Reserve funding for certain common element items is required for community associations under Florida law. Specifically, condominium associations must fund reserves for roof replacement, building painting, pavement resurfacing and any other item that has a maintenance expense or replacement cost exceeding $10,000. Fla. Stat. § 718.112(2)(f). For homeowners’ associations, if the developer initially established reserve […]
The Role of the Community Association in Neighbor vs Neighbor Disputes
Neighbor vs neighbor disputes are frequently a part of life in community associations. Common examples may include an owner allowing his dog to use his neighbor’s yard or an owner dumping trash on his neighbor’s yard. Although they may initially be trivial, these neighbor vs neighbor disputes can escalate into bitter personal rivalries. While many […]
Through A Condo Owner’s Looking Glass – A Shade Of Green – Or Is That Gray?
In an action applying Florida law, a federal district judge ruled in favor of a Directors and Officers liability insurer, finding that the “insured versus insured” exclusion applied to bar both a defense and coverage of an underlying action. In the underlying action, two condominium owners – one of which was a past condominium president […]
Selective Enforcement and Violations When Installing Hardwood Floors (FL)
Earlier this year the Third District Court of Appeals narrowed two significant unit owner defenses to enforcement actions, selective enforcement and waiver/ estoppel when it decided Laguna Tropical, a Condominium Association, Inc. v. Barnave, Case No. 3D16–1531 (Fla. 3d DCA January 25, 2017). For more on the doctrine of Selective Enforcement, please review our October […]
What Community Associations Should Know About the Fair Housing Act
Community association board members and managers are often so preoccupied ensuring compliance with state and local laws that they can sometimes overlook controlling federal law. Multiple federal statutory acts can apply to community associations in any given situation and overlooking those federal laws can have costly consequences. One such area of federal law that governs […]
Community Association Remedies When Tenants Ignore Rent Demands (FL)
After the crash of the real estate market and the subsequent foreclosure crisis, many homeowners who found themselves with properties under water capitalized on the ability to rent those properties while not paying their mortgage or community assessments. Florida’s legislature responded by adopting Florida Statute §718.116(11), Florida Statute §719.108(10), and Florida Statute §720.3085(8) giving community […]
Construction Defects and Insurance Coverage: When Is the Duty to Defend Triggered?
In Florida, an insurance company may have a duty to defend and/or indemnify its insured. The insurance company’s duty to defend its insured (as in defending the insured in a lawsuit) is broader than its duty to indemnify (as in paying for damages caused by the insured). The duty to defend is separate and apart […]
Fining Procedures Confound Condominium & Cooperative Boards in Florida
Question: Our association tried to fine an owner who violated our rules, but decided the process was too complicated. Can you provide a step-by-step outline of how fines are issued and collected? Read the Q&A…………..
When Does the Americans With Disabilities Act Apply to Community Associations?
Community association board members and managers are often so preoccupied ensuring compliance with state and local laws that they can sometimes overlook controlling federal law. Multiple federal statutory acts can apply to community associations in any given situation and overlooking those federal laws can have costly consequences. One such area of federal law that might […]
Selective Enforcement: Common Sense Prevails
As often happens when a community association enforces its covenants and rules and regulations against an owner, the owner responds to the association saying, “The house down the street is in violation with the rules and regulations, too! Why aren’t you sending them a demand letter?” When this happens, the owner is invoking the defense […]
Two’s Company, but Three’s a Crowd: A Third Parties Right to Intervene in a Foreclosure Lawsuit
Are subsequent title holders who obtain an interest in real property during the pendency of a foreclosure lawsuit where a lis pendens has been properly recorded (referred to as a “Purchaser Pendente Lite”), entitled to join in the lawsuit to protect that interest? In Bonafide Properties v. Wells Fargo Bank, N.A., 198 So.3d 694 (2d […]
Restrictive Endorsement (FL)
Restrictive endorsements when coupled with payment are still applicable to associations. As many may remember, The Florida Legislature amended Florida Statutes §718.116 and §720.3085 to include language relating to the applicability of restrictive endorsements, designations or instruction accompanying payments made for delinquent assessments. Specifically, Florida Statutes §718.116(3) and §720.3085(3)(b) state as follows: Read the […]
How to Avoid Becoming a Money Laundry
Boards have tools to keep unsavory buyers out of their buildings. In response to an influx of Limited Liability Companies – also known as LLC’s, or shell companies – paying cash for pricey apartments in New York City, the U.S. Treasury Department passed a regulation requiring title companies to divulge the names of individuals who […]
Condominiums May Still Need to Install Engineered Life Safety System After Opting Out of Fire Sprinkler Retrofit
As our regular readers are aware from our previous posts on the subject, there are many questions Florida condominium associations face in determining whether their buildings must be retrofitted with a fire sprinkler system or Engineered Life Safety System (“ELSS”). While many Florida condominium associations voted to opt-out of installing fire sprinkler systems, there may […]
Limitations on Community Association Approval or Denial of Service Member Rental Applications (FL)
Effective July 1, 2016, § 83.683, Florida Statutes, requires landlords, condominium associations, cooperative associations and homeowners associations to process rental applications submitted by service members within seven days of submission. Within that seven day period, the landlord or association must notify the service member in writing of an application approval or denial and, if denied, […]
Court Narrows Defenses in Covenant Enforcement Action (FL)
When faced with an enforcement action by a community association, owners often argue the association is selectively enforcing the covenants. Some also argue the association waived its right to enforce because the association knew about the violation for a substantial period of time, but failed to timely enforce against them or other owners. Recently, the […]
The Impact of Legalization of Medical Marijuana on Your Florida Community Association
This past November, Amendment 2 legalizing the use of medical marijuana was approved by Florida voters. The rules governing medical marijuana have not yet been passed by the State Legislature and the Department of Health; however, it is likely to assume that situations regarding the use of this substance within our community associations will soon […]
Association Deficits Don’t Excuse Developer From Funding HOA Reserves
Developers must establish and fund reserve accounts for their projects during the initial years while they retain control of the homeowner associations. However, there are various legal and bookkeeping maneuvers that they often employ to attempt to avoid or diminish their contributions for reserves, which are intended for use for major future maintenance expenditures. […]
Turnover: Transitional Considerations for the HOA
Part one of this blog discussed turnover in its initial stages: the events that trigger turnover and the files and papers the developer is required to produce to the homeowners’ association at the time of turnover. Once an association has completed those steps, the board must then turn to critical business and make crucial decisions […]
How to Get the Vote
Your association’s board has worked for six months to amend and restate the association’s governing documents, including the declaration, articles of incorporation, bylaws, and even the rules and regulations. The board has met with the association’s lawyer on several occasions, reviewed and provided comments on multiple drafts, and even arranged for multiple meetings with the […]
Appeals court decides Centex must pay into HOA reserve (FL)
The 5th District Court of Appeal recently decided in favor of a pair of homeowners representing themselves in a case against their homeowner association at Sullivan Ranch. According to a report by the Orlando Sentinel, Sara MacKenzie, who had only practiced law for a short time after successfully earning her law degree in the 1980s, […]
Community Associations and the Second Amendment
The Second Amendment to the United States’ Constitution guarantees individuals the right to keep and bear arms. The Florida constitution contains a similar guarantee. With few exceptions, Florida law allows licensed individuals to carry concealed firearms in most public locations. Based on these constitutional and statutory rights under U.S. and Florida law, many owners residing […]
Planning for Special Needs Children
Many families in our community have children or loved ones with developmental disabilities or special needs. Families often assume that they can continue to care for their loved ones in perpetuity. The reality is that once a child turns 18 years old, that child becomes an adult. Often, parents will continue to be their child’s […]
What Condominium Owners Should Know About Developer Turnover of the Association: Part II
During the construction and initial sales of units within a condominium association, the developer will manage the association’s operations and governance. This means the developer controls the association’s board of directors. Once the development is constructed and a certain percentage of units are sold, then turnover of control of the association to the unit owners […]
What Impact Will Medical Marijuana Amendment to Florida’s Constitution Have on Community Associations?
Many states have placed the legalization of medical marijuana on their ballots in recent years and Florida is no different. A measure legalizing medical marijuana failed in Florida in 2014, gaining only fifty-eight (58%) percent of the vote. However, this past November, Florida voters overwhelmingly approved Amendment 2 which legalized medical marijuana. Seventy-one (71%) percent […]
What Condominium Owners Should Know About Developer Turnover of the Association: Part I
During the construction and initial sales of units within a condominium association, the developer will manage the association’s operations and governance. This means the developer controls the association’s board of directors. Once the development is constructed and a certain percentage of the units are sold, then turnover of control of the association to the unit […]
Turnover: An Important But Often Misunderstood Event for Homeowners’ Associations
One of the most critical events a homeowners’ association will face is the “transition” or “turnover” of the association from the developer of the community to the homeowners of the community. However, many homeowners and purchasers may be unaware of what the process of turnover entails, or even what turnover of the community really means. […]
Florida Fourth DCA Adopts Strict Compliance Standard when Joining Homeowner Associations to Foreclosure Actions
On November 23, 2016, the Florida Fourth District Court of Appeals issued an opinion in a case concerning a foreclosing lender’s obligation to pay homeowner association assessments in Federal National Mortgage Association v. Mirabella at Mirasol Homeowner’s Association, Inc., Case No. 4015-4792. Fannie Mae obtained title to the property through a foreclosure. The homeowner association […]
Can Condo or HOA Officers be elected by secret ballot?
In general, the members (or owners) of the community vote for the board members, but the board members decide who will fill the officer positions: President, VP, Treasurer and Secretary, plus whatever other Officer Positions are defined by your community documents. Voting for Officers is commonly done without secret ballots and via a fairly informal […]
Disputed Condo Election Offers Important Lessons for Association Boards
The 2016 presidential election was extremely divisive and contentious, but for some South Floridians the political machinations taking place in the election of their community association’s boards of directors can be every bit as controversial. Allegations of questionable or even downright fraudulent tactics by candidates in these annual association elections are not entirely uncommon. When […]
Where Do Condo, Homeowner Associations Stand on Emotional Support Animals?
Picture, if you will, a young man named John. He lives in your association-controlled community. John bravely served in the U.S. Army and received the Distinguished Service Cross for his extraordinary heroism in active duty. Upon John’s return home, he finds himself traumatized by his experiences at war. His trauma causes him to suffer from […]
South Florida Contents Restoration
Every single day, a natural disaster or other catastrophic event occurs somewhere in America, crippling businesses and homeowners alike. Floods and broken water pipes can wreak havoc to floors, walls, ceilings, carpeting, and to all items within affected rooms. Fires can leave a great amount of smoke damage to entire structures. The smoke damage from […]
Court Decision Clarifies HOA Developer Reserve Funding Obligations (FL)
Last month, Florida’s Fifth District Court of Appeals issued yet another opinion in Mackenzie v. Centex Homes, by Centex Real Estate Corp., Case No. 5D16-1254 (Fla. 5th DCA, December 22, 2016) reinforcing that a developer is obligated to contribute money to an association’s statutory reserve accounts prior to turnover, even when the developer has chosen […]
Good News for HOAs: Courts Clarify Deadline for Governing Document Lawsuits (FL)
Homeowner association board members and their attorneys can breathe easier now that two Florida appeals courts have clarified the deadline for challenging an association’s governing documents. Through an affirmative defense based on time limitations, associations should see quick, concise and more cost-effective resolution of lawsuits brought by condominium owners and homeowners who question the validity […]
Court finds law for selling entire condominium projects is not retroactive (FL)
The 3rd District Court of Appeal recently sided with minority owners by ruling that Florida’s statute law governing the sale of condominium projects does not apply to properties that predate Florida’s 2007 amendment to its condominium statute. The Daily Business Review reported on Nov. 22 that this news affects many associations in particular The Tropicana […]
How Condominium Associations Can Deal with Airbnb Rentals (FL)
Online third-party rentals have become quite popular in recent years. Many unit owners see these companies as an opportunity to bring in additional income by renting out their unit on a short-term basis, sometimes even just for a weekend. Most condominium communities do not want short-term rentals of units. Short-term rentals can reduce property values, […]
Bankruptcy and Condo Associations
Bankruptcy is a last resort for people who find themselves overwhelmed with bills and creditors. When a condo owner in an association files for bankruptcy, the HOA may fear they’ll never see that money. The truth, however, is a bit more complicated than black and white. Learn a bit about bankruptcy laws in Florida, so […]
What Information Is My Community Association Required to Provide in Relation to Sales of Units?
During transfers of properties in condominiums or other planned communities, community associations are frequently contacted by prospective buyers, lenders or realtors with requests for information pertinent to the transfer. Often, these requests seek detailed information about a broad range of topics related to the condition and operation of the community. Read the article…………..
Industry Alert – Florida Supreme Court Rules on Bartram v. US Bank, NA.
The Florida Supreme Court issued the much anticipated opinion in Bartram v. U.S. Bank, N.A on November 3, 2016, providing long awaited guidance as to the statute of limitations on successive mortgage foreclosure actions, post dismissal. The Court answered a very limited certified question which limited the scope of their opinion. Essentially affirming the decision […]
Retroactive Application Statue of Amendments: Does Your Declaration Have “Kaufman” Language? (FL)
Community association lawyers are often presented inquiries from their clients as to whether laws newly adopted by the Florida legislature apply to their governing documents, especially when the new law is contrary to their declaration’s existing provisions. A similar question was recently asked and answered by Florida’s Third District Court of Appeal in the case […]
Do You Need a License for That? (FL)
We all know that you need a license to be a CAM (Community Association Manager). A license is also required for most electrical, roofing and plumbing work as well. Myfloridalicense.com is a great source to learn more about what work requires and does not require a license. Here is a great chart with some examples. […]
How to Avoid Burnout for Community Association Managers
It’s 2016, a week away from a new year and it seems that burnout has become a fact of life for community association managers. It is also a real possibility for dedicated Board members. Boards and managers are challenged by rudeness, confrontational and adversarial communications, even menacing behavior. And all the good you do is […]
Recent Changes to the Florida Statutes Governing Homeowners Associations
Does your homeowners association require nominations from the floor for an election to the board of directors? Recent changes to the Florida Statutes governing homeowners associations have given some associations the right to forego accepting nominations from the floor during an election of board members. However, your association should analyze its governing documents for compliance […]
Court Ruling Puts Condo Buyouts At Risk (FL)
As Florida developers adapt to the lack of suitable development sites, some are turning their focus to condominium communities that were built decades ago for middle-income working families and retirees that are now located on what would otherwise be prime development sites. Read the article……………
Favorable Ruling for Condo Associations in Second DCA (FL)
Recently, in Ventana Condominium Ass’n, Inc. v. Chancey Design Partnership, Inc., et al., 2016 WL 4259999 (Fla. 2d DCA), the Second District Court of Appeal held that the Plaintiff, Ventana Condominium Association, Inc. (the “Ass’n”), was not the successor in interest to the prior owner of Ventana Condos, Ventana Tampa, LLC (the “Developer”), and reversed […]
Rare Safe Harbor Victory for Homeowner Associations (FL)
In Federal National Mtg. Ass’n. v. Mirabella at Mirasol HOA, Inc., Case No. 4D 15-4792 (Fla. 4th DCA, November 23, 2016), Florida’s Fourth District Court of Appeals relied on specific language in the Homeowner Association Acts’ safe harbor provision to rule in favor of a homeowner association over Federal National Mortgage Association (“FNMA”) in a […]
Key Considerations in Hiring an Employee Subject to a Non-Compete: Part II
As discussed in Part I of this blog series, some of the most qualified candidates for employment are often current or former employees of competitors in your industry. Non-compete agreements are helpful to employers who wish to control and limit the competitive activities that an employee may engage in after his or her employment ends. […]
Santa Claus is Back in Town and Make Sure He Pays This Time
But let’s think of Santa, not just as a bringer of gifts, but as a user of property rights. After all, he lands on your roof. Get any permission for that, Mr. Claus? What about the wear and tear to the roof? If a typical adult male reindeer weighs 350 – 400 pounds, eight adult […]
Associations Rejoice: Florida Appellate Courts Breathe New Life into Controlling Documents for Community Associations
It has been commonplace in Florida for condominium owners or homeowners to move into a community and then challenge the propriety or validity of the governing documents which, by virtue of purchasing in the community, they agreed to be bound by at the closing table. It wasn’t until late 2014 and again in 2015 that […]