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Florida Legislature to Pass Law Prohibiting Associations From Charging Estoppel Fees

Florida Legislature to Pass Law Prohibiting Associations From Charging Estoppel Fees

  • Posted: Jan 02, 2024
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YOUR ASSESSMENTS ARE ABOUT TO GO UP AGAIN

Act Now Before It IS Too Late!

Of all the subjects I never would have thought I would be writing to you about, it is this: the Florida Legislature is dangerously close to passing legislation that prohibits a Florida community association from charging a fee for the preparation and delivery of an estoppel certificate!!! The text of Senate Bill 278, along with its companion House Bill 979, fully prohibits condominium and homeowners’ associations from being able to charge the requesting party a fee for the preparation of the estoppel certificate. But, however, the professional who assists the association prepare and issue the estoppel, such as the management company and attorney, will now charge the association and not the party who requested the estoppel. This year’s legislative session starts very early, on January 9th. Your legislators need to hear from you that you do not want them to support these bills because they will cause financial harm to your association.

Why should community associations be stuck with the bill for the estoppel? This bill will fully shift the financial responsibility for the estoppel from the buyer or seller right on over to the association. In other words, the association still has to pay its agents, be it the management company or attorney, etc., to prepare the estoppel. At times it takes a lot of work, coordination and effort to timely issue the estoppel, let alone all of the liability that comes along with its issuance.

Since when in the United States of America can the legislature require any of us work for free? Well, it may sound like that because the buyer or seller will not have to pay for the estoppel but we all know in reality, nothing is free. This draconian fee shifting legislation could in a great many cases, if not all, act to increase every homeowner and condominium unit owner’s assessments who live in the community. Preparing estoppels can take significant time, most, especially, if there is a long history of nonpayment associated with the account. Also, existing violations must be taken into account in the estoppel certificate, etc., If the math is wrong, the issuer of the estoppel could end being financially responsible for the shortage, and they could be subject to, amongst others, Federal Fair Debt Collection Practice Act claims due to a mistake. Therefore, there is significant time involved in gathering all of this information, ensuring it is correct, and then issuing the estoppel within the required 10-day business day legislative timeframe. To make a long story short, management companies will have to increase their fees charged to the associations to offset their inability to charge the fee to the requesting party for the estoppel, and thus, every member of your association will have to pay more.

As to any rumors of rare abuse by those charging excessive estoppel fees, there are already safeguards built into the existing legislation which provide for summary legal proceedings that can be brought to compel compliance with the existing estoppel legislation and its financial cap. It even provides for prevailing party attorneys fees.

If you hear that objections to this legislation from management companies and attorneys are because they do not want to lose revenue such is not the case at all. It’s really quite simple: This legislation will fully shift the responsibility for the estoppel fees, from that of the requesting party, to all the owners that already live in the association’s community and who have nothing to do with the transaction at all.

As this is holiday season, if this passes into law, what a horrible gift that would be. To prevent this legislation from becoming law, please reach out to your legislators and let them know that you object to Senate Bill 278 and House bill 979.

HERE is a link to the SB 278.


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Join KBR for “Covenant Enforcement for HOAs and Condominiums”. Managers will receive one CEU in the OPP category. Dec. 13th at 11:30am, live on Zoom.

Join KBR for “Covenant Enforcement for HOAs and Condominiums”. Managers will receive one CEU in the OPP category. Dec. 13th at 11:30am, live on Zoom.

  • Posted: Dec 13, 2023
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Join KBR for “Covenant Enforcement for HOAs and Condominiums”. Managers will receive one CEU in the OPP category. Dec. 13th at 11:30am, live on Zoom.

Register NOW.

Covenant Enforcement for HOAs and Condominiums

Dec 13, 2023 11:30 AM 
Description
Course #: 9630145
Instructor: Kerstin Henze, Esq.
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Condominium Board Member Certification by KBR Legal

Condominium Board Member Certification by KBR Legal

  • Posted: Nov 29, 2023
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Condominium Board Member Certification

Nov 30, 2023 02:00 PM

Course # 9630075

Instructor: Kerstin Henze, Esq. of KBR Legal

This webinar covers the essentials of condominium board membership, updated regularly to remain current with legislative amendments to Florida’s Condominium Act. In addition, this webinar satisfies Florida’s requirement for new condominium board members. It also serves as an excellent refresher course. Licensed CAMS will receive two (2) CE credits as IFM or ELE.

Register NOW: 

https://us02web.zoom.us/webinar/register/WN_-UDSvuIFSA6z1uRsnF-_ww#/registration

 

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VIDEO: Community Association Elections | Q&A Webinar | Kaye Bender Rembaum

VIDEO: Community Association Elections | Q&A Webinar | Kaye Bender Rembaum

  • Posted: Nov 14, 2023
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Community Association Elections | Q&A Follow-up Video Webinar | Kaye Bender Rembaum

KBR Attorney Allison L. Hertz returns to answer some of the audience questions from her CE credit Elections webinar. This video is for informational purposes only and is not to be considered as legal advice.

 

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Date Change: >Thursday, October 26 < Condominium Board Member Certification at theTamarac Community Center

Date Change: >Thursday, October 26 < Condominium Board Member Certification at theTamarac Community Center

  • Posted: Oct 23, 2023
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Condominium Board Member Certification

The Condominium Association Board Member Certification Seminar | with Kaye Bender Rembaum

Thursday, October 26 · 5 – 7pm EDT

 Register NOW!

Tamarac Community Center

8601 West Commercial Boulevard Tamarac, FL 33351

The essentials of condo board membership, and is updated regularly to remain current with Florida legislative amendments. In addition, this class satisfies Florida’s requirement for new condo board members. It also serves as an excellent refresher course. Light refreshments served.

Licensed CAMS will receive two (2) CEs in the IFM category. Course # 9626451.

Andrew B. Black, Esq., BCS of Kaye Bender Rembaum to be the instructor.

Note: This was previously scheduled for Oct. 24, 2023. If you are already registered, there is nothing further you must do.

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Webinar: RSVP for next week’s ‘Association Leadership’: Open Forum Q&A KBR and Castle Group

Webinar: RSVP for next week’s ‘Association Leadership’: Open Forum Q&A KBR and Castle Group

  • Posted: Oct 16, 2023
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Webinar will be moderated by Craig Vaughan, Castle Group CFO. He will be joined by Jeffrey A. Rembaum, Esq. Attorney and Board Certified Specialist in Condominium and Planned Development Law, and Attorney Alan Schwartzseid, Esq. with Kaye Bender Rembaum, P.L.
Wednesday, October 18 2023 | 12 Noon to 1:00pm Est.
Presented by Castle Group | Season 5, Episode 1 of ‘Association Leadership’
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Webinar: Upgrading from Self-Managed to Pro Management | Oct. 19 at 4pm Est

Webinar: Upgrading from Self-Managed to Pro Management | Oct. 19 at 4pm Est

  • Posted: Oct 16, 2023
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Webinar: Upgrading from Self-Managed to Pro Management | Oct. 19 at 4pm Est

 

Oct 19, 2023 04:00 PM in 
AKAM will be joined by Lisa A. Magill, Esq., Attorney at Kaye Bender Rembaum and Chapter Delegate Member of CAI Florida Legislative Alliance, to discuss the value-add of transitioning a self-managed community to professional management.
Date: Thursday, October 19, 2023 Time: 4pm – 5pm Please complete the registration form below to confirm your attendance.
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Legal Morsel by Robert Kaye: “Federal Court Identifies Potential Collection Issue for Community Associations in Florida”.

Legal Morsel by Robert Kaye: “Federal Court Identifies Potential Collection Issue for Community Associations in Florida”.

Federal Court Identifies Potential Collection Issue for Community Associations in Florida

Community association operations rely upon the timely and full payment of all assessments by all of the owners. One of the mechanisms that Florida law provides to put associations in a stronger position when an owner becomes delinquent is the “secured interest” of the association in the unpaid assessments by way of its ongoing lien against the unit or lot for the unpaid assessments. This secured interest puts the claim of the association at a higher priority than most other claims, other than a first mortgage or unpaid property taxes. However, a recent decision in the United States Bankruptcy Court for the Southern District of Florida, In re: Adam, Case No.: 22-10140-MAM, September 23, 2022, has cast a potential cloud on that secured interest.

In the In re Adam case, the Association previously obtained a judgment of foreclosure for over $76,000, which was considered as a secured interest by the Court.  The Association was also claiming an additional $36,558 which came due after the judgment was entered.  The owners were asking the Court to decide that the $36,000 was not secured and therefore uncollectible in the bankruptcy (or at least not fully collectible).

In deciding whether certain association claims were secured and collectible in the bankruptcy setting, the Court undertook an analysis of Florida law on the subject.  The Court noted that both the Florida Condominium Act (Chapter 718 F.S.) and the Homeowner’s Association Act (Chapter 720 F.S.) currently contain express provisions that identify that the lien of the association is effective from the original recording of the declaration (with the added requirement in HOA’s that the declaration specifically expresses this lien right).  However, the Court also points out that the Condominium Act was amended in 1992 to provide for this effective date.  (The Homeowner’s Association Act was amended to provide for it in 2008.)  Prior to these amendments, these Statutes provided for the effective date of the lien to be when it was recorded in the public records of the county.  The analysis of the Court required it to consider whether the current version of the Statute applies to the situation or whether an earlier version of the Statute is the controlling authority.  (This case involved a condominium so only the Condominium Act was considered in the decision.)

To make that determination, the Court applied the principles of the seminal case of Kaufman v. Shere, 347 So.2d 627 (Fla. 3d DCA 1977), which require declarations to contain the specific phrase “as amended from time to time” when identifying the Statute that governs the documents in order for the current version of the Statute to apply.  This is because Statutes are not retroactive in their application unless the legislature expressly makes them so in the Statute itself.  Both the U.S. and Florida Constitutions do not allow for the State to make a law that infringes upon the vested rights in an existing contract (which would be the declaration).  As a result, the contract (declaration) would need to have the specific “as amended from time to time” language (often called “Kaufman” language) to automatically incorporate changes to the Statute that is not otherwise retroactive.

When the Court reviewed the governing documents, it noted that they were from 1987 and did not have the Kaufman language.  As such, the Court held that the provisions of the declaration were the same as the Statute in 1987, which provided that the lien was effective only upon being recorded in the public records of the county.  Since the Association did not file another lien for the amount being claimed subsequent to the foreclosure judgment, the Court concluded that this portion was not secured.  In the bankruptcy setting, this meant that the Association would likely be unable to recover most, if not all of this claim from the Debtors, Mr. and Ms. Adam.

While this issue may be most relevant to associations when dealing with a case in bankruptcy, it is possible that it could also be raised in state court foreclosure cases under certain circumstances.  It is also important to note that this Bankruptcy Court did not include a significant issue in the analysis regarding the Statute at issue, that being whether or not the statutory provision was “substantive” or “procedural”, as those terms apply to this situation, which could have led to a different result.  (This portion of the legal analysis is quite technical and beyond the scope of this article.)

For communities whose declarations were recorded prior to the statutory changes described above, the first step in protecting the interests of the association is to review the documents to determine whether Kaufman language is already in them.  If not, the board may wish to consider proposing an amendment to the owners to change the documents to include this language, if not for the entire declaration, then at least for the timing of the effectiveness of the lien of the association.  Having qualified legal counsel review these issues in the documents is a strong business practice.

 

 


Kaye Bender Rembaum is a full service commercial law firm devoted to the representation of community associations throughout Florida. Under the direction of attorneys Robert L. Kaye, Esq., Michael S. Bender, Esq., and Jeffrey A. Rembaum, Esq. Kaye Bender Rembaum is dedicated to providing clients with an unparalleled level of personalized and professional service regardless of their size and takes into account their individual needs and financial concerns. Most of our attorneys are Board Certified in Condominium and Planned Development Law. The associates of Kaye Bender Rembaum establish relationships with clients to understand their needs and goals. Kaye Bender Rembaum assists clients in all matters of Association representation including, but not limited to, collection of assessments, contract negotiation, covenant review and amendment, covenant enforcement and construction defect claims. Kaye Bender Rembaum also keeps clients up-to-date on new developments in the law and how they are personally affected by them. Kaye Bender Rembaum provides prompt, effective, high quality, cost-efficient and understandable legal advice and services to a diverse client base. Associates strive to help clients operate and administer their communities better and to educate them on their responsibilities and duties under Florida law and their governing community documents. Robert Kaye, Michael Bender and Jeff Rembaum are industry leaders who are often sought out by public policy makers and the media for advice and commentary on community association law. Offices in Broward, Palm Beach, Orange and Hillsborough Counties, as well as Miami-Dade by appointment. The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation. Thank you for your interest in Kaye Bender Rembaum.

Website
https://kbrlegal.com/
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As with each year, we hope for a season with no hurricanes coming our way.  However, it is safe to expect that there may be at least one such event in the coming months and, at the start of the hurricane season, it is prudent to plan for that possibility.

As with each year, we hope for a season with no hurricanes coming our way. However, it is safe to expect that there may be at least one such event in the coming months and, at the start of the hurricane season, it is prudent to plan for that possibility.

If the Board desires additional information and contact information for obtaining the free inspection and analysis of the condition of the community, please contact Kaye Bender Rembaum.  The Firm wishes all a safe and peaceful hurricane season!


 Some of the planning steps that should be considered include the following:

  1. Create a Disaster Plan and establish off-site contact information and meeting points.
  2. Establish Evacuation Routes and conduct building or community evacuation drills in the weeks leading up to and once the hurricane season has begun.
  3. Verify Emergency Generators & Supplies operate and that fuel, flashlights, batteries, water and other necessities are available.
  4. Backup Computer Files and store information offsite, in case computers crash or systems fail.
  5. Secure the Premises – Make preparations for routine lockdown of the building(s) or other facilities as a storm approaches, so the building(s) is(are) secure during the storm and safe from vandalism or looting if a hurricane strikes.
  6. List of Owners & Employees – Have on hand a current, hard-copy reference list complete with the names of all property owners, emergency contact numbers and details of second residence addresses, as well as a list of all association employees, with full contact details.
  7. Photograph or Video Premises – Keep a visual record through video or photographs of premises, facilities and buildings to facilitate damage assessment and speed damage claims in a storm aftermath.  Consider having the premises evaluated by appropriate professionals to establish the conditions prior to any hurricane event. (see further details on this item below)
  8. Building and Facilities Plans – Make sure a complete set of building or community plans are readily available for consultation by first-responders, utilities workers and insurance adjusters following a storm.
  9. Insurance Policies & Agent Details – Be sure all insurance policies are current and coverage is adequate for community property, facilities and common areas and compliant with State Law; full contact details for insurance companies and agents should be readily available in the event of a storm.
  10. Bank Account Details & Signatories – Keep handy a list of all bank account numbers, branch locations and authorized association signatories, and make contingency plans for back-up signatories in case evacuation or relocation becomes necessary.
  11. Mitigation of Damages – In the immediate aftermath of a storm, take the necessary steps to mitigate damages – this includes “Drying-In,” which is the placement of tarps on openings in the roof and plywood over blown out doors and windows, and “Drying-Out,” which is the removal of wet carpet and drywall to prevent the growth of mold.
  12. Debris Removal – Have a plan for speedy removal of debris by maintenance staff, outside contractors or civic public works employees, should a hurricane topple trees and leave debris in its wake.

With respect to item 7 above, Kaye Bender Rembaum has become aware of at least one service provider that will bring in engineering professionals to make a physical inspection of the entire community to assess the conditions and establish a record for all such conditions prior to any storm.  The assessment will also identify conditions that may have resulted from Hurricane Irma from 2017, for which claims were not made or even found and may still be claimed.  In many instances, conditions of significant damage may not be readily apparent to the layperson, but to a qualified professional, very obvious.  Quite often, such an inspection can result in substantial additional insurance claims for the association to recover.  It is not unusual for an insurance carrier to reject initial claims following a major storm, citing to maintenance or pre-existing conditions as the basis for the denial.  The team of experts performing the assessment has assisted several communities overcome such rejections and ultimately receive additional settlement proceeds to make further repairs to the premises.  While there is no guaranty of such a result, without making such an assessment, the board will never know and certainly have no further recovery.  Most importantly, this inspection and assessment is undertaken at no charge to the association by this company, and with no obligation to the association!

 

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August 24th at 12 Noon Est, Allison Hertz, Esq., BCS will teach “Conflicts of Interest: What You Need to Know” in this webinar

August 24th at 12 Noon Est, Allison Hertz, Esq., BCS will teach “Conflicts of Interest: What You Need to Know” in this webinar

  • Posted: Aug 22, 2023
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On August 24th at 12 Noon  (Webinar)

Est, Allison Hertz, Esq., BCS of KBRLegal will teach “Conflicts of Interest: What You Need to Know”

this webinar hosted by GRS Community Management. It’s free to enroll and happens via Zoom.

Click the link to RSVP:  

Course provided by Kaye Bender Rembaum. Course# 9630141 | Provider# 0005092 | 1 CEU in HR or ELE Instructor: Allison L. Hertz, Esq. BCS Attendees will learn to identify potential conflicts of interest (plus definitions), how to document disclosures, internal controls and training staff, directors and officers, new statutory requirements and penalties and best practices for associations.
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REMBAUM’S ASSOCIATION ROUNDUP | The Community Association Legal News You Can Use

REMBAUM’S ASSOCIATION ROUNDUP | The Community Association Legal News You Can Use

  • Posted: Aug 14, 2023
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Jeffrey Rembaum, Esq. is a  Board Certified Specialist in Condominium and Planned Development Law and 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.

Guns in the Clubhouse: What Can a Community Association Do?

The right of the people to carry and bear arms without governmental infringement is a right which stems from both the United States Constitution and the Constitution of the State of Florida. The State of Florida recently adopted new gun legislation, effective July 1, 2023, which allows the everyday citizen to carry a concealed weapon without first obtaining a concealed weapons permit. This raises interesting questions for community associations such as, is the right to carry a concealed weapon absolute? Can a community association adopt a rule that prohibits the carrying of concealed weapons in the clubhouse or other common area facilities?

Before we get too far in our analysis, it is important to point out that the intent of this article is not to advocate for gun control or the right to carry. Rather, the intent of this article is to examine the rulemaking authority of a board of directors of a community association to prohibit concealed weapons in the clubhouse and other common areas. In short, is it possible for a community association to adopt such a rule? Yes, subject to the cautions and explanations explained below. Is the adoption of such a rule risk free? No!

As the starting point, in order for a board-made rule of this nature to have validity, we must examine whether it violates either the United States Constitution or the Constitution of the State of Florida. As to when constitutional protections apply within a community association, this is an interesting question. In prior cases, courts have found that recorded covenants restricting home ownership based on race will subject the covenants to a constitutional examination, and in the end, such covenants were deemed to violate the equal protection clause of the Fourteenth Amendment to the United States Constitution.

Another method by which courts may find application of constitutional protections to community associations is if there is significant governmental action associated with the community association. For example, an argument would exist that if a community association were built with federal monies, the covenants of such a community association would be subject to all the protections afforded by both the United States Constitution and the Constitution of the State of Florida. Often, multiple community associations that exist within a sprawling master association are built in community development districts (CDD). The CDD is a quasi-governmental entity established to govern and control what would otherwise be the common areas of the master association. The creation of the CDD allows many of the hard costs associated with the community’s build-out, such as the roads and drainage systems, to be immediately passed on to the first-time home buyers. By utilizing a CDD, long-term bonds can be issued, which are paid back through ad valorem tax obligations allowing the costs to spread out over a significantly longer period of time. As quasi-governmental entities, constitutional protections which limit powers of government would likely apply to CDDs. Therefore, should a CDD adopt rules to prohibit concealed weapons in the common areas, such a rule would likely be found to violate constitutional protections. However, the same analysis is not applicable if the community association itself adopted such a rule.

It should be remembered that courts have long held that owners give up certain individual rights and liberties when living in a community controlled by a community association. In 2002 the Florida Supreme Court held, in Woodside Village v. Jahren, 806 So. 2d 452 (Fla. 2002), that certain individual rights must be compromised when one chooses to live in a condominium association (and by analogy, in a homeowners’ association, too). But, on occasion courts have found that certain constitutional protections apply within a community association; however, such application is somewhat rare.

Thankfully, we do have some limited guidance. In 1989 the Florida Supreme Court held, in Quail Creek POA v. Hunter, 538 So. 2d 1288 (Fla. 2d DCA 1989), that neither a homeowners’ association’s recording 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 Amendment and the Fourteenth Amendment of the United States Constitution would apply. By analogy, such logic could be applied to defending the right of a community association to adopt a rule prohibiting concealed weapons in the clubhouse. Thus, there is no reason to believe that such arguments would not also apply to the application of the Second Amendment of the United States Constitution within community associations. That said, it would not at all be surprising for an owner to challenge such a rule; so, any association that adopts such a rule should be prepared to be a possible test case, which could have national implications associated with it.

Let us assume that the board understands and accepts such a risk and is ready to move forward to adopt a rule prohibiting the carry of concealed weapons in the clubhouse. Certainly, we recommend that counsel for the association be consulted prior to adopting these types of rules. For the purposes of our analysis, let us also assume that the community association at issue does not have a sufficient nexus to the federal or state governments that would, in and of itself, render such a rule unconstitutional. Under these circumstances, the analysis can then shift to the ordinary rulemaking criteria necessary to withstand judicial challenge, as follows:

      1. Does the board have the necessary rulemaking authority set out in the governing documents or by statute to adopt such a rule?
      2. Does the rule conflict with any rights afforded by governing documents of higher priority, whether they are considered express or implied rights?
      3. Is the rule reasonable? Reasonableness is difficult to define, but case law provides that the rule must be rationally related to a legitimate association objective. The rule cannot be arbitrary or capricious.
      4. Does the rule contravene existing laws or compelling public policies?
      5. Was the rule adopted in a procedurally correct manner that is provided by both the governing documents and existing law?

Of course, even if the association adopts such a rule, enforceability is an entirely different issue. Assuming the association is not using some type of full body scanner, then so long as the possessor of the concealed weapon does not brandish the weapon, and thus it remains fully concealed, no one will be the wiser. In addition, such a rule would not apply to certain individuals who have an absolute right to carry a concealed weapon, subject to very few limitations, such as an off-duty police officer.

As an aside, just because a person may not need to have a concealed weapon permit to carry a concealed weapon, this does not mean that the still-available concealed weapon permit does not have value. It certainly does when it comes to traveling outside the State of Florida to one of the many states, over 26, that have reciprocity with Florida, meaning that the other states recognize Florida’s concealed weapons permit. With that in mind, obtaining a concealed weapons permit may still make sense.

While a properly drafted rule prohibiting guns in the clubhouse stands a decent chance of validity, remember that even if your association

i) fully analyzes whether it has any type of federal governmental nexus which would provide for clear application of constitutional protections and such analysis is answered in the negative, ii) meets the rule adoption criteria listed above, and iii) consults with the association’s lawyer who helps draft such a rule, the association could still find itself as a defendant in a lawsuit seeking to have such a rule invalidated by the court.