cost the association thousands, if not hundreds of thousands of dollars, in penalties.

According to the FHEO Notice, after a housing provider receives a request for an assistance animal, the housing provider must consider: 1) does the person seeking to use and live with the animal have a disability, i.e., a physical or mental impairment that substantially limits one or more major life activities? and 2) does the person making the request have a disability-related need for an assistance animal? In other words does the animal work, provide assistance, perform tasks or services for the benefit of the person with the disability or provide emotional support that alleviates one or more of the identified symptoms or effects of the persons existing disability?

Remember, breed, size and weight limitations may not be applied to an assistance animal. While an association may require a pet deposit, the association may not require deposits for assistance animals. Furthermore, again according to the FHEO Notice, the assistance animal is allowed in all areas of the premises where persons are normally allowed to go, unless doing so would impose an undue financial and administrative burden or would fundamentally alter the nature of the housing provider’s (the association’s) services.

Finally, remember that if the assistance animal in question poses a direct threat of harm to others or would cause substantial damage to the property of others, based on objective evidence and not mere speculation or fear, then that specific animal may be prohibited.

Wait until you read Florida House Bill 849, which is gaining traction in the legislature. Rather than use the FHA and ADA definitions, this legislation confuses the term "service animal" to also include "assistance animals" with the exception of an "emotional support animal" that, at least in this bill, stands on its own.

 

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(3-19-14)

Assistance Animals and the FHA- A New Case To Consider

On March 13, 2014, the United States District Court for the Southern District of Florida entered its 33 page Omnibus Order in Sabal Palm Condominiums of Pine Island Ridge Association, Inc. v. Fisher, et al. The term "Omnibus" was used in the title of this order to reflect the myriad of issues addressed by the Court. The Sabal Palm opinion addresses a disabled owner’s request for an assistance animal trained to alleviate problems caused by the owner’s multiple sclerosis. In this case, Fisher’s (the unit owner) request for an assistance animal was related to an observable disability where copious information was provided to Sabal Palm at its request to substantiate the need for the assistance animal. Rather than grant the reasonable accommodation, Sabal Palm sued Fisher for declaratory judgment to have the trial court determine whether Sabal Palm was required to grant the reasonable accommodation and to decide the extent of the medical records that it was entitled to receive. In response, Fisher counterclaimed against Sabal Palm alleging discrimination and also sued the president in his PERSONAL capacity. Thereafter, motions to dismiss were served. Attention is now turned to the instructional value of this resulting Omnibus Order.

First and foremost, the Court recognized that when it comes to emotional support assistance animal requests there is plenty of abuse being suffered by housing providers. The Court even sites to a report "prepared for a Senate Informational Hearing on the subject of fake service [sic, assistance] dogs" and acknowledges that this is a growing problem. The Court even went so far as to state that "there is some reason to be skeptical of requests to keep a dog as an accommodation for a disability in certain cases, particularly cases where the dog assists the disabled person by rendering emotional support." However, Sabal Palm treated Fisher with unjustifiable skepticism when it decided to file the lawsuit for declaratory judgment against her. By that time, the Court seems to have concluded, that Sabal Palm should have granted the request for the accommodation based on all of the information in Sabal Palm’s possession.

Lessons to be learned from this case include:

1) A board member can be sued in their personal capacity for a violation under the Fair Housing Act ("FHA") where the board member acted recklessly, in bad faith, or with wanton and willful disregard to human rights. (So, while the Court allowed Fisher’s cause of action against the president, in his personal capacity, it is not yet known whether the president will be found liable. Rather, the Court merely perfected the cause of action and in so doing, did not dismiss the claim.)

2) In examining these types of discrimination cases, the Court referred to another seminal case, Oberbrook, where that court looked at three factors to analyze: i) the extent of housing providers delay and obstruction of the request by the filing of a lawsuit by the housing provider, ii) the state of the law at the time the lawsuit was filed, and iii) whether the housing provider’s delay in granting the accommodation request had the effect of depriving the disabled person their requested accommodation.

3) In response to a request for a reasonable accommodation, a housing provider may request reliable disability-related information that i) is necessary to verify the person meets the FHA’s definition of disability, ii) describes the need for the accommodation, and iii) shows the relationship between the person’s disability and the need for the requested accommodation.

4) When the disability is readily apparent, the housing provider may not request additional information about the requestor’s disability. When the disability is not obvious, the housing provider may request more information limited to precisely what is not obvious.

5) A request for a reasonable accommodation can be constructively denied based on delay in rendering the decision.

6) Punitive damages are available under the FHA for a "refusal to accommodate" claim if a court finds that a discriminatory housing practice has occurred or is about to occur.

In the Sabal Palm case, it was found that Sabal Palm had more than enough information to conclude that Fisher was entitled to the requested accommodation. Yet, Sabal Palm requested even more information. The Court also found that the FHA’s Joint Statements (where the interpretation of the FHA of both the Department of Housing and Urban Development and the Department of Justice can be found) did not support Sabal Palm’s decision to sue for a declaratory judgment. Likely, this was due to the fact that the Court believed Fisher had more than met her burden to substantiate her disability and her need for the assistance animal.

 

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(3-5-14)

Your Introduction to the 2014 Community Association Legislation

This year’s legislative session begins on March 4, 2014 and ends on May 31, 2014. If you think all of the "bills" are drafted during the 60 day legislative session, think again. January 24, 2014 was the deadline for submitting requests for drafts of general bills, including requests for companion bills, and February 28, 2014 at 5:00 P.M. was the deadline for approving final drafts of general bills, including companion bills. After the conclusion of the legislative session, the Governor can veto the bill, do nothing (which allows the bill to become law on its effective date), or sign the bill into law (in which case the bill may spring into law, or will later become law on its effective date, as set out in the bill). If the bill was vetoed by the Governor, then a two-thirds vote in both the Florida Senate and House is required to override it. This year’s legislative session looks to be moderately busy with many proposed community association bills.

Senate Bill 798 (SB 798) includes many changes to existing law. Leasing amendments to a condominium declaration would not apply to those who vote against the amendment, but, obviously, would apply to those who vote in favor of it, and in contrast to today’s legislation, would be applicable to those who do not cast a vote at all. A condominium association would be granted the authority to enter the unit to inspect abandoned units and make certain repairs and even to turn on power to the unit to run the a/c to prevent mold. Provisions are included for the appointment of a receiver to collect rent.

Oddly, SB 798 provides that "a [condominium board] member may use e-mail as a means of communication but may not cast a vote on an association matter via e-mail." Likely, this provision was created with the best of intent, but hopefully will be deleted or tweaked to make better sense. At present, board members cannot vote by e-mail, but sometimes in a true post-casualty emergency, e-mail may be the viable means of communication for some board members. It is also patently obvious that everyone, even board members, may use e-mail to communicate. The question is whether such communication by the board majority constitutes a board meeting. Of course, SB 798 does not grapple with that important and very relevant issue. It’s early in the session, so let us all hope this provision gets eliminated, or edited, to be of greater value. On the brighter side, SB 798 also allows board members to vote via video conferencing rather than just on a speakerphone, as presently exists.

Clarification is added to foreclosure legislation affecting condominium, cooperative and homeowner associations to provide that a subsequent owner is jointly and severally liable with the previous owner for not only unpaid assessments, but also interest, late fees, reasonable costs and attorney fees incurred by the association incident to the collection process. Further clarification is provided to make clear that, in the event the association owned the unit, the subsequent owner may still have liability for the period prior to the association’s ownership.

Outgoing board members are required to relinquish all association records within 5 days. If not, civil penalties may be incurred. The deadline for financial reporting is increased form 60 days from the conclusion of the fiscal year, to 90 days along with an additional 30 days to provide the report to the owners.

Cooperatives and homeowner associations are granted new emergency powers and many of the bill’s legislative amendments to Chapter 718, Florida Statutes, the "Condominium Act", would also apply to Chapter 719, Florida Statutes, the "Cooperative Act."

House Bill 425 (HB 425) makes numerous clarifications to the Condominium Act to clarify many of its provisions apply to residential condominiums only. Obviously, the sponsor of HB 425 is asserting that the scheme for protections and safeguards of unit owners in residential condominiums is not necessary for unit owners of both commercial and condo-hotel ventures. Rather than carve out the parts of the Condominium Act that do not apply, the state would be far better served by a new chapter of laws to govern non-residential condominiums.

House Bill 7037 (HB 7037) addresses community association managers and would, in essence, allow managers to do many activities which are, by today’s standards, considered the practice of law. The type of activities that would not constitute the "unlicensed practice of law" would include, to name a few, calculating the number of votes to adopt an amendment (sometimes, a very complicated task requiring legal interpretation), negotiating contracts regardless of the type of contract, preparing pre-arbitration demands and preparing liens. Ultimately, given the overly broad provision of HB 7037, it could be interpreted to mean the manager is lawfully able to perform all tasks to ensure compliance with the community’s governing documents.

 

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(2-19-14)

"Burdens" Sure Can Be A Burden!

Eight years ago, the Fourth District Court of Appeals held that when a unit owner who was accused of failing to abide by the association’s covenants challenged the association by asserting that the association failed to follow its own covenants (which later formed the basis of the association’s lawsuit against the owner), the association had the burden to prove to the court that it had, in fact, complied with the requirements set out in its own declaration. Interestingly, the unit owner was not required to prove anything. Rather, all that the unit owner had to do was allege that the association failed to comply with its own declaration in the unit owner’s affirmative defenses, set out in the unit owner’s "answer" to the association’s "complaint."

In this lawsuit, McKenna v. Camino Real Village Association, Inc., 877 So. 2d 900 (Fla. 4th DCA 2004), the association filed a foreclosure action against a unit owner for unpaid assessments. Prior to filing the lawsuit, the association accelerated the remaining assessments due for the budget year. As an affirmative defense, the unit owner alleged that the association failed to comply with its own declaration by failing to provide prior notice to him, as required by the association’s declaration, that the association had accelerated the remaining assessments for the budget year. As a result of the association’s summary judgment motion, the trial court nevertheless granted its verdict in favor of the association.

Later, upon the unit owner’s appellate challenge, the Fourth District Court of Appeals reversed the trial court’s decision. The appellate court held that, once the unit owner filed the affirmative defense asserting the association failed to comply with its own declaration, the association then had the burden to prove that it complied with the requirements of its own declaration. As a result, the case was remanded back to the trial court for additional proceedings.

More recently, in July 2013, the Fourth District Court of Appeals re-visited the issue concerning an association’s burden of proof. In Boyle v. Hernando Beach South Property Owners Association, Inc., Case No. 5D12-2993, the homeowners’ association filed a lawsuit against a member alleging that the member failed to maintain his lot "in a neat, clean and orderly condition" as required by its declaration of covenants, by failing to properly landscape his lot and trim his trees. At summary judgment, the trial court granted an injunction in favor of the association that required the member to comply with the association’s covenants. The member appealed.

Summary judgment motions are ingrained in the rules governing civil procedure. Its purpose is to promote "judicial economy." In matters where there are no material facts in dispute, the party filing such a motion argues that they are entitled to judgment in their favor as a matter of law. Remember, a jury determines the facts, and the court applies the law.

In reviewing the trial court record, the appellate court noted that the affidavits provided by the association which, like the complaint, alleged the member failed to maintain his lot "in a neat, clean and orderly condition," failed to demonstrate how the member’s landscaping and trees were not properly maintained. In other words, the association failed to present evidence to the trial court to prove the member had actually failed to maintain his lot "in a neat, clean and orderly condition." Therefore, the appellate court reversed the trial court’s injunction and remanded (meaning sent it back) the case back to the trial court for further proceedings. It is important to recognize that, while the homeowner may have won a small battle, the actual war is still to be fought… at trial. While the association can learn from the appellate court’s decision by ensuring it submits the, up until now, lacking evidence as a part of its case in chief during trial. However, if, prior to filing the lawsuit, the association never clearly explained to the member how his landscaping and trees were not in compliance, then it’s likely the association is up the proverbial creek without a paddle and without a life-preserver, too.

 

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(2-5-14)

Save a Tree, Help the Environment and Start Saving Money Today!

Community associations are held hostage to rising prices. When prices go up, assessment increases soon follow. The recent postal stamp increases are no exception. The size of your association and amount of mailings during the year can really take a toll on the budget. Why not give your association a quick financial boost by sending electronic notices rather than paying for all those stamps? Electronic notices can be used for all sorts of official notices; however, there are a few prohibitions. In Chapter 718, governing condominium associations, and Chapter 719, governing cooperative associations, the word "electronic", including variations such as "electronically", appears 24 times, while in Chapter 720, only 17 times.

Both the Condominium and Cooperative Acts specifically authorize, legalize and legitimize bylaw provisions that provide for giving notice by electronic transmission whether as originally recorded or even by later amendment. The term "electronic transmission" can refer to a facsimile and, just as easily, to an e-mail or any other transmission that, well, simply put, transmits to the intended recipient electronically. (How is that for circular logic?) With that in mind, the clever, cost-conscious association should start to gather its members’ e-mail addresses and consents for the association’s use of e-mail for meeting notices.

E-mail can be utilized for notice of membership meetings, board meetings and even committee meetings. It can be used for election notices, too. In order for an association to notice by e-mail, the association’s bylaws must provide for providing meeting notices electronically and each member must specifically consent, in advance. Take a look at your association’s bylaws to see if your association is already authorized to start gathering its members’ consents to receive e-mail notices. If it is not already there, then talk to your association’s lawyer about amending the bylaws to include this simple cost saving solution and protection against rising postal costs.

Condominium, homeowner and cooperative associations are responsible to maintain the e-mail addresses and facsimile numbers of unit owners consenting to receive notice by electronic transmission.

The e-mail addresses and facsimile numbers of the association’s members are not accessible to the association’s other members if the member whose e-mail address or facsimile address did not consent to receive notice by electronic transmission. The association would be advised to obtain such consent in writing.

The Condominium, Homeowner and Cooperative Association Acts provide that an association may print and distribute to parcel owners a directory containing the name, parcel address and telephone number of each parcel owner and that any owner can exclude his or her telephone number from the directory by so requesting, in writing, to the association. Oddly, e-mail addresses are not mentioned which can be remedied through a bylaw amendment that specifically provides that the directory can include e-mail addresses of those members who consent to receive their association notices electronically unless advised, in writing, by the owner, to the contrary.

On the bright side, the association is not liable for an inadvertent disclosure of the e-mail address or facsimile number for receiving electronic transmission of notices.

Neither facsimile nor e-mail can be used as a method of giving notice of a recall meeting. In addition, electronic notices cannot be used by condominium associations that previously voted to forego retrofitting, when the unit owners next consider the issue.

To start your savings, check your association’s bylaws for the required authorization and start gathering those e-mail addresses. It’s good for the environment, too!

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(1-22-14)

A Call to Action ... The Latest Wrinkle in Lender Assessment Liability

If you live in either Monroe, Miami-Dade, Broward, Palm Beach, Martin, St. Lucie, Indian River, Okeechobee or Highlands county, then you will want to know about the January 3, 2014 decision entered by the United States District Court for the Southern District of Florida (the "Court"). For that matter, if you live in an association somewhere in the great State of Florida, then you still need to know about this case: United States v. Forest Hill Condo Association and Forest Hill Property Owners’ Association, where the the Court examined the financial obligation of a foreclosing first mortgagee to a condominium association and homeowners’ association (the "POA") when the unit owner not only defaulted on their mortgage but also failed to pay assessments. The dispute came about when after taking title as a result of the lender’s foreclosure, the U.S. Department of Housing and Urban Development ("HUD"), as a successor and assignee to the foreclosing lender, requested an estoppel from both of the associations

Both associations claimed the HUD was liable for all unpaid assessments, together with other fees and charges, including attorney’s fees, levied against the unit in the twelve-month period prior to foreclosure. HUD, on the other hand, contended it was entitled to the protection of a statutorily-created "safe harbor" which limits its liability. It actually fared better, at least as to how much it owed the condominium association for back assessments.

The Court examined whether interest, late fees, collection costs and attorney’s fees were properly included in both associations’ estoppels. The Court concluded that the answer was "no". The Court reasoned that since assessments are common expenses shared amongst all of the owners and that since the interest, late fees, collection costs and attorney’s fees are assessments levied against an individual as opposed to all of the owners, such individual assessments are not collectable under the "safe harbor" laws.

While HUD was found liable to the POA for back assessments, astoundingly, and to the extreme detriment of the condominium association, the Court took an unexpected left turn when it held that HUD had no liability to the condominium association for any of the past due unpaid assessments that accrued prior to taking title. In reaching this decision, the Court also looked to the condominium association’s declaration and noted that its clear provisions provided that a foreclosing lender had no assessment liability whatsoever, as compared against the legislative requirements set out in section 718.116, Florida Statutes, referred to as the "safe harbor." The term "safe harbor" refers to the foreclosing lender’s liability to the association for back assessments where the lender, as the prior first mortgagee, is responsible to pay the association the lesser of 12 months’ back assessments or one percent of the initial mortgage. The Court also noted that the condominium’s declaration made it clear that, where permitted, the provisions of the declaration were paramount to the provisions of Chapter 718, Florida Statutes, commonly referred to as the Condominium Act.

What the Court did not discuss was that the initial safe harbor statute contained in the Condominium Act provided that it applied to first mortgages recorded after April 1, 1992. While this language was later removed, it was clear that the safe harbor provisions applied if the owner’s mortgage was entered into after this date. These safe harbor provisions create a procedural regime where lenders can estimate their financial liability in the event of foreclosure which, at least as to this condominium association, some might argue, the court completely ignored!

It will be interesting to see whether other courts follow along and apply this case’s holding. With regard to this decision’s precedential value, based on a legal doctrine called "stare decisis", the decision of the Southern District Court in this case is merely persuasive authority, meaning that other courts do not have to follow the decision of this case but may take it into consideration. With the exception of the U.S. Supreme Court, no state court is bound by a federal court’s determination regarding state law. In fact, federal courts must follow state courts when analyzing state laws as state courts are the bodies charged with interpreting and applying state laws.

This latest case should be a call to action for all community association board members to contact their legislators and insist that they clarify the safe harbor provisions in this year’s legislation so that the safe harbor laws apply to all lenders!

 

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(1-8-14)

E-Mails and E-Mail Addresses

Who is entitled to the e-mail addresses of your association’s members? Are e-mails sent between board members part of an association’s official records? What about e-mails sent by a board member to the manager?

Only the e-mail addresses of unit owners who have either consented to receive notice by e-mail or have consented in writing to the disclosure of their e-mail addresses are subject to review during an official record inspection. Section 718.111(12), Florida Statutes, provides, with regard to unit owner e-mail addresses, that "[t]he association shall also maintain the electronic mailing addresses… of unit owners consenting to receive notice by electronic transmission. The electronic mailing addresses… are not accessible to unit owners if consent to receive notice by electronic transmission is not provided in accordance with [this subsection]." This topic was discussed in Cohen v. Harbour House (Bal Harbour) Condominium Association, Inc., Arb. Case No. 2012-02-3139 (Summary Final Order / Lang / June 29, 2012).

In the Cohen case, a unit owner requested a list of all of the e-mail addresses of the members, however did not receive such a list. The unit owner alleged that she was improperly denied the e-mail addresses. However, it was discovered that the association did not have consent from any members to use their e-mail for the purposes of receiving official notices nor did the association have written consent to disclose the protected information from any member. Therefore, the arbitrator held that "[b]ecause, under the statute, no unit owner has submitted his or her email address for notice requirements or consented in writing to disclosure of his or her email address, the [a]ssociation did not improperly deny access by [the unit owner] to its list of email addresses."

In today’s instant world, e-mail allows us to express our thoughts at anytime, anywhere. It is so convenient that it is unavoidable for board members to use it to discuss association business. As the official records of condominium, homeowner and cooperative associations are subject to inspection with limited exception, the question often asked is whether e-mails, including e-mails between board members and between one or more board members and the association’s manager, constitute part of the association’s official records that are subject to inspection by the members.

Several categories of records, while still constituting a part of the official records, are not subject to a member’s inspection request. For example, attorney-client privileged correspondence, medical records, information obtained by an association in connection with the approval of the lease, sale or other transfer of a unit and social security numbers, just to name a few, are not subject to a member’s inspection request but still constitute a part of the association’s official records.

On March 6 2002, the then Chief Assistant General Counsel of the Department of Business and Professional Regulation ("DBPR") issued an opinion which provided that "[c]ondominium owners do have the right to inspect e-mail correspondences between the board of directors and the property manager as long as the correspondence is related to the operation of the association and does not fall within the… statutorily protected exceptions… [The DBPR does not have] regulations expressly requiring archiving e-mails, but… if the e-mail correspondence relates to the operation of the association property, it is required to be maintained by the association, whether on paper or electronically, under chapter 718, Florida Statutes."

In Humphrey v. Carriage Park Condominium Association, Inc., Arb. Case No. 2008-04-0230 (Final Order / Campbell / March 30, 2009), an arbitrator of the Division of Florida Condominiums, Timeshares, and Mobile Homes held that "…e-mails… existing… on the personal computers of individual directors… are not official records of the association… Even if directors communicate among themselves by e-mail strings or chains, about the operation of the association, the status of the electronic communication on their personal computer would not change. Similarly, an e-mail to an individual director or to all directors as a group, addressed only to their personal computers, is not written communication to the association." The arbitrator reasoned that "[t]his must be so because there is no obligation to turn on [the] personal computer with any regularity, or to open and read emails before deleting them."

Simply stated, if one was to rely on the guidance cited herein, e-mails solely between board members, even a board majority, are not part of the official records, e-mails between the board and the manager are part of the official records and unit owner e-mail addresses are only subject to inspection where a unit owner has either consented to receive notice by e-mail or has consented in writing to the disclosure of his/her e-mail address. That having been said, it is in my opinion that e-mail communications that involve a board majority are still subject to the board meeting notice requirements already required by Chapter 718, Florida Statutes, more commonly known as the "Condominium Act."

 

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Jeffrey Rembaum, Esq. is a community association lawyer with the law firm Kaye Bender Rembaum, in its Palm Beach Gardens office.  His law practice consists of representing condominium, homeowners, and cooperative associations, developers and unit owners throughout Florida.  He can be reached by email at JRembaum@KBRLegal.com or by calling 561-241-4462 or toll free: 1-800-974-0680.

 

 

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