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Property Management Requirements in Florida – SFPMA

Property Management Requirements in Florida – SFPMA

  • Posted: Jul 10, 2022
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Property Management Requirements in Florida

State of Florida Property Management Association; On our Website you can find on our Licensing Course Partners the Licensing Courses are offered to you to become a CAM Manager in the State of Florida!

 

Find out about Licensing and Board Member Courses

 

Questions and Answers you might have

1. Must a Florida property management company have a real estate broker’s license

YES. Key components of property management (renting and leasing) are considered a real estate activity under existing Florida real estate licensing laws. A property manager needs a brokers license if he or she is paid by commission, and is handling rentals and leases for others.

No license is required for managing personally owned properties. There is a “Property Manager” license or certificate you should have. Also, certain rental properties need a license through the Div. of Hotels and Restaurants.

 

2. Are there any exceptions to the requirement that a Florida property manager have a broker’s license?

YES. For example, if a property owner employs someone to manage their property, and that “employee is paid a salary”, as opposed to being paid a commission or on a transactional basis, a broker’s license is not required.

For more information about these and other Florida property management requirements and exceptions, please contact the Florida Real Estate Commission.

Before hiring a property manager to manage your Florida rental property, you should always check that he or she is licensed appropriately. You can check the license status of Florida property managers at the Florida Department of Business and Professional Regulation’s Licensee Search webpage.

3. Must Florida community association managers have a real estate broker’s license?

No. However, a Community Association Manager license is required if someone receives compensation for providing management services for the following types of associations:

  • An association with ten or more units
  • An association with a budget of $100,000 or greater

 

4. Florida Real Estate Broker License Requirements

Florida real estate broker licensing requirements include:

  • Age: Must be at least 18 years of age.
  • High School: Must have a high school diploma or equivalent.
  • Experience: Must have held a current real estate sales associate license for at least 24 months during the 5 year period immediately preceding becoming a licensed broker.
  • Education: Successfully complete a Florida Real Estate Commission approved pre-licensing course for brokers, consisting of 72 classroom hours and covering specified topics. Courses are valid for licensure purposes for two years after completion. In addition, successfully complete a FREC-approved post-licensing course for brokers, consisting of 60 classroom hours before the initial broker license expires.
  • Exam: Pass the Florida Real Estate Broker Examination with a grade of at least 75.
  • Fee: $115 ($20 application fee; $90 license fee; $5 unlicensed activity fee).
  • Application: complete and submit broker license application which is available online.

 

5. Florida Real Estate Salesperson License Requirements

Florida real estate salesperson licensing requirements include:

  • Age: Must be at least 18 years of age.
  • High School: Must have a high school diploma or equivalent.
  • Education: Successfully complete a Florida Real Estate Commission 63-hour sales associate course.
  • Trustworthiness: Must be of good moral character; must have a background check and submit fingerprints.
  • Exam: Pass the Florida Real Estate Sales Associate Examination with a grade of at least 75%

 

6. Florida Community Association Manager License Requirements

Florida community association manager licensing requirements include:

  • Age: Must be at least 18 years of age.
  • Education: Must complete at least 18 hours of pre-licensure education from an approved provider.
  • Trustworthiness: Must be of good moral character; must have a background check and submit fingerprints.
  • Exam: Pass the Community Association Management Exam.
  • Then Pay the License fee in your state.

Become a Property Management (CAM) in Florida

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Hurricane Preparation for your Building – Don’t wait, Make a Plan Today

Hurricane Preparation for your Building – Don’t wait, Make a Plan Today

  • Posted: Jul 10, 2022
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Hurricane Preparation for your Building

Don’t wait: Make a Plan Today

Finding Trusted Companies that work with our Industry is important!

We Provide Insurance Public Adjusters and Legal Experts Roofing Companies and cleanup and Tree and Lawncare Members to handle Storm Damage & Claims for your Properties!

Find more on our website >>>

FloridaAdjusting.com

WHAT WE PROVIDE CONDO & HOA’S

Property Inspections & Site Analysis

Review of your Insurance Policy

Damage Report Backing up the Claim

Loss Estimates Documentation

Negotiation and Settlement with Insurance Companies

 

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Director Compensation: Do I Get Paid for This?” – by Becker for the – Naples Daily News

Director Compensation: Do I Get Paid for This?” – by Becker for the – Naples Daily News

  • Posted: Jul 05, 2022
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Q: I am considering running for the board of my condominium association. However, there is a lot of work involved in being on the Board. It can be a thankless position, which discourages many owners from volunteering. Can we compensate the members of the board as a way to encourage people to serve?

A:  The Florida Condominium Act states that unless otherwise provided in the bylaws, the officers and the directors shall serve without compensation. So, unless your association’s bylaws provide for such compensation, compensation is prohibited.

The Florida Homeowners’ Association Act contains similar language.

While your sentiments are spot on, boards being paid for their service is very rare in the community association realm. I do think there would be some basis for concern as to whether paid directors would be held to higher standards of legal liability, as well as whether the typical nonprofit Directors and Officers Liability Insurance Policy written to cover association directors would be available.

Q:  I received the first notice of my condominium association’s annual meeting just over a month ago. The first notice included a “Notice of Intent” form that had to be submitted by any owner wishing to run for the board of directors by the stated deadline. One of the owners that submitted a Notice of Intent is behind on the payment of her assessments. However, she told our association manager that she would pay her assessments in full before the election. Can she run for the board as long as she pays her assessments before the election?

A:  A unit owner desiring to be a candidate for the board must give written notice of his or her intent to be a candidate to the association not less than 40 days before a scheduled election. The law states that an owner must be eligible to be a candidate to serve on the board at the time of the deadline for submitting a notice of intent.

The Florida Condominium Act contains a number of eligibility requirements for candidates, one of which is that the candidate must not be delinquent in paying any assessment to the association. According to changes in the Act that became effective on July 1, 2021, a person is considered “delinquent” if a payment is not made by the due date of the assessment as specifically identified in the declaration of condominium, bylaws, or articles of incorporation.

Prior to the July 1, 2021 changes, an individual was not eligible if they were delinquent in the payment of any “monetary obligation” to the Association (as opposed to the current version of the law which states delinquent in the payment of assessments). For example, someone who had not paid a fine would be ineligible under the old law, the new law limits eligibility to assessment payment.

If the candidate in your community was delinquent on the 40th day before the election, this individual would not be eligible to be a candidate and cannot be listed on the ballot.

Q:  Most of the members of our board will be leaving our condominium soon to go back to their Northern residences, making it very difficult for us to have in-person board meetings. Can our condominium board vote via e-mail? (M.J.)

A:  The Florida Condominium Act specifically provides that members of the board may use e-mail as a means of communication but may not cast a vote on an association matter via e-mail. Although there may be certain day-to-day decisions that do not require a vote of the board that can be discussed via e-mail, any action that requires approval of the board under your condominium documents or the Act must be done at a duly noticed and open board meeting.

The good news is that the Condominium Act does allow board members to participate in a meeting via telephone or real-time videoconferencing. If a director participates via videoconference, for example, the director’s participation counts towards a quorum, and the member can vote as if physically present.

Jennifer Biletnikoff is a Board Certified Specialist in Condominium and Planned Development Law and represents condominium, cooperative, mobile home and homeowners’ associations located throughout Southwest Florida including Collier, Lee, Sarasota and Charlotte Counties. She has particular experience in covenant enforcement and foreclosure law, and has also practiced in the areas of commercial, business and tort litigation.

 

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We Celebrate Independence Day, with Cohen Law Group and Members of SFPMA

We Celebrate Independence Day, with Cohen Law Group and Members of SFPMA

  • Posted: Jul 05, 2022
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We Celebrate and Honor Our Heros
We Celebrate Independence Day
As we celebrate our nation’s Independence Day, let’s remember the American heroes who lost their lives in the battle for the freedom we are enjoying today. We are indebted to our national heroes who have fought and continue to fight for this country.
I served in the United States Army for four years. Because of the GI Bill, I was able to attend college and become an attorney. My military service has helped me grow Cohen Law Group into a place where my team and I can continue to serve our community every day.
As patriotic citizens, let’s put extra effort into performing our own civic responsibilities. Every American’s contribution towards moving this nation forward is important. We must always be mindful of how our actions or inaction affect the well-being of others.
Today we celebrate the honor it is to be an American. We celebrate those who have helped our incredible nation progress. We celebrate all that America will become.
We wish you and your family a safe and happy Independence Day!
With Respect and Gratitude,
Harvey Cohen Signature
Harvey V. Cohen, President

With Respect and Our Thanks for your Service from all of us at SFPMA.COM

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These new Florida laws go into effect on Friday July 1st.

These new Florida laws go into effect on Friday July 1st.

  • Posted: Jul 01, 2022
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On Friday, dozens of new laws will take effect in Florida kicking off the month of July. The laws cover a range of topics from school safety to smoking on the beach.

Here are a few of the laws that take effect July 1: 

THE FLORIDA CLEAN AIR ACT

This means smoking will no longer be allowed on Florida beaches. Local governments can restrict smoking on public beaches and in parks.  That also goes for littering: You could face a strict fine for tossing a cigarette butt on the beach.

Environmental experts say this will help not only the health of people but sea life too.

PARENTAL RIGHTS IN EDUCATION

Widely dubbed the “Don’t Say Gay” bill by critics, the law bans teachers from giving classroom instruction on “sexual orientation” or “gender identity” in kindergarten through third grade.

K-12 EDUCATION

A new K through 12 law concerning controversial books also goes into effect on Friday.

The law requires school districts to have a procedure in place that allows parents to see all of the books in the library and classroom.  The law also gives parents the opportunity to review all books and set curriculum standards.

Besides books, the law creates a 12-year term limit for school board members.

 

MIYA’S LAW

The new law will require apartment landlords to conduct background checks on employees, a response to the September murder of a Valencia College student. Criminal and sexual-offender background checks will be required for apartment-complex employees. Also, tenants will have to be given 24 hours’ notice before workers can enter apartments.

The measure was crafted after the death of 19-year-old Miya Marcano, who was found dead a week after she went missing from her Orlando apartment.

MILK BANK LAW

This will make it possible for low-income mothers to have access to free donated breast milk. The bill authorizes the Agency for Health Care Administration to pay for donor milk to distribute to families on Medicaid if they want it.

LOUD CAR MUSIC

HB 1435 will allow officers to give a ticket to drivers who are playing music so loud that it can be heard 25-feet from the vehicle. The bill specifically mentions car music playing too loudly near churches, schools, or hospitals.

NEW STATE DESSERT

The battle over dessert will finally be over!  On Friday, strawberry shortcake will be the official Florida state dessert. That’s leaving a sour taste in the mouths of people who have loved key lime pie all these years. However, key lime is the state’s official pie.

SCHOOL SAFETY

This law requires a more detailed security plan. It requires that schools have a guide to reunite students with family in the event of an emergency. The law sets rules for emergency drills requiring law enforcement officers who will be responding to the emergency to be there and participate.

It even addresses student mental health.  At least 80 percent of school personnel will be required to be certified in youth health awareness training, beginning July 1 of next year.

BOATING SAFETY ACT

Just in time for the July Fourth weekend, this is allowing the courts to impose a fine for boating collisions and accidents.

The law requires certain boating safety education courses or temporary certificate exams to include items like dangers associated with passenger safety, operating a boat or jet ski near a person who is in the water, and proper use of engine cutoff switches. It also mentions companies that rent and provide water sport activities and instruction must use a working engine cutoff switch.

FLORIDA TAX HOLIDAY

Stock up on those diapers! This is the opportunity to buy certain items, including diapers, without paying Florida state sales tax.  A tax holiday for children’s diapers, books, clothing and shoes will be in effect for one year.

School supplies including clothing, wallets, and bags will have tax exemptions starting July 25 and lasting until August 7. Now that hurricane season is here, you may want to consider buying impact-resistant windows and doors, which will remain tax-free for the next two years.

MENTAL HEALTH AND SUBSTANCE USE DISORDERS

The new law aims to change how Florida cares for these individuals by recognizing certified peer specialists as a support role in recovery. These are typically people who have recovered from substance abuse and mental illness and are helping others get through similar situations.
Under the new law, family members and caregivers will also be eligible for certification. Specialists must undergo background checks and pass a competency exam before being certified.

FLORIDA IDENTIFICATION CARDS

This new law allows Floridians easier access to those cards in cases of financial hardship or failing a driver’s test. If someone can’t afford a new card, they can get one for free as long as they have a valid voter’s registration card.

The same goes for anyone 80 years and older who cannot get a new driver’s license because they failed the vision test.

STUDENT ASSESSMENTS

The Florida Standards Assessments (FSA) will be eliminated and the State Academic Standards will take effect.

The law removes standardized testing in schools and replaces it with three different tests throughout the year to monitor progress. Those tests will take place at the start, middle, and end of the school year.

PERSONAL FINANCE EDUCATION BILL

Florida high school students will be required to take a financial literacy course as a condition for graduation.

The financial literacy course would have to include instruction on types of bank accounts and how to open and manage accounts, completing loan applications and computing federal income taxes.

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Now That Safety Reform Legislation Has Passed, Prepare!

Now That Safety Reform Legislation Has Passed, Prepare!

  • Posted: Jun 30, 2022
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Now That Safety Reform Legislation Has Passed, Prepare!

Now That Safety Reform Legislation Has Passed, Prepare!

by Enrolled Agent Steven J. Weil, Ph.D., EA, LCAM, Royale Management Services, Inc.

The tragedy at Surfside was a wake-up call for many of Florida’s high-rise residents and legislators.

To recap, in a Special Session on May 26, 2022, the Florida Legislature unanimously passed Senate Bill 4-D. The Safety Reform Bill comes with a deadline of December 31, 2024.

This means that Florida has now imposed a state-wide structural inspection program for condominium and cooperative associations that are three (3) stories or more in height. Buildings with a certificate of occupancy that was issued on or before July 1, 1992 must have an initial milestone inspection performed before December 31, 2024.

What is a Milestone Inspection?

A milestone inspection is a structural inspection of a building’s load-bearing walls and primary structural members/systems. They must be performed by a Florida licensed engineer/architect who must attest to the life safety and adequacy of structural components of the building.

The inspection consists of two phases:

Phase one — Visual examination of habitable and uninhabitable areas of a building. If there are no signs of structural deterioration found, phase two is not required.

Phase two — If substantial deterioration is found during phase one, phase two may involve destructive or nondestructive testing at the inspector’s discretion. This additional inspection may be as extensive or limited as necessary to fully assess areas of distress.

Community association managers or management companies working with associations that are subject to this inspection must comply as directed by the board. Upon receiving notice from a local law enforcement agency, condominium/cooperative associations will have 180 days to complete phase one of the inspection.

What About Reserves?

Beyond that, also effective December 31, 2024, no unit owner-controlled condominium or cooperative will be permitted to vote to waive or partially fund their reserves.

Condominiums and cooperatives must adequately fund reserve accounts, and the amount is determined by the most recent structural integrity reserve study, also required.

Unanswered Questions Remain!

What are the definitions and requirements for certain items that will be hashed out in the coming months by state and local building departments and regulators?

What will the costs be for milestone inspections and required reserve studies?

Will there be enough Florida licensed Engineers and Architects to handle the number of statewide inspections?

How much will the new mandatory reserve items add to the cost of owning and or renting in a condominium or coop?

What provisions, if any, can be made for financing the necessary phase two required repairs?

What Does It All Mean for Boards and Residents?

Clearly, the short answer to the question “what now” is PREPARE.

Costs of materials are rising. The sooner the work gets done, the lower the cost is likely to be. It makes sense to start now to interview potential engineers and architects.

It makes sense for Boards to review association documents and to educate residents about how the new laws will affect them.

Deciding what repairs to make will surely be controversial.

Many associations have not been funding reserves or only partially funding them for years. The mandatory change to fully fund is sure to be a costly and unwelcome adjustment.

It does seem clear that based on the new law the cost of maintaining and living in an association will increase and that this will impact many of the residents.

Royale Management Services, a registered and licensed community association management corporation in Florida, works with association Boards of Directors throughout South Florida to oversee the daily activities required for proper management, helping to educate them on their responsibilities, duties, and obligations. Royale’s team members are highly trained in all aspects of community association management and customer service to ensure that proper procedures are followed that keep the association in compliance with all of the rules governing elections, budgeting, accounting, operation, collection and assessment. The firm and its president are members of the Community Association Institute (CAI) and the Fort Lauderdale Chamber of Commerce.

THE NEW CONDO LAWS —- MANDATORY INSPECTIONS – PART ONE & PART TWO

THE NEW CONDO LAWS —- MANDATORY INSPECTIONS – PART ONE & PART TWO

  • Posted: Jun 14, 2022
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Let’s start discussing the new condominium laws that go into effect on July 1st.  We won’t cover them all in one week, so look forward to next week’s blog as well.

IF YOU HAVE A MANAGEMENT COMPANY the statute says:

If a community association manager or a community association management firm has a contract with a community association that has a building on the association’s property that is subject to s. 553.899, (the Mandatory Inspections statute) the community association manager or the community association management firm must comply with that section as directed by the board.

This is a weird provision to me.  Clearly, it’s warning managers and management companies to comply with the new mandatory inspection statute. But it also says “as directed by the board.”  What does that mean?  Suppose the board tells the manager that they are deliberately not complying with the new mandatory inspection statute? Does that get the management company off the hook?  Can the management company now sit back and do nothing?  I certainly don’t think that’s the intent of the statute, but it should definitely be clearer.  In any event, at least to me, the management company must not hinder the association’s efforts to comply with the new mandatory inspection statute.  If I were a manager or management company, I would document my efforts thru e-mails to all of the Board members urging them to comply and reminding them of their responsibility to comply with the new mandatory inspection requirements.

Remember, prior to this new law becoming effective, only Dade and Broward had mandatory / structural inspection requirements.  Wellwe now have in every Florida county something called milestone inspections — and there is part one and part two.

In every county in Florida, your first milestone/structural  inspection is after 30 years and every ten years thereafter.  But, if your condo is ON THE COAST or within three miles of the coast, your first milestone/structural inspection is AFTER TWENTY FIVE YEARS AND EVERY TEN YEARS THEREAFTER. And this applies to every condo or co-op that is three stories or more in height by December 31 of the year in which the building reaches 30 years of age

The structural inspection of a building, including an inspection of load-bearing walls and the primary structural members and primary structural systems, must be done by by a licensed architect or engineer authorized to practice in this state for the purposes of attesting to the life safety and adequacy of the structural components of the building and, to the extent reasonably possible, determining the general structural condition of the building as it affects the safety of such building, including a determination of any necessary maintenance, repair, or replacement of any structural component of the building.

If the building’s certificate of occupancy was issued on or before July 1, 1992, meaning that you are already 30 years old, the building’s initial milestone inspection must be performed before December 31, 2024.

 

Here is what’s required in a Phase One Inspection:

PHASE ONE  (a) For phase one of the milestone inspection, a licensed architect or engineer authorized to practice in this state shall perform a visual examination of habitable and nonhabitable areas of a building, including the major structural components of a building, and provide a qualitative assessment of the structural conditions of the building. If the architect or engineer finds no signs of substantial structural deterioration to any building components under visual examination, phase two of the inspection, as provided in paragraph (b), is not required.

In all candorin a post Champlain Towers worldif I’m the phase one guy — I don’t want to be sued for saying this building is in perfect shape and doesn’t even need a phase two inspection.  I think the Phase One Inspection will Always result in the First architect or engineer calling for a Phase Two study.  What does he or she have to lose?


MANDATORY BUILDING INSPECTIONS – PART TWO

By Eric Glazer, Esq.

So last week we discussed the fact that the change in the law will now require every condominium building in the state that is 3 stories or higher and at least 30 years old (25 years old if within 3 miles of the coast) to undergo a Phase One inspection, every 10 years, by a licensed architect or engineer who is looking for visual signs of structural damage to the building.

Now if I’m the guy doing the Phase One Inspection, it’s pretty likely that I’m going to find something that requires a Phase Two inspection.  Why not?  Is it worth the potential liability for saying the building is fine and then someone is injured or killed because of a structural defect?  Of course not.  So count on lots of Phase Two Inspections.  Here is what that entails:

 

PHASE TWO – Only If found to be necessary after the Phase One Inspection

(b) A phase two of the milestone inspection must be performed if any substantial structural deterioration is identified during phase one. A phase two inspection may involve destructive or nondestructive testing at the inspector’s direction. The inspection may be as extensive or as limited as necessary to fully assess areas of structural distress in order to confirm that the building is structurally sound and safe for its intended use and to recommend a program for fully assessing and repairing distressed and damaged portions of the building. When determining testing locations, the inspector must give preference to locations that are the least disruptive and most easily repairable while still being representative of the structure. An inspector who completes a phase two milestone inspection shall prepare and submit an inspection report pursuant to subsection (8).

(8) Upon completion of a phase one or phase two milestone inspection, the architect or engineer who performed the inspection must submit a sealed copy of the inspection report with a separate summary of, at minimum, the material findings and recommendations in the inspection report to the condominium association or cooperative association, and to the building official of the local government which has jurisdiction. The inspection report must, at a minimum, meet all of the following criteria:

(a) Bear the seal and signature, or the electronic signature, of the licensed engineer or architect who performed the inspection.

(b) Indicate the manner and type of inspection forming the basis for the inspection report.

(c) Identify any substantial structural deterioration, within a reasonable professional probability based on the scope of the inspection, describe the extent of such deterioration, and identify any recommended repairs for such deterioration.

(d) State whether unsafe or dangerous conditions, as those terms are defined in the Florida Building Code, were observed.

(e) Recommend any remedial or preventive repair for any items that are damaged but are not substantial structural deterioration.

(f) Identify and describe any items requiring further inspection.

THE ASSOCIATION’S RESPONSIBILITY

(9) The association must distribute a copy of the inspector-prepared summary of the inspection report to each condominium unit owner or cooperative unit owner, regardless of the findings or recommendations in the report, by United States mail or personal delivery and by electronic transmission to unit owners who previously consented to receive notice by electronic transmission; must post a copy of the inspector-prepared summary in a conspicuous place on the condominium or cooperative property; and must publish the full report and inspector prepared summary on the association’s website, if the association is required to have a website.

 (10) A local enforcement agency may prescribe timelines and penalties with respect to compliance with this section.

(11) A board of county commissioners may adopt an ordinance requiring that a condominium or cooperative association schedule or commence repairs for substantial structural deterioration within a specified timeframe after the local enforcement agency receives a phase two inspection report; however, such repairs must be commenced within 365 days after receiving such report. If an association fails to submit proof to the local enforcement agency that repairs have been scheduled or have commenced for substantial structural deterioration identified in a phase two inspection report within the required timeframe, the local enforcement agency must review and determine if the building is unsafe for human occupancy.

The bottom line is that if forced to do a Phase One inspection, you can ensure you will be required to do a Phase Two Inspection.  The Phase Two Inspection will be costly and the architect or engineer performing the study has full reign over the property.  What they say needs fixing, needs fixing.  And what do they have to lose in stating that certain structural repairs should be made?  On the other hand, they have a lot to lose if they don’t recommend a fix and catastrophe strikes.  Rest assured that Phase Two Study will require repairs and they won’t come cheap.

 

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Season 3, Episode 10 of ‘Association Leadership’ New Inspections, Reserves and Insurance Legislation

Season 3, Episode 10 of ‘Association Leadership’ New Inspections, Reserves and Insurance Legislation

  • Posted: Jun 14, 2022
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Presented by Castle Group
Season 3, Episode 10 of ‘Association Leadership’
New Inspections, Reserves and Insurance Legislation
If you know CAMS and Board Members who will benefit from these important webinars, please share.
This online webinar is hosted by The Castle Group. If you have any questions before or after this event, please visit them at: https://castlegroup.com/contact/
Castle Group invites you to join us for Season 3, Episode 10 of Association Leadership: New Inspections, Reserves and Insurance Legislation.
The live webinar will be hosted by James Donnelly, Castle Group – Founder & CEO who will be joined by attorney Jeffrey A. Rembaum and Michael S. Bender – Kaye Bender Rembaum, P.L. Board Certified Specialists in Condominium and Planned Development Law, with special guest Misha Mladenovic, M2E – President.
Wednesday, June 15, 2022 | 12 Noon to 1:00pm

 

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WHO REPAIRS THE INCIDENTAL DAMAGES CAUSED BY THE ASSOCIATION? Article by KBR Legal

WHO REPAIRS THE INCIDENTAL DAMAGES CAUSED BY THE ASSOCIATION? Article by KBR Legal

  • Posted: Jun 14, 2022
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WHO REPAIRS THE INCIDENTAL DAMAGES CAUSED BY THE ASSOCIATION?

 Imagine: the association has just informed you it is set to begin a massive concrete restoration project. As part of the project, the contractor will need access to the rebar beneath the concrete slab connected to (or in legalese, “appurtenant to”) your unit’s balcony. To access the balcony slab, the contractor will have to remove the custom Italian tiles you just installed on your balcony. Who is responsible for the costs of the removal? Who is responsible to replace the tiles? The answers to these questions will largely depend on whether the governing documents of the association include an “incidental damage clause” and the specific circumstances of the situation, too.

In its most simplistic sense, an incidental damage clause in the declaration means that the association is responsible to repair any “incidental damage” caused by the association’s exercise of its maintenance, repair, and/or replacement responsibility. However, the existence or absence of such language is not always dispositive as to the repair responsibility. This is similar to “i” before “e” unless after “c” as there always seem to be exceptions.

For example, the repair and replacement obligation of the association may be limited only to damage caused to the unit and not cover any owner improvements to limited common elements, such as the balcony; or the obligation may be limited to damage to improvements only as originally installed by the developer, too. Whether the association or the owner will be responsible to repair the damage is highly fact-specific and will depend on the exact language in the governing documents of the association. Arbitration decisions of the Division of Florida Condominiums, Timeshares, and Mobile Homes (the Division), discussed below, provide some guidance as to when the association may be responsible for incidental damage and when the owners will be responsible to repair same. That said, bear in mind that such decisions are not precedential and in addition only apply to the parties in the arbitration that resulted in the Division’s order. However, it does provide a good understanding of how the Division may rule in a similar circumstance.

As discussed above, where the governing documents contain incidental damage language, and the association damages a portion of the unit while conducting its maintenance, repair, and replacement responsibility, the association is likely responsible for the repair. This is illustrated in Rock v. Point East Three Condominium Corporation, Inc., Arb. Case No. 99-0220, Final Order (September 29, 2000).

In Rock, the association removed a shelf located under a sink and several wall tiles in order to repair rough plumbing in the common elements. The association replaced the wall tiles but did not replace the shelf after the repairs were completed. The unit owner sought, among other things, to have the association replace the shelf. The unit owner also sought to have the association repair tiles in the dining room of the unit which had “popped up” as a result of an unrelated water leak. The association’s declaration of condominium provided that the association was responsible to repair conduits and rough plumbing and provided that “[a]ll incidental damage caused to an apartment by such work shall be promptly repaired by the association.” The arbitrator ordered the association to replace the shelf, holding that the incidental damage to the shelf was caused by the repair to the rough plumbing, which was the association’s duty to maintain. As such, the incidental damage language of the declaration applied to the shelf. However, the arbitrator held the association was not responsible to replace the tiles in the dining room, as the damage to the tiles was not incidental to any work the association performed to repair the rough plumbing.

Therefore, Rock clearly establishes that while an association is responsible to repair portions of the unit that are damaged as a result of the association’s exercise of its maintenance, repair, and replacement obligation, the damage must be incidental to the association’s work.

If the declaration requires the association to repair or replace incidental damage to the unit, the association will likely be responsible to repair and replace owner modifications to the units, too, unless the declaration provides otherwise. In Brickell Town House Association, Inc. v. Del Valle, et al., Arb. Case No. 95-0133 Final Order (September 12, 1995), the association was required to remove certain owner-installed alterations to the unit in order to access and maintain the common elements. The unit owners asserted that the association was responsible to replace the alterations in accordance with the incidental damage provision in the declaration of condominium. The arbitrator agreed, holding that the association was required to reimburse the owners for the expenses required to restore the units to the condition which existed immediately prior to the association’s reconstruction activities, including betterments which were added by the unit owners since the original construction of the units by the developer.

In accordance with the holdings in Brickell and Rock, if the governing documents provide that the association is responsible for incidental damage to the unit, the association will likely be responsible to repair any portions of the unit damaged by the association’s exercise of its maintenance, repair, and replacement responsibility, including alterations made by owners (unless specifically provided for otherwise).

On a different note, if the governing documents of the association contain incidental damage language which is specific to damage caused to units, then the association will not be responsible for incidental damage caused to owner modifications to the common elements or the limited common elements. Similarly, the association will likely not be responsible to repair any damage to any owner alteration to a unit where the declaration required association approval and the owner failed to obtain same prior to installation of the improvement.

In Continental Towers, Inc. v. Nassif, Arb. Case No. 99-0866, Summary Final Order (November 24, 1999), the association needed to conduct concrete restoration, waterproofing, and other repairs to the unit owner balconies. The unit owners had installed tiles on the balcony and argued that the association was responsible for the replacement of the tile because the declaration provided that the association was responsible for incidental damage to the unit. However, the balcony was part of the common elements, not the unit. Therefore, the incidental damage language in the declaration did not apply to the tile, and, absent any other agreement between the parties, the association had no responsibility to repair and replace same. The arbitrator concluded that:

…in the absence of an agreement between the parties or a controlling provision of the documents, ‘it cannot be said from the mere fact of association permission that the association has assumed the perpetual obligation to remove and replace the personal property when necessary to repair and replace the common elements.’ The arbitrator adopts the rationale articulated in the Carriage House case. Since the balcony is a part of the common elements, and the tile was not part of the original construction, the unit owners are responsible for its removal and replacement.

Further, where there are owner modifications which were not approved as required by the declaration, the association will likely not be responsible to repair notwithstanding the incidental damage requirement set out in the declaration. In Harrison v. Land’s End Condominium Association, Inc., Arb. Case No. 94-0298, Final Order (June 27, 1995), the association was required to remove an owner-installed balcony finish in order to effectuate repairs to the balcony slab. In this case, the balcony was considered part of the unit, and the declaration contained a provision requiring the association to repair incidental damage to the unit. The declaration also required the owner to obtain approval of the association before making any alterations to the bal-cony. However, the owner never obtained such approval. Therefore, despite the incidental damage provision, the arbitrator determined that the association was not responsible to replace the balcony finish because the owner did not obtain association approval as required by the declaration.

Therefore, if an alteration requires association approval and an owner fails to obtain such approval, the association will far more likely not be responsible to repair any incidental damage to the alteration notwithstanding the existence of incidental damage language.

Generally, the association’s repair obligation is limited to actual damage caused to the unit as a result of its maintenance, repair, and replacement obligation. If the unit owners are required to vacate their unit in order for the association to effectuate the repairs, the association is not generally responsible to reimburse the owners for the costs of same. However, as the Brickell case, discussed above, shows us, that is not always the case. In Brickell, the owners also argued that the association was responsible to reimburse them for the costs they incurred in vacating the unit for the repairs. In this case, the association chose to proceed with a method of repairing damage to common element pipes from the interior of the units, which required the unit owners in the affected units to vacate. The association did not explore an option in which the repairs could be made from the exterior, which would permit the unit owners to remain in the unit. The arbitrator agreed with the owners and ordered the association to pay for the costs the owners incurred in vacating the units. As you can glean, this case is very fact specific, which led to this outcome.

In an order denying the association’s motion for rehearing, the arbitrator in Brickell, reiterated its earlier decision that the board, within its business judgment, decided to proceed with a method of reconstruction that required the removal of the owners. Therefore, the expenses of those owners are a common expense to be borne by all owners. The important consideration in this case was the fact that the association proceeded with the repairs from the interior without exploring options to proceed from the exterior. The arbitrator notes that the order should not be construed to mean that an association would be responsible for accommodations for all unit owners in the event that the condominium building had to be tented for termites, or if a hurricane rendered the building uninhabitable. In those cases, all owners would be required to vacate the units, and there can be no other decision of the board. Additionally, in Brickell, if there was no way for the association to make the repairs that would allow the owners to remain in unit, the arbitrator’s decision may have been different. How-ever, as the association chose to displace certain unit owners to effectuate the repairs without exploring any other options, the association was responsible for the owners’ costs to vacate.

Finally, even when there is no incidental damage language in the governing documents, the association may be responsible for damage to the units if the association fails to conduct necessary maintenance to the common elements, when the association knows that such maintenance is necessary. In Dibiase v. Beneva Ridge, Arb. Case No. 92-0210, Final Order (January 19, 1994), the association was aware that the common element parking area was consistently flooding into an owner’s unit. The association retained an engineer to conduct a drainage study, and the engineer recommended several remedial measures to address the drainage problem. While the association took some remedial steps, the association did not follow through on the study’s recommendations. The arbitrator concluded that the association was responsible for the owner’s costs to repair the unit caused by the flooding. The arbitrator explained that, while “[n]o association is required to protect the property against a 100-year storm…” the association was responsible to take those steps reasonably necessary to protect the condominium property.

As the association had an expert report that advised if the association did not take certain remedial measures, the damage to the condominium property would continue, the association had an obligation to make the repairs. As the association failed to follow the report, it was responsible for the damage caused to the unit.

In accordance with the decision in Dibiase, if the association receives a report from an expert advising that certain repairs must be performed, and the association fails to take action, the association may be responsible for the costs of any damage to the units caused by its failure to act.

As you have likely gleaned from the foregoing discussion, it can be difficult to determine who is responsible to repair and replace improvements damaged during the association’s exercise of its maintenance, repair, and replacement obligations. Given the complexities of the issue, your association should consult with its legal counsel with any inquiries regarding the association’s responsibility for incidental damage.

Kaye Bender Rembaum

We are 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. Our areas of concentration include

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Tune into Condo Craze and HOAs – Sunday at 11 am ON 850 WFTL OR ON YOU TUBE

Tune into Condo Craze and HOAs – Sunday at 11 am ON 850 WFTL OR ON YOU TUBE

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Tune into Condo Craze and HOAs – Sunday at 11 am ON 850 WFTL OR ON YOU TUBE

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Statutory Meeting Requirements by Becker

Statutory Meeting Requirements by Becker

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Many condominium and homeowners’ associations’ activities are required to have a certain amount of transparency.

One way that association activities are made transparent is through statutory provisions requiring most kinds of meetings to be open and noticed to the membership. In fact, applicable laws governing the operation of condominium and homeowners’ associations allow board members to communicate by email but prohibits them from voting on issues by email.

Notably, a gathering of a quorum of board members to conduct association business is considered a board meeting (whether taking place in person or by real-time electronic means) and is required to be noticed and open to association members. However, two important exceptions apply. Namely, meetings of the board or an association committee at which the association’s attorney is participating for the purpose of rendering advice upon proposed or pending litigation are not required to be open to association members. Similarly, board meetings held to discuss personnel matters are also not required to be open to association members.

Association members are entitled to speak at open meetings on “designated items” (HOA) or an item on the agenda in a condominium. However, the rights of members to speak at meetings is subject to any rules adopted by the association governing the frequency, duration, and manner of member statements. The right to attend open meetings includes the right to tape record or videotape them, as long as such recording activity is not disruptive. Furthermore, the Division of Florida Condominiums has adopted rules regarding recording condominium association meetings (found in Fla. Admin. Code Rule 61B-23.002(10)), and the Homeowners’ Association Act provides that homeowners’ associations may adopt their own pertaining to recording homeowners’ association meetings.

As such, there are statutory meeting requirements that must be followed for board meetings which must be kept in mind when an association is adopting or changing its procedures. Failing to follow the basic statutory requirements may result in problems. Questions about board meetings, committee meetings, which have their own set of requirements, and members’ meetings should be directed to legal counsel for guidance.