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Triploid Grass Carp- Can They Help Control Weeds on my Lake? By: Allstate Resource Management

Triploid Grass Carp- Can They Help Control Weeds on my Lake? By: Allstate Resource Management

  • Posted: Jan 18, 2022
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Triploid Grass Carp- Can They Help Control Weeds on my Lake?

By: Allstate Resource Management

The grass carp has been introduced throughout the world for aquatic weed control. The grass carp was considered for introduction into the U.S. primarily because of its plant-eating diet, which was thought to have great potential for the control of aquatic weeds.

Wide-scale use of the grass carp in Florida and many other states from 1970 to 1984 was limited and closely regulated due to fears about its reproduction and negative impact on sport fish. Since the grass carp’s potential for causing such problems was evident, early research focused on developing a fish that would be non-reproductive but would retain the grass carp’s herbivorous diet.

Research with the grass carp resulted in the production of a sterile triploid grass carp, which has an extra set of chromosomes. The triploid grass carp is produced in the same way as the diploid, except that fertilized eggs are subjected to heat, cold, or pressure shock result in the formation of fish with an extra set of chromosomes for a total of 72. The extra chromosomes make these fish sterile.

The grass carp is primarily a “grazer”; it tends to feed on the surface and in shallow water. The ability of grass carp to consume and utilize aquatic plants depends on the size of both plants and fish. Additional factors which influence the feeding behavior of grass carp include their size, age, gender, and population density, and the species, abundance, and location of plants within a body of water.

In Florida, a permit is required by law for the use or possession of grass carp. Only grass carp certified as triploid can be used in an aquatic weed management program. Allstate Resource Management recommends triploid grass crap in combination with a lake management program.

Speak with a lake management specialist on how we can develop a management program for your lake or pond!

 

 Contact Allstate Resource Management
 954-382-9766
 info@allstatemanagement.com 

 

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Security Tips for Managing the Association’s Bank Accounts Online  By: Sara K. Wilson, Esq. / Becker

Security Tips for Managing the Association’s Bank Accounts Online By: Sara K. Wilson, Esq. / Becker

  • Posted: Jan 14, 2022
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Security Tips for Managing the Association’s Bank Accounts Online

By: Sara K. Wilson, Esq.  Becker

Increasing numbers of people and small businesses, including community associations, have switched to managing their bank accounts exclusively over the internet.  Not surprisingly, these numbers surged even higher during the pandemic.  While online banking has become common place, so have incidents of cybercrime and fraud.  Banks of course use a variety of security measures to protect their customers’ accounts, but there are also steps that you as the customer should take to minimize risk.

  1. Verify that your bank is using the latest security technology in step with banking industry standards.
  2. Have a dedicated computer for conducting the association’s online banking, and make sure that computer stays current with anti-virus protection and updates. If the dedicated computer is a laptop, never conduct online banking in public spaces or use public Wi-Fi.
  3. Choose passwords that are complex by using a combination of letters, numbers, and symbols, and institute a policy for changing passwords on a regular basis. Limit the number of people who know the password to only those who are managing the accounts.  Passwords should not be recorded on personal computers or mobile devices or accessible to other owners, family members, guests, etc.  Avoid automatic logins to prevent unauthorized persons from easily accessing the association’s accounts.
  4. Be on high alert for phishing scams. Phishing is a technique that cyber-criminals use to gain sensitive information, like bank account numbers and passwords, through fraudulent emails and texts.  Your bank will never ask for your password via email or text; so if you receive such an email or text, delete it. Also beware of any email requesting that you “update your account,” or of any email warning of dire consequences if you do not act immediately.  If you are not sure whether the email came from your bank, contact your banking institution to verify whether they sent the email.  Because phishing scams are so prevalent, it is important to provide information about phishing to anyone who will be managing the association’s accounts online so they know what to look for.
  5. Reconcile your bank accounts on a regular basis – ideally daily – to avoid an irregularity going unnoticed. Inquire whether your bank sends alerts for transactions over a certain amount or if your account drops below a certain amount for added protection.

These are just a few of the steps an association can take to decrease risks when managing its bank accounts online. Because a community association has a fiduciary responsibility to its members, it is imperative that it takes the necessary steps to minimize potential cyber threats to its bank accounts. While there is no guarantee that even a well-protected system won’t be hacked, by adopting and following online banking security policies, an association greatly lessens its chances of being an easy target for a potentially devastating cybercrime.

Sara K. Wilson

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Why Condominium Associations Must Obtain Approval Before Work Begins and A Plea To The Florida Legislature For A Remedy by KBR Legal

Why Condominium Associations Must Obtain Approval Before Work Begins and A Plea To The Florida Legislature For A Remedy by KBR Legal

  • Posted: Jan 12, 2022
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Why Condominium Associations Must Obtain Approval Before Work Begins and A Plea To The Florida Legislature For A Remedy

 

When it comes to material alterations, some might say that homeowner associations have it easy compared to condominium associations. For a homeowners association, because Chapter 720, Florida Statutes is silent on the issue, unless otherwise provided in the governing documents, decisions regarding material alterations are made by the board. But, as to condominium associations, and as their board members should know, §718.113(2), Florida Statutes, requires advance membership approval for material alterations to the common elements and association real property. In this regard, there is no parity between the Condominium Act versus the Homeowners Association Act.

Before explaining further, a reminder of the Florida’s Fourth District Court of Appeal  definition of what constitutes a “material alteration” from the seminal case Sterling Village Condominium, Inc. v. Breitenbach,  251 so.2d 685, 4th DCA (1971) is in order. As explained in Sterling,  “as applied to buildings the term ‘material alteration or addition’ means to palpably or perceptively vary or change the form, shape, elements or specifications of a building from its original design or plan, or existing condition, in such a manner as to appreciably affect or influence its function, use, or appearance.”

Prior to July 1, 2018, §718.113(2)(a), Florida Statutes, provided that no material alteration or substantial addition can be made to the common elements or association real property without the approval in the manner provided for in the declaration, or if the declaration is silent, then by 75 percent of the total voting interests of the association. As adopted by the 2018 Florida legislature, (effective July, 1, 2018), §718.113(2), Florida Statutes was amended to provide that approval of the material alteration or substantial addition must be obtained before the work commences.

 

The current language of §718.113(2)(a), Florida Statutes, provides as follows:

Except as otherwise provided in this section, there shall be no material alteration or substantial additions to the common elements or to real property which is association property, except in a manner provided in the declaration as originally recorded or as amended under the procedures provided therein. If the declaration as originally recorded or as amended under the procedures provided therein does not specify the procedure for approval of material alterations or substantial additions, 75 percent of the total voting interests of the association must approve the alterations or additions before the material alterations or substantial additions are commenced. This paragraph is intended to clarify existing law and applies to associations existing on July 1, 2018. [Emphasis added]

Prior to the 2018 amendment, §718.113(2), Florida Statutes, did not expressly provide that the approval must be obtained before the material alteration or substantial addition was commenced. However, in a recent decision by the Third District Court of Appeal, the Court held that approval was required before the material alteration or substantial additions were commenced even before the language of §718.113(2), Florida Statutes, was amended to include the advance approval requirement!

In Bailey v. Shelborne Ocean Beach Hotel Condominium Association, Inc., Nos. 3D17-559, 3D17-01767 (Fla. 3d DCA July 15, 2020), unit owners brought a claim against their association alleging that the association violated §718.113(2), Florida Statutes, by failing to obtain the approval of the membership before commencing a large construction project which, they argued, constituted a material alteration to the common elements. Later, both parties agreed that all but two of the alleged “material alterations” actually constituted necessary maintenance that the association was authorized to commence without a vote of the membership.

The association alleged that the remaining two construction items were also necessary maintenance, which was an allegation the unit owners disputed. The trial court held that the remaining two alleged material alterations were valid notwithstanding whether they were necessary maintenance or material alterations because the association eventually obtained the approval of the membership (presumably after the fact). Therefore, the trial court reasoned it did not need to make a determination as to whether the two items were material alterations since the membership approved them, albeit in a tardy fashion.

On appeal to the Third District Court of Appeal, the unit owners challenged the trial court’s decision arguing that the statute required the association to obtain approval for material alterations before it commenced the work. Therefore, the plaintiff unit owners argued that the membership could not provide their consent and approval posthumously. As the construction project at issue took place between 2010 and 2016, the applicable version of §718.113(2) did not include the express requirement that approval be obtained before material alterations are commenced. However, the Court still held that the portions of a construction project that do not constitute necessary maintenance must be approved prior to commencement.

The court explained that “based on the structure of the statute, the 75 percent approval requirement is a condition necessary to overcome the statute’s clear prohibition, insofar as any of the construction work amounts to material alteration or substantial additions.” However, because the trial court did not rule on whether the two items at issue were material alterations or necessary maintenance, the Court was unable to determine whether a vote of the members was pre-required and remanded the case to the trial court for further proceeding to determine the nature of the two construction items.

Because the Court did not make a final determination whether the two construction items constituted necessary maintenance, the Court did not address the remedy for the association’s failure to obtain the advance approval of the membership. Additionally, the law fails to address the remedy when an association does not obtain membership approval before commencing a project.

In cases of material alterations already completed which required the advance approval of the membership, the present version of §718.113(2), Florida Statutes leaves no room whatsoever for the court to order an association to posthumously acquire the membership vote or put things back the way they were. Rather, the only remedy that appears available to the court would be to restore the common elements to its pre-existing state (or as close as can be accomplished under the circumstances), which explains why a legislative fix to §718.113(2), Florida Statutes, to provide for additional remedy would be helpful.

There is a very important lesson to be gleaned from the Bailey case. If your association is considering a material alteration of any kind, then the association would be wise to attain the required approval before commencing the project to avoid a successful legal challenge. If the association fails to obtain the required approvals before commencement of the project, in the event of a legal challenge, the association may well be required to undo whatever alterations were made to the common elements as Bailey suggests this was the case even before the relevant statute was amended. This can result in significant expense to the association, not to mention having to explain what happened to many irate unit owners.

 


Remember, prior to commencing any material alteration or substantial addition, be sure to consult your association’s attorney to ensure you comply with the requirements of the Florida law and your association’s governing documents.

1200 Park Central Boulevard South, Pompano Beach, FL. Tel: 954.928.0680
9121 North Military Trail, Suite 200, Palm Beach Gardens, FL. Tel: 561.241.4462
1211 N. Westshore Boulevard, Suite 409, Tampa, FL. Tel: 813.375.0731

 

 

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ANOTHER STUNNING GRAND JURY REPORT ABOUT FLORIDA CONDOMINIUMS  By Eric Glazer, Esq.

ANOTHER STUNNING GRAND JURY REPORT ABOUT FLORIDA CONDOMINIUMS By Eric Glazer, Esq.

  • Posted: Jan 11, 2022
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ANOTHER STUNNING GRAND JURY REPORT ABOUT FLORIDA CONDOMINIUMS

By Eric Glazer, Esq.

I’ll tell you something – I give a lot of credit to Kathy Fernandez Rundle, The State Attorney for Miami-Dade County.  She actually prosecutes cases of condo fraud, years ago she assembled a grand jury to make recommendations to the state legislature regarding condo crimes, kickbacks, conflicts of interest and the grand jury’s findings turned into legislation ———- and now, in light of the tragedy in Surfise at The Champlain Towers collapse where 98 innocent people lost their lives —– she assembled another fact finding grand jury, this time to investigate the laws regarding inspections of our buildings and how we waive  reserve funds.

The last Miami Dade Grand Jury wrote a scathing report regarding condo crime, saying it was rampant — and people get on the board just to divert the condo’s business to their relatives or even their own companies.  Well, this Grand Jury pulled no punches either.

As you know, the current law allows all condos the opportunity to waive the full funding of reserve accounts for major repairs or replacements.  All it takes is a lousy vote of a majority of a quorum of the owners who attend a meeting.  So, if in your 100 unit condo, a quorum of owners is typically 50 or less.  So, if 50 or more people show up either in person or by proxy, a majority of them can change the budget to completely exclude reserves, and as we know it’s typically done year after year after year.

Here is what the Grand Jury said about that:

“We Are At A Loss To Understand Why Such Language Would Even Be Included In The Florida Condominium Act.”  They eventually said that at a minimum, it should at least require a 70% vote of the owners to waive reserves.  So, you can rest assured that this one finding by the grand jury will work its way into new condo legislation in the next 2 months as the Florida Legislature is now in session. It’s going to become real difficult real soon, to completely refuse to fund your reserve account.  Surprisingly,  the grand jury didn’t say a word about requiring properly licensed personnel to do the reserve  account analysis each year., instead of joe the butcher, fred the cab driver and joan the teacher, each of whom are not qualified to do the reserve analysis.

In terms of the 40 year certification process for Dade and Broward, The Grand Jury recommended that buildings should be given a  2 year advanced notice to perform the 40 year inspection.  And of course 40 years is way too long for the first inspection.   The first inspection and certification should be 10 – 15 years after the building is constructed , and the condominium inspection should be updated every 10 years.  I think you can rest assured  that The Florida Legislature will probably make this a law throughout the state, not only in d\Dade and Broward counties.  In fact, a bill has already been filed in the senate that would require the inspection of all condos in the state over 3 stories, after 30 years and every ten years thereafter.

As the law stands right now in Dade and Broward —- for the 40 year certification — the inspection only involves the structural and electrical issues.  Well, you can throw that right out the window according to this grand jury.  going forward,

 

The Grand Jury recommends that all of the following components must pass inspection:

roof, structure, fireproofing and fire protection systems, elevators, heating and cooling systems, plumbing, electrical systems, swimming pool or spa and equipment, seawalls, pavement and parking areas, drainage systems, painting, irrigation systems.  This is a much more comprehensive and much more expensive inspection report than what we have now.   Condos better get ready to put these costs into their budgets if this legislation passes.

Even the qualifications of the people doing the certifying would change.    The Grand Jury wants any engineer certifying a building in connection with an inspection —— must have previously designed and inspected at least 3 buildings of the same or greater height as the building to which is to be recertified.

The Grand Jury opined that building officials must require proof of waterproofing and painting every 10 years.  They specifically found that ” a failure of condo boards to implement much needed repairs and maintenance has led to unsafe building structures throughout South Florida.  They reminded everyone that associations who don’t comply with the insurance company’s requirement of routine maintenance may result in a denial of the claim.”

They even recommended that building officials should check to see if the condominium is performing routine maintenance and condo boards should be required to file a document certifying that regular routine maintenance has been conducted in the last 12 months.

And thankfully, The Grand Jury believes that the education requirement for board members be expanded.  As you know, I drafted Senate Bill 394 filed by Anna Maria Rodriguez and House Bill 547 filed by Representative David Borerro, The bill would require board members to get certified by taking an educational class rather than getting certified by signing a silly form.  Florida would be the first state in the country to require that.  That would be my legacy and I have my fingers crossed.

All I can say is……when you factor in the insane rise in the price of insurance, and the changes we know are coming in this legislative session, it’s about to get a lot more expensive to live in your condominium.  Get ready to buckle up and hold on.  It’s going to be a bumpy ride.

To view the actual Grand Jury report click here.

 

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Condo Craze and HOAs Radio Show on 850 WFTL every Sunday 11am – 12pm  Is now live on YouTube!

Condo Craze and HOAs Radio Show on 850 WFTL every Sunday 11am – 12pm  Is now live on YouTube!

  • Posted: Jan 10, 2022
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Condo Craze and HOAs Radio Show on 850 WFTL every Sunday 11am – 12pm  Is now live on YouTube!

Condo and HOA Boards and Owners you can now watch the show ask questions.  Each Sunday morning we will bring to you topics and discussions for out industry.

Subscribe to our YOU TUBE PAGE. 

Condo Craze and HOAs In 2009, Eric began a career in radio, starting and hosting the weekly Condo Craze and HOAs Radio Show on 850 WFTL. Eric answers questions from the callers week in and week out and the show has become incredibly popular throughout the state. For more information, and to listen to past shows.

Eric M. Glazer is a native of Brooklyn, New York Mr. Glazer obtained his B.A. in Political Science at New York University. While at N.Y.U., Mr. Glazer was employed in the Kings County District Attorney’s Office. Mr. Glazer obtained his Juris Doctorate at the University of Miami School of Law. In 1994 he established Glazer and Associates, P.A. and has focused his career on representation of community associations and their members.

Visit our Website: https://www.condocrazeandhoas.com Board Certification Classes Eric has certified over 12,000 board members in the State of Florida, who are now eligible to serve on either a condominium or homeowner association board.

 

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Selective Enforcement: A Grossly Misunderstood Concept by KBRLegal

Selective Enforcement: A Grossly Misunderstood Concept by KBRLegal

  • Posted: Jan 06, 2022
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Without exception, the affirmative defense of “selective enforcement” is one of the most misunderstood concepts in the entire body of community association law. How often have you heard something like this: “The board has not enforced the fence height limitation, so it cannot enforce any other architectural rules”? Simply put, nothing could be further from the truth.

When a community association seeks to enforce its covenants and/or its board adopted rules and regulations, an owner can, under the right circumstances, assert an affirmative defense such as the affirmative defense of selective enforcement. An affirmative defense is a “yes I did it, but so what” type of defense. In civil lawsuits, affirmative defenses include the statute of limitations, the statute of fraudswaiver, and more. However, it’s just not as simple as that. For example, a fence height limitation is a very different restriction than a required set back. Under most if not all circumstances, the failure to enforce a  fence height requirement is very different from the failure to enforce a setback requirement. Ordinarily, the affirmative defense of selective enforcement will only apply if the violation or circumstances are comparable, such that one could reasonably rely upon the non-enforcement of a particular covenant, restriction, or rule with respect to their own conduct or action.

In the seminal case of Chattel Shipping and Investment Inc. v. Brickell Place Condominium Association Inc., 481 So.2d 29 (FLA. 3rd DCA 1986), 45 owners had improperly enclosed their balconies. Thereafter, the association informed all of the owners that it would thereafter take “no action with respect to existing enclosed balconies, but prohibit future balcony constructions and enforce the enclosure prohibition.” As you might have already predicted, nevertheless, thereafter an owner of a unit, Chattel Shipping, enclosed their unit; and the association secured a mandatory injunction in the trial court requiring the removal of the balcony enclosure erected without permission. The owner appealed. In the end, the appellate court disagreed with the owner who argued that the association decision to enforce the “no enclosure” requirement only on a prospective basis was both selective enforcement and arbitrary. The court held that the adoption and implementation of a uniform policy under which, for obvious reasons of practicality and economy, a given building restriction will be enforced only prospectively cannot be deemed “selective and arbitrary.”

In Laguna Tropical, A Condominium Association Inc. v. Barnave, 208 So. 3d 1262, (Fla. 3d DCA 2017), the court again used the purpose of the restriction in its determination of whether the association engaged in selective enforcement. In Laguna Tropical, a rule prohibited floor covering other than carpeting unless expressly permitted by the association. Additionally, the rule provided that owners must place padding between the flooring and the concrete slab so that the flooring would be adequately soundproof. In this case, an owner installed laminate flooring on her second floor unit and the neighbor below complained that the noise disturbed his occupancy. As a result of the complaint, the association demanded that the owner remove the laminate flooring. However, the owner argued selective enforcement because the association only enforced the carpeting restriction against the eleven exclusively upstairs units in the condominium. The court noted that the remaining units in the condominium were either downstairs units only, or were configured to include both first-floor and second-floor residential space within the same unit.

Again, the court looked to the purpose of the prohibition on floor coverings other than carpet and found that the prohibition was plainly intended to avoid noise complaints. Therefore, no selective enforcement was proven because no complaints were shown to have arisen regarding any units except the eleven exclusively upstairs units.

What about cats and dogs? In another case, Prisco v. Forest Villas Condominium Apartments Inc., 847 So. 2d 1012 (Fla. 4th DCA 2003), the Fourth District Court of Appeals heard an appeal alleging selective enforcement regarding the association’s pet restrictions. The association had a pet restriction which stated that other than fish and birds, “no pets whatsoever” shall be allowed. In this case, the association had allowed an owner to keep a cat in her unit, but refused to allow another owner to keep a dog. The association argued that there was a distinction between the dog and the cat. However, on appeal, the court found that the restriction was clear and unambiguous that all pets other than fish and birds were prohibited. Therefore, the court reasoned that the facts which make dogs different from cats did not matter because the clear purpose of the restriction was to prohibit all types of pets except fish and birds. In other words, the court held that the plain and obvious purpose of a restriction should govern any interpretation of whether the association engaged in selective enforcement.

If an association has a “no pets” rule and allows cats, must it allow dogs, too? There is a long line of arbitration cases that have distinguished dogs from cats and other pets for purposes of selective enforcement. For example, in Beachplace Association Inc. v. Hurwitz, Case no. 02-5940, a Department of Business and Professional Regulation Division of Florida Condominium Arbitration case, the arbitrator found, in response to an owner’s selective enforcement defense raised in response to the association’s demand for removal of a dog, that even though cats were allowed, that comparison of dogs to cats was not a comparative, like kind situation. Further the arbitrator found that cats and dogs had significant distinctions such as barking versus meowing, and therefore the owner’s attempted use of the selective enforcement argument failed.

But, in Hallmark of Hollywood Condominium Association Inc. v. Andrews, Case 2003-09-2380, another Department of Business and Professional Regulation Division of Florida Condominium Arbitration case, the learned arbitrator James Earl decided that because the association has a full blown “no pets of any kind”  requirement and since cats were allowed, then dogs must be allowed, too. In other words, the defendant owner’s waiver defense worked. But, the arbitrator wisely noted in a footnote as follows: “The undersigned notes that there is a long line of arbitration cases that have distinguished dogs from cats and other pets for purposes of selective enforcement. However, the fourth district court of appeal has ruled that where the condominium documents contain particular language prohibiting all pets, any dissimilarity between dogs and cats is irrelevant and both must be considered. See Prisco.” The distinction between the two arbitration cases could be explained because of timing in that the 4th DCA’s decision in Prisco was not yet published when Hurwitz was decided.

From these important cases, it can be gleaned that

(i) even if an association has ignored a particular rule or covenant, that by giving written notice to the entire community that it will be enforced prospectively, the rule or covenant can be reinvigorated and becomes fully enforceable once again (though of course, prior non-conforming situations may have to be grandfathered depending on the situation),

(ii) if an association or an owner is seeking an estoppel affirmative defense, they must be sure all of the necessary elements are pled,

(iii) at times a court will look to the purpose of the rule itself where it makes sense to do so, and

(iv) dogs and cats are different, but they are both considered “pets.”

Remember to always discuss the complexities of re-enforcement of covenants and rules and regulations that were not enforced for some time with your association’s legal counsel in an effort to mitigate negative outcomes. The process (commonly referred to as “republication”) can restore the viability of a covenant or rule that may have been waived due to the lack of uniform and timely enforcement.

 


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

1200 Park Central Boulevard South, Pompano Beach, FL. Tel: 954.928.0680
9121 North Military Trail, Suite 200, Palm Beach Gardens, FL. Tel: 561.241.4462
1211 N. Westshore Boulevard, Suite 409, Tampa, FL. Tel: 813.375.0731
  • Assessment collections
  • Construction defect claims
  • Contract drafting and negotiation
  • Cooperatives
  • Covenant enforcement
  • Fair Housing
  • Land Use and Zoning
  • Litigation and Arbitration
  • Master/ Sub Association Issues
  • Pre and Post Turnover Planning
  • Real Estate and Title Concerns
  • Review and amendment of covenants
Kaye Bender Rembaum is a full service commercial law firm devoted to the representation of more than 1000 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.your interest in Kaye Bender Rembaum.

 

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11 Questions to Ask Before Hiring a Public Adjuster in South Florida by Stellar Adjusting

11 Questions to Ask Before Hiring a Public Adjuster in South Florida by Stellar Adjusting

  • Posted: Jan 04, 2022
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If you’re hiring a public adjuster, it’s important to keep in mind that this person is going to be working for you. You’re the boss, so you’ve got to think like a boss. That means interviewing them and asking the right questions. We’ve listed eleven questions that you should ask any public adjuster before you make the hire.

 

 

WHY HIRE A PUBLIC ADJUSTER?

hiring a public adjusterBefore we talk about how to hire a public adjuster, let’s talk for a second about why you would want to hire one in the first place. The short answer is that you hopefully will never need to hire one. However, if your home or business is damaged, you’ll need to fire an insurance claim, which means providing the insurance company with an estimate of the damages. If the claim is very large, or if the insurance company thinks they can get away with paying less, they will send an insurance adjuster to draw up their own estimate.

When this happens, you have a few options. You can accept the insurance company’s offer, you can sue the insurance company, or you can hire a public adjuster to make a counteroffer. Accepting the company’s offer isn’t always the best idea. In some cases, you may be asked to settle for far less than the actual cost of damages. However, suing the insurance company can get expensive. They have teams of corporate lawyers, and you’ll end up spending a lot of money on your own legal case. Meanwhile, you’ll receive no funds during the legal process, so you’ll have to repair your home or business and pay your lawyer out of pocket.

A public insurance adjuster offers a great compromise. They can get you a better settlement, and you won’t have to pay out of pocket. For more information, read our guide on when to contact a Florida public adjuster.

 

1. HOW LONG HAVE THEY BEEN IN BUSINESS?

There’s nothing wrong with being new to the business. Even the biggest, most prestigious firms once started as a single adjuster opening their own small business. But if someone is just starting out in their own business, you’d expect them to have previous experience working for another firm. If they haven’t, steer clear.

2. ARE THEY PART OF A TEAM?

A single public adjuster, even a very well-qualified one, can only be so knowledgeable. A team of adjusters can pool their knowledge and help each other out, leading to better results for their clients.

3. ARE THEY LICENSED IN FLORIDA?

If you’re in another state, this applies to your state as well. An unlicensed public adjuster isn’t just breaking the law by practicing without a license. They can also put you at risk, since there’s no guarantee that they’re even competent.

4. DO THEY HAVE EXPERIENCE WITH CLAIMS LIKE YOURS?

For any qualified public adjuster, south Florida hurricanes should be par for the course. But if you’re dealing with an unusual claim – for example, if a car ran off the road and into your living room – you’ll want to know that your public adjuster is qualified to deal with your claim’s quirkier aspects.

5. HOW DO THEY GET PAID?

A public insurance adjuster should only get paid when you get paid, taking a percentage of your claim. If your adjuster is asking for an up-front fee, don’t do business with them. What they’re doing is unethical.

6. DO THEY HAVE EXPERIENCE DEALING WITH MORTGAGE LENDERS?

Depending on your situation, you may still owe money to a mortgage lender, and they’re most likely not going to be patient with you while the insurance company handles your claim. An experienced public adjuster can oftentimes serve as an intermediary to help you deal with your mortgage lender’s demands.

7. WHO WILL PREPARE MY CLAIM?

The opposite problem of working with too small a team is working with a big firm that farms out their work to third-party contractors. So you can be paying for a prestigious name, but getting freelance service. Make sure that your public insurance adjuster will be personally involved with your claim.

8. CAN I STAY INVOLVED WITH MY CLAIM?

Some public adjusters prefer that their clients not communicate directly with the insurance company. Others are comfortable to share these responsibilities with their clients. There’s no right or wrong answer to this question, but it’s important that you and your adjuster are on the same page here.

9. CAN THEY PROVIDE LOCAL REFERENCES?

The average person may never need a public adjuster’s services or may need them once or twice at most. If their adjuster did a good job, they’re going to remember it. Ask your prospective public adjuster for references. If they’re not prepared to offer any, scratch them off your list.

10. HOW MANY CLAIMS ARE THEY HANDLING?

Sometimes, in the aftermath of a natural disaster, public adjusters can become overwhelmed with claims from a large number of people. In this case, a qualified, competent adjuster may simply be too busy to give your claim the individual attention it deserves.

11. WHAT ARE THEIR ERRORS AND OMISSIONS POLICY?

Errors and Omissions is the insurance industry’s version of malpractice insurance. It ensures that if your public adjuster makes a mistake that costs you money, they’ll be able to compensate you. Every licensed public adjuster should carry a policy. If they’re not willing to share this information with you, tell them to take a hike.

 

On SFPMA: View Our Claims Page for all your Damage Needs. Find Law Firms, Adjusters and Roofing Companies ready to help

 

HOW TO FIND A CLAIMS ADJUSTER IN FLORIDA

If you’re hiring a public adjuster in Florida, consider hiring Stellar Public Adjusting. Our qualified adjusters are experienced in Florida home and business claims, and we don’t hire out our work to independent contractors. When your adjuster shows up to create your claim, you can rest assured that this is the same person who will be dealing with the insurance company on your behalf.

Use our web form to contact us today. If you have an urgent problem that requires immediate assistance, call our office at 305-570-3519.

Andria Rosendahl
Public Adjuster
2450 NE Miami Gardens Drive, Suite 200, Miami Florida 33180
Cell: 305-710-7922
Fax: 305-873-8719
E: Andria@stellaradjusting.com
W: www.stellaradjusting.com
Check Out Our Blog At: www.stellaradjusting.com/blog/
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DECONSTRUCTING THE CONSTRUCTION CONTRACT A Plain English Explanation by Kaye Bender Rembaum

DECONSTRUCTING THE CONSTRUCTION CONTRACT A Plain English Explanation by Kaye Bender Rembaum

  • Posted: Dec 19, 2021
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DECONSTRUCTING THE CONSTRUCTION CONTRACT A Plain English Explanation

by Kaye Bender RembaumRembaum’s Association Roundup

If your community association has engaged the services of a contractor, engineer, architect, or other construction or design professional to perform a maintenance, repair, replacement, or capital improvement project, you know the process can be overwhelming. No matter the mad rush to execute the contract as soon as possible, when beginning such projects, no matter how big or small, the board needs to ensure the contract adequately protects the association. Even the smallest of projects can have unexpected, disastrous consequences. A few of the more common provisions which every board member should understand follow.

The Indemnity Provision

In today’s extremely litigious world, it is important that your association does what it can to protect itself against unforeseen claims that can arise out of the contractor’s performance of the work. For example, assume a crane fell on the building being repaired, the contractor accidentally damaged the elevator shaft, or worse still, a life is lost. An indemnity provision provides that the contractor will indemnify, defend, and hold harmless the association from and against claims arising out of or resulting from the performance of the work by the contractor or any of its employees, subcontractors, suppliers, etc.

Indemnification provisions can be tricky to understand. The general contractor, engineer, and design professionals (aka the architect) may seek to avoid and/or cap their overall liability. Even a small contract can have significant consequences if the negligence of the contractor causes significant damage or injury.

Rarely does the inclusion of a single word have disastrous consequences; however, a recent trend we have seen in many contracts is the contractor requiring the indemnity obligation to be limited only to damage caused by the contractor’s “sole” negligence. As events which cause loss or damage rarely occur by the “sole” actions of an individual, this provision significantly diminishes the contractor’s responsibility to indemnify the association. The association should look out for any indemnity provision which provides that the contractor is only responsible to indemnify for its “sole” negligence. Without getting into too much complexity, Florida is a “contributory negligence” state. This means each party is responsible to satisfy a judgment against them in proportion to their responsibility for the blame. So, if the contractor is found to be 33 percent responsible for an accident, then it pays 33 percent of the final judgment award. But, if the contract indemnity provision required sole negligence, the contractor would pay nothing at all because the accident was not “solely” caused by the contractor. Youch!

Another trend we see is the contractor limiting its liability to damage caused by its “gross negligence,” which by definition excludes “simple negligence.” As a brief explanation, simple negligence is when a person fails to take reasonable precautions that any prudent person would take in similar circumstances and their actions cause harm (for example, a driver who runs a stop sign and causes an accident). Gross negligence is extreme indifference or reckless disregard for the safety of others (for example, driving 100 mph in a parking lot and injuring a pedestrian). As any claims arising out of the work are likely to result from the contractor’s simple negligence, this heightened standard is not favorable to the association.

If the contractor is insistent on limiting its liability, the association may consider limiting the contractor’s indemnification obligation to the maximum payable under the contractor’s insurance policy. This way, the contractor is not on the hook for unlimited liability, but the association has some decent protection as claims can be covered up to the maximum amount payable under the insurance policy. However, in the event of a catastrophic loss or casualty event, even the amount payable under the insurance policy may not be enough to protect the association.

In addition to these limitations, “design professionals” have the added benefit of statutory authority to further limit their liability in a contract (they must have better lobbyists). Section 558.0035, Florida Statutes, provides a procedure by which a design professional can exclude any “individual liability” for damages resulting from negligence occurring within the course and scope of a professional services contract. In other words, the design professional will not be personally liable to the association for any negligence in its design if the contract includes a provision that excludes such personally liability. Section 558.002(7), Florida Statutes, defines a “design professional” as a person who is licensed in the state of Florida as an architect, landscape architect, engineer, surveyor, geologist, or a registered interior designer. Therefore, if your association is contracting with any of the foregoing design professionals, you will likely need to negotiate this provision.

You should also be aware that disputes over the enforceability of the indemnification clause do not automatically include prevailing party attorneys’ fees unless the indemnification provision specifically provides that, in the event of a dispute concerning the applicability of the indemnification, the prevailing party must be indemnified for their attorneys’ fees, costs, and expenses incurred in enforcing their right to be indemnified.

Insurance Provisions

To ensure there are sufficient funds to satisfy an indemnity judgment in favor of the association, it is important that the association require the contractor to carry certain minimum insurance. Therefore, the contract should contain a clause which provides that the contractor will maintain such general liability insurance as will protect the contractor and the association from claims that may arise out of or result from the contractor’s operations under the contract documents in the amounts set out in the contract. Additionally, the association should ensure that the contractor obtains sufficient workers’ compensation coverage.

There are a couple of terms with which you should be familiar:

  • Certificate Holder: The certificate holder is merely entitled to the proof of insurance, nothing more. When the policy holders have their insurance agents issue a certificate of insurance to the entity that hired the contractor to do the work, that entity becomes a certificate holder. It is simply the contractor’s way of saying, “I have insurance.” Certificates show that the contract has the insurance policies in the limits shown on such certificate. It also provides that the certificate holder is entitled to know if the policy lapses.
  • Additional Insured: An additional insured is provided the same coverage and rights under the policy as the named insured. In other words, when you become an additional insured, you are entitled to the same insurance protections as the original policy holder. Therefore, in the event of loss, the association may file a claim on the contractor’s policy through its status as an additional insured.

Thus, the contract should not only require that the contractor carry insurance but also provide that the contractor is obligated to provide a certificate of insurance evidencing the insurance coverage and containing an endorsement listing the association as an “additional insured.”

In addition to the insurance requirements for the contractor, your association may consider purchasing builder’s risk insurance for the project. Builder’s risk insurance is designed to protect the owner of a construction site from loss and damage. This should be further discussed with the association’s insurance agent.

Paying the Contractor

During a major construction project, the association’s contractor will likely be working with several subcontractors to complete the work. The process for payments in such projects is set out in §713.13, Florida Statutes. (For a more detailed discussion on the construction payment process, you can read my prior article, “Construction Progress Payments: The Hidden Trap,” at rembaumsassociationroundup.com, originally published in the Florida Community Association Journal, February 2020 edition.)

By way of brief explanation, when the project commences, the association records a “Notice of Commencement” identifying the contractor and the legal description of where the work is being performed. The purpose of the Notice of Commencement is to inform all subcontractors and suppliers that if they intend to provide goods and/or services to the property, and if they want to have proper legal standing to record a lien against the property in the event they are not paid, the subcontractor and/or supplier must serve a “Notice to Owner” to the association. The Notice to Owner informs the association of all subcontractors working under the general contractor and all suppliers who provide suppliers and materials to the job site.

In exchange for payments to the general contractor, the general contractor provides the association with “partial payment affidavits” for each payment and a “final payment affidavit” upon conclusion of the work at hand. The subcontractors and suppliers provide the association “partial releases” for the payment received from the general contractor using the general contractor as the delivery conduit to deliver the partial release to the association. This method ensures that subcontractors and suppliers cannot later claim that they were not paid. However, in order to ensure this protection, it is important that the contract requires the contractor to provide the subcontractors’ and suppliers’ partial releases contemporaneously with the association’s progress payment. With the partial releases in hand, in the event the contractor does not pay the subcontractors and suppliers, the association is fully protected.

Some general contractors insist on providing the association with the partial releases from the subcontractors and suppliers one payment behind. This should be a red flag to your association because it means if the contractor fails to pay the subcontractors and suppliers after receiving payment from the association, the association will still have to pay the subcontractors and suppliers. In such event, the association will end up having to pay twice for all or part of the same work.

Prevailing Attorney’s Fees

Another important consideration is the prevailing party attorneys’ fees provision of the contract. An attorneys’ fee provision generally provides that in the event of litigation to enforce the terms of the contract, the prevailing party is entitled to recover their attorneys’ fees. However, this provision must be carefully worded to ensure that your association will be able to recover its attorneys’ fees.

Termination

Most contracts provide that the association may terminate the contract for cause. The termination for cause provision should include examples of conduct by the contractor which would entitle the association to terminate the contract for cause. In addition to termination for cause, we recommend the inclusion of a “without cause” termination provision. This provision gives the association an out in the event the contractor is not working out, but the contractor’s conduct does not rise to the level which would allow dismissal for cause.

Generally, if an association terminated an agreement without good cause, and unless otherwise spelled out in the contract, the contractor would likely be entitled to approximately 15 to 22 percent of the contract price for its anticipated lost profit and overhead.

Payment and Performance Bonds

Another way the association can protect itself is by requiring the contractor to obtain “payment and performance bonds,” which are most often purchased together as a set. While doing so typically adds three to five percent to the total contract price, it is well worth it. In addition, if the contractor is not able to provide such a bond because the bonding companies will not bond the contractor, it is very telling because not every contractor is bondable.

A “performance bond” is a surety bond issued by a bonding company or bank to guarantee the satisfactory completion of the work by the contractor. It acts to protect the association in the event the contractor fails to complete its contractual obligations.

A “payment bond” guarantees the contractor will pay all laborers, material suppliers, and subcontractors engaged by the contractor for the work. In the event the association pays the contractor, but the contractor fails to pay the laborers, material suppliers, and/or subcontractors, the surety will step in to pay same.

Force Majeure

Many contracts contain force majeure language which provides that the parties will not be responsible to the other if they are unable to fulfil the terms of the contract due to events beyond the control of the parties. Most often, a force majeure event adds delay to the targeted project completion date and avoids claims for breach of contract due to the delay. Such events may be acts of God, flood, fire, hurricanes, war, invasion, terrorist acts, government order or law, actions, embargoes, or blockades, etc. Of late, for reasons that need no explanation, pandemics are added to this list, too.

The above discussion is not meant to be all inclusive. There are so many other important provisions to consider, but space is limited. To ensure your association is protected, the association should always rely on its legal counsel to review the association’s contracts and make the necessary revisions to assist in the  protection of the association.

The Kaye Bender Rembaum Team Remains Available To You and Your Community Association

Happy Holidays from all of us at Kaye Bender Rembaum

 


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

1200 Park Central Boulevard South, Pompano Beach, FL. Tel: 954.928.0680
9121 North Military Trail, Suite 200, Palm Beach Gardens, FL. Tel: 561.241.4462
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Five Simple Steps To Get Your Home RentReady 

Five Simple Steps To Get Your Home RentReady 

  • Posted: Dec 16, 2021
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Five Simple Steps To Get Your Home RentReady

Follow these five simple steps to a Rent Ready home. Many property managers and landlords in Florida believe that a quick sweep through the home makes it a rent ready home for a new resident.
But this is not enough as things are not as simple as they may seem. Here are five simple steps to ensure that your home is in tip-top shape and ready for a new occupant:
Step One: ReKey the Locks
Yes, you must re-key the locks between each New Tenant. Sure, you collected the keys from the the last tenant, but did they make spares? All outside locking doors should be re-keyed between each resident. Additionally, rotate the codes on any garage doors, access gates, exterior property gates, and mailboxes.
Step Two: Maintenance Assessment
A thorough maintenance assessment is absolutely vital. If you can’t do it yourself, we can send a professional through to assess any items that may need repair. They should evaluate all accessible pipes and electrical functionality, light bulbs and fixtures.
Moreover, they must check on garbage disposals, cabinets, windows and screens, window treatments, heating and cooling devices, doors, etc. Last but not the least, the evaluation should also include checking and replacing furnace filters and batteries in smoke and carbon monoxide detectors. The more detailed evaluation, the better!
Step Three: Major Upgrades or Home Repairs
As we all know, extensive and costly repairs are tricky to complete with a resident in the home. Assess the condition of all flooring materials, paint, countertops, bathtub surrounds, major appliances, roofs, gutters, and chimneys/fireplaces.
If the bathrooms or kitchen is outdated it will certainly lower the RentalValue of your property. Now would be the time to make those changes and evaluate what increase in rent you could obtain for upgrades.
Step Four: Exterior Clean Up
Don’t just look inside, look outside, too! Haul any debris from the yard, trim the trees, prune the bushes, and cut the grass. A fresh coat of paint on the fence, or a new front door can make a big impact to rental potential. In-expensive lights, a large mirror in a dimly lit hallway are worth invest in enhancing your CurbAppeal!
Step Five: Professional Cleaning
A clean and neat look to the house makes all the difference in how the home shows and how quickly it rents. Even the best Pembroke Pines tenants don’t often clean well enough.
Hire a professional cleaning service for the job and a truck mounted steam clean service for the carpets and any furniture in need of deep-cleaning. Walk around the house and see if it is the sort of house you would like to rent? And then get busy cleaning!
Getting your house rent ready for the next rotation can be a little more difficult than just taling a quick sweep around the property. RealPropertyManagementPremier can help you get your property in tip-top shape and ready without any hassles.
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Call (954) 800 4433 and talk to our experienced property manager today, if you need help in RentingYourPembrokePinesProperty easily.
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