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Find Blog Articles for Florida’s Condo, HOA and the Management Industry. 

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

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

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

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

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

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

 

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If your residential, commercial, or industrial properties have property damage, our Insurance Claims Attorneys can help with everything from A-Z on hurricane claims. by Cohen Law Group.

If your residential, commercial, or industrial properties have property damage, our Insurance Claims Attorneys can help with everything from A-Z on hurricane claims. by Cohen Law Group.

Cohen Law Group would like to remind all Property Managers and CAMs that our firm has handled thousands and thousands of property damage insurance claims in Florida. We have decades of experience handling hurricane claims that have been denied, delayed, or reduced.

If you are unsure if your property sustained damage as a result of Hurricane Idalia you should ask for an inspection by a qualified contractor, estimator or building inspector to assess whether hurricane-force winds damaged or compromised the roofing system and building envelope. Many companies offer this initial inspection free of charge. Given the complexities of a large loss claim, consider consulting with an attorney experienced in handling commercial insurance claims for condominiums and homeowner’s associations.

 

We can connect you with top professionals in the industry to evaluate hurricane damage and we can assist you with handling an insurance claim the right way– today.

 

Here’s more information on how we can help you:

Cohen Law Group is certified through the state of Florida for Property Manager and CAM Continuing Education Credits/Classes. We have a one to three-hour CE class called “A CAMs/Property Managers Guide to Property Damage Insurance Claims”

We can schedule a free lunch and learn with your CAMs and will provide an overview of our suggestions and strategies as well as some examples of our vast experience with Residential Property Damage and Commercial Large Loss.

If your residential, commercial, or industrial properties have property damage, our Insurance Claims Attorneys can help with everything from A-Z on hurricane claims.

Please call us today at 850-318-7474 

Here are some tips for property owners

immediately after a hurricane:

You have 1 year from the date of loss to report the claim. Please do not hesitate in reporting the claim immediately as you are aware there is storm damage. Believing the damages are below your deductible is not a defense to this and the insurance company will use every day you wait against you later.

Thoroughly document all emergency repairs before and after they are completed. Insurance companies will try to get out of paying for these services if they believe they do not have sufficient information.

If you are displaced from your home or property, please keep all invoices and receipts showing costs that you incur. Likewise, if you have any damaged personal property, please take photographs of it before you throw it away.

Insurance companies cannot cancel your policy while you have an open claim. You should speak to an attorney to understand your rights. Insurance companies will routinely request that you sign documents and give statements to them that can and will be used against you later.

489.147 Prohibited property insurance practices.—

(1) As used in this section, the term:

(a) “Prohibited advertisement” means any written or electronic communication by a contractor which encourages, instructs, or induces a consumer to contact a contractor or public adjuster for the purpose of making an insurance claim for roof damage, if such communication does not state in a font size of at least 12 points and at least half as large as the largest font size used in the communication that:

1. The consumer is responsible for payment of any insurance deductible;

2. It is insurance fraud punishable as a felony of the third degree for a contractor to knowingly or willfully, and with intent to injure, defraud, or deceive, pay, waive, or rebate all or part of an insurance deductible applicable to payment to the contractor for repairs to a property covered by a property insurance policy; and

3. It is insurance fraud punishable as a felony of the third degree to intentionally file an insurance claim containing any false, incomplete, or misleading information.

Harvey V. Cohen, President

Harvey Cohen Signature

     

At Cohen Law Group, It’s About Justice!

It’s more than a slogan, it’s our firm’s mantra. We are zealous in protecting your rights. We offer 24-hour availability through our answering service. Call us today.

(850)318-7474

Members of  SFPMA – https://sfpma.com/listing/cohen-law-group/

 

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After the Storm Passes, what should you and your Association do in a Natural Disaster

After the Storm Passes, what should you and your Association do in a Natural Disaster

After the Storm Passes, what should you and your Association do in a Natural Disaster

 

There is an eerie quietness that can often be felt after a disaster like a hurricane of flash flooding, the time after the rain has stopped but the sun still hasn’t returned. Returning to business as usual after your community has faced a natural disaster can be difficult, the responsibilities can seem endless but there are some steps you can take to ensure that your community is as strong and thriving as before.

2023 has been a challenging year in every regard, not the least of which has been related to the Atlantic Hurricane Season, the most active since 2005. With over 23 named storms, including eight hurricanes and over 24 tropical or subtropical cyclones, it’s easy to see why so many are patiently waiting for the storm season to come to a close. Officially over on November 30th, the damage done to many communities will continue to affect homeowners and HOA board members alike. We’ve previously discussed implementing a disaster plan for your community but what comes after the storm can be just as important.

Failure to immediately mitigate post storm damage can have detrimental consequences for homeowners and the community in general, which is why it’s tantamount that you are prepared to take quick decisive action after a storm and know the steps involved. Please check with your communities insurance agent and your licensed community staff to determine if your state has any specific laws regarding the association and its responsibilities after a natural disaster.

Communication Is Key

Following a storm, whether it be a hurricane or simple hail damage, communicating with homeowners is by far the most important and often overlooked step that the community association can take. Often an emotional and overwhelming time for any resident, damage to the homes in your community can take many forms and can be addressed in various ways so it’s important for your board to keep an open line of communication with your owners so they are aware what steps are being taken by your association and what they will need to be responsible for in the aftermath.

In some states the board’s first challenge may be to understand whether to look to the communities Declarations and Bylaws or to the State and Local laws to determine who is responsible for what. In Florida for instance, the Florida Condominium Act can assign certain responsibilities to the association that they would not normally be involved with and can be in direct opposition to existing declarations at the community. We highly recommend communicating regularly with members of your licensed local community staff and your insurance providers to ensure that you are doing all of the right things to ensure your communities return to harmony.

Inspect for Damage

You may want to start with the simple process of inspecting your community for damages. Buildings suffering damage should have been secured from further water intrusion, through temporary roofs, boarded windows, and sliding glass doors, which will need to be replaced. Construction debris from the storm should have been be removed or at least contained.

Every unit should have been inspected by the Association, preferably on several occasions, to ensure that there is no moisture to the interior of the units. Moisture detected, on areas such as wet carpets or soggy drywall, should have been removed. The drying process can typically be accomplished through interior climate manipulation through dehumidification, heating and/or air conditioning. The association’s insurance adjuster should be involved throughout the dry-out process. For more complex water intrusion dry out, an outside neutral party should also be involved.

Every association and unit owner should have contacted their insurance carriers to file insurance claims. Associations should ensure that every insurance carrier with potential responsibility has been put on notice. At this point, if the adjuster has not yet visited the premises, this should be immediately addressed with your insurance agent. Your insurance adjuster will attempt to document the site, but the association should document existing conditions by taking pictures and video of the damage.

Finding Experts for the Repairs

After all units have been inspected for damage and the appropriate representatives have been notified you can begin the process of finding contractors or storm damage experts to help start the repairs Associations with buildings that have incurred moderate to significant damage should retain an independent consultant such as an architect or engineer, with no financial stake in developing the repair specifications. Often, this will be an architect or structural engineer, and may even be a type of qualified consultant for particular items. Condominium documents often require a reconstruction plan to be prepared by an architect or engineer.

Contractors should be appropriately licensed in your state for the type of work they will be performing, carry adequate insurance, and so forth. Although time is of the essence in moving forward with hurricane damage repair projects, a great deal of money is involved and the association can best protect itself by ensuring that there is appropriate legal review of any contracts or other documents. General contractors and many specialty contractors must be registered with the state. Licenses and complaints against such entities can often be checked online or can be requested from your community management company if they are providing the contractors.

Making Emergency Repairs

In the event that homeowners have damages that pose additional risk or could lead to additional losses, it’s important to make some emergency repairs. Again knowing that communication and documentation are vital, try to document all of the necessary repairs and the steps taken to make those repairs, using photographs and dated records can help in the event that there is any dispute on the timeline or the necessity of the repair with insurance later.

In many cases the emergency repairs can be temporary and may require additional maintenance when the insurance company has settled on a permanent solution. These temporary repairs can include things like using a tarp on a leaking roof or adding plywood to broken doors and windows, and the cost may initially come out of the owners pockets but can be reimbursed at a later date by the insurance company.

The Vital Role of Insurance Professionals

Throughout this article and the process of rebuilding one thing remains constant, the need to be continually consulting with your insurance company and the experts they employee. Dealing with damage to your home is never pleasant and it can become almost impossible when the board needs to deal with their own home damage plus the overall community health and rebuilding. It is important to determine who insures which portion of the condominium property because the statute provides that the person or entity that insures the property is also the person or entity who repairs that portion of the property. Generally, any portion of the condominium property that must be insured by the association and which is damaged by a casualty or insurable event, will be repaired by the condominium association and the costs of such repair will be assessed as a common expense against all unit owners.  Unit owners are responsible for repairing any portions of the condominium property that it is required to insure and the cost of such repairs to be paid by the owner of the unit that suffered the damage.

In conclusion, if your condominium suffers damage due to a hurricane or another storm event, the association will need to consult with its insurance agent and its legal counsel to determine if the damage suffered was due to a casualty, or insurable event, and thereafter decide who will need to repair the damage and pay for the costs of such repair.  Prompt action must be taken to protect the condominium property and the association.  If your association needs further guidance on this issue, it should consult with its attorney or the knowledgeable management staff.

On SFPMA Members directory, find Law firms, Insurance agents, Public adjusters, roofing companies..

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STORM DAMAGE CLAIMS FOR YOUR CONDO AND HOA PROPERTIES! by SFPMA

STORM DAMAGE CLAIMS FOR YOUR CONDO AND HOA PROPERTIES! by SFPMA

  • Posted: Aug 29, 2023
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STORM DAMAGE CLAIMS FOR YOUR CONDO AND HOA PROPERTIES!

SFPMA & Members are ready to Handle Storm Damage & Claims for Condo and HOA Properties!

These Trusted Members are; Legal Firms, Public Adjusters, Roofing Engineering & Service Companies that work with you on Solutions to Storm Related Damage.

Use the Form On our website..Contact us Today!

 

Protect Your Condo & HOA This Hurricane Season!

The Florida hurricane season runs from June 1 through November 30. According to the National Oceanic and Atmospheric Administration (NOOA), this year is predicted to be another above-normal season.

The Hurricane season starts on June 1 but it’s never too early to prepare. Damage from a hurricane can be costly for all businesses and can pose hazards for you and your employees. Fortunately, there are ways that you can fortify your business against a hurricane to minimize losses and reduce risks for workers.

As part of “Planning Ahead” for a Disaster, the SBA encourages you to consider taking these simple steps to prepare: Assess your risk; Create a plan, Execute your plan. Statistics show that 25% of small businesses don’t re-open after a disaster. Visit the SBA’s Prepare for Emergencies website to learn more about how to prepare and recover if a disaster strikes.

NOOA officials also encourage consumers to take the following steps:

  • Visit Ready.gov and Listo.gov for useful and valuable disaster preparation resources including checklists and templates for your business and your home.
  • Download the FEMA app to sign-up for a variety of alerts and to access preparedness information.
  • Consider purchasing flood insurance.

Visit the National Hurricane Center’s website at hurricanes.gov throughout the season to stay current on watches and warnings.

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Be prepared to say NO when an insurance company offers you a low ball offer!

Be prepared to say NO when an insurance company offers you a low ball offer!

  • Posted: Aug 29, 2023
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Maus Law Firm

954-784-6310

Mr. Maus is a Florida native practicing law in South Florida since 1993. He currently limits his practice to the areas of insurance related claims – personal injury and homeowner property damage claims and commercial litigation. Mr. Maus has tried over 60 jury trials to verdict and has litigated claims throughout Florida.

Delays and Partial Payouts — Challenging the Patience of Florida Policyholders

Insurers often engage in strategies meant to challenge the patience of the policyholder and thereby force the policyholder to accept a lower payout, or to simply resign themselves to no payout.  For example, an insurer may excessively delay the processing of the claim, arguing that the delays are due to ongoing investigation of the damage.  By doing so, they hope that you — under pressure to fix the roof and no doubt overwhelmed by the proceedings— will simply move forward without waiting for the insurer and potentially give up on dealing with the hassle they created.

Partial payouts — in which the policyholder is offered an inadequate sum, but a sum nonetheless — are another way in which insurers try to goad policyholders into accepting less than what they’re owed under the policy at issue.

It’s worth noting that Florida law may entitle policyholders to bring an independent “bad faith” action against the insurer (which could even lead to punitive damages) if the insurer failed to investigate and pay the claim in a timely manner, or failed to evaluate the claim fairly under the circumstances. Simply put, if there was no valid justification for the denial, then our Fort Lauderdale roof damage attorneys may be able to sue and recover damages pursuant to a bad faith claim.

Coverage Exclusion as the Basis for Denial

In homeowner’s insurance policies, payouts for roof damage may be limited due to coverage exclusions.

For example, a roof damage claim may be covered if it is caused by a thunderstorm, but not if it is caused by a hurricane.

Such strict categorization for roof damage coverage often leads to a dispute, particularly if the event leading up to the roof damage at-issue is somewhat muddled — if your roof is damaged in a hurricane (which is covered by the policy), the insurer might claim that it was not actually the wind force of the hurricane itself, but a falling tree that caused the roof damage.  You can successfully counter this argument by showing how the hurricane directly caused the tree to fall on your roof.

Contact Our Fort Lauderdale Roof Damage Attorneys for a Free Consultation

Here at Maus Law Firm, our South Florida property damage attorneys have decades of experience representing the interests of policyholders whose real estate property has been harmed, whether due to a storm, fire, or some other unexpected event — including those which cause damage to the roof structure.

We understand the unique challenges that are faced by policyholders who are attempting to secure an adequate payout through submitting a roof damage claim, and are standing by to assist such policyholders in pursuing litigation against their insurers.

Ready to speak to a property damage lawyer at our firm?  Call us at 1-855-999-5297 or complete an intake form through our website to schedule a free and confidential consultation today.

Maus Law Firm Members of SFPMA
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Hurricane Preparedness and Recovery Guide by Becker and Association Adjusting

Hurricane Preparedness and Recovery Guide by Becker and Association Adjusting

Hurricane Preparedness and Recovery Guide

by Becker and Association Adjusting

The State of Florida is no stranger to hurricanes and other natural disasters.

Living in paradise doesn’t come without some risks associated with Mother Nature. The question is never just if our communities, homes and families will be impacted by a windstorm event, but when they will, and how we will prepare for and recover from that event.

In addition to our in-house legal services, Becker owns and operates Association Adjusting, a licensed and insured public adjusting firm led by Joseph “Joe Connelly (#E157037). Mr. Connelly has served as Executive Board Officer for the Florida Association of Public Adjusters (FAPIA).

Recognized as an authority in the community association industry, Association Adjusting has the expertise and experience to help community associations achieve the most favorable outcome possible. Our team of public adjusters, led by Mr. Connelly, provides clients with only the highest level of professionalism and excellence – whether you’re dealing with a claim that stems from hurricane damage, water damage, theft, fire, mold, roof leak, or any other type of calamity, our singular goal is to ensure your interests are always protected.

The first step toward developing and implementing a disaster plan is identifying the potential consequences of a disaster. The second step is to develop and implement a plan to mitigate the impact of a disaster to the fullest extent possible.

Click here to read more!

Disaster Resources & Links

Federal Emergency Management Agency for federal disaster response and recovery information

National Flood Insurance Program (NFIP) for information about federal flood insurance

Home Inventory Checklist

Information about Flood Insurance

Flood Insurance Writers

Flood Resources: National Flood Insurance Program (NFIP)
Contact Information: Phone: 1-888-FLOOD29 or 1-888-356-6329

Flood Claims Process

Filing a Flood Insurance Claim

Premium Discounts for Hurricane Loss Mitigation

Notice of Premium Discounts for Hurricane Loss Mitigation

Uniform Mitigation Verification Inspection Form

Homeowners insurance toolkit

Are you prepared for Hurricane Season?

Preparing for Natural Disasters, and Recovering from them

Disaster Preparedness at Home: Filter Out the Damage

Disaster Prep & Self Storage – What You Need to Know

PA DMV Emergency Driving Tips

Emergency Preparedness for People Requiring Special Assistance

Humane Society – Protect Your Pets

DISCLAIMER

Becker provides access to information on this website page as a public service. Although reasonable efforts have been made to ensure that all electronic information made available is current, complete and accurate, Becker does not warrant or represent that this information is current, complete and accurate. All information is subject to change on a regular basis, without notice. Becker assumes no responsibility for any errors in the information provided, nor assumes any liability for any damages incurred as a consequence, directly or indirectly, of the use and application of any of the contents of the website page. The inclusion of, or linking to, other website URLs does not imply our endorsement of, nor responsibility for, those web sites, but has been done as a convenience to our website visitors.

 

 

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“What To Do In The Aftermath Of a Hurricane” by Cohen Law Group

“What To Do In The Aftermath Of a Hurricane” by Cohen Law Group

Cohen Law Group would like to remind all Property Managers and CAMs that our firm has handled thousands and thousands of property damage insurance claims in Florida. We have decades of experience handling hurricane claims that have been denied, delayed, or reduced.
If you are unsure if your property sustained damage as a result of a Hurricane you should ask for an inspection by a qualified contractor, estimator or building inspector to assess whether hurricane-force winds damaged or compromised the roofing system and building envelope. Many companies offer this initial inspection free of charge. Given the complexities of a large loss claim, consider consulting with an attorney experienced in handling commercial insurance claims for condominiums and homeowner’s associations.
We can connect you with top professionals in the industry to evaluate hurricane damage and we can assist you with handling an insurance claim the right way– today.
Here’s more information on how we can help you:
Cohen Law Group is certified through the state of Florida for Property Manager and CAM Continuing Education Credits/Classes. We have a one to three-hour CE class called “A CAMs/Property Managers Guide to Property Damage Insurance Claims” 
· Planning for Success
· Knowing What’s in Your Insurance Policy
· After the Storm
We can schedule a free lunch and learn with your CAMs and will provide an overview of our suggestions and strategies as well as some examples of our vast experience with Residential Property Damage and Commercial Large Loss.
If you’re residential, commercial, or industrial properties have property damage, our Insurance Claims Attorneys can help with everything from A-Z on hurricane claims.

Please call us today at (407)702-3125 or email us at Devan@itsaboutjustice.law

At Cohen Law Group, It’s About Justice!

It’s more than a slogan, it’s our firm’s mantra. We are zealous in protecting your rights. We offer 24-hour availability through our answering service. Call us today.

(407) 478-4878

Harvey V. Cohen, President

 

Storm Damage Claims for your property:

SFPMA & Members are ready to Handle Storm Damage & Claims for Condo and HOA Properties!

These Trusted Members are; Legal Firms, Public Adjusters, Roofing Engineering & Service Companies that work with you on Solutions to Storm Related Damage.

 

Has your Home, Condo or HOA Sustained Property Damage?

SFPMA has a team of Legal Experts, adjusters, estimators and claim specialists for the benefit of the Condo and HOA’s who sustained damage from the storms and fire, water or mold.

With the know-how and experience to analyze, evaluate, and negotiate the best settlement for your Insurance Claim!

“Get the maximum settlement for your damage claim!”

 

Did you know? Transactional law involves drafting and negotiating contracts to protect your interests. Learn more about this essential legal service at Katzman Chandler.

Did you know? Transactional law involves drafting and negotiating contracts to protect your interests. Learn more about this essential legal service at Katzman Chandler.

  • Posted: Aug 22, 2023
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Transactional Services with Katzman Chandler

The team’s decades of combined legal experience provide the Katzman Chandler family of clients with cutting edge solutions to routine issues, as well as novel and/or complex legal matters faced by our Community Association clients and their voluntary Boards of Directors.

Our Transactional Attorneys are often relied upon by the media, as well as public policy makers, to sort out issues relating to the Community Association lifestyle. Each member of the Transactional Team brings a unique skill set and perspective to this diverse practice and understands how best to assist Boards in functioning in an age of ever growing state regulation and changing legal requirements.

Our Transactional Legal Services for Associations involve a combination of several specialty areas including, but not limited to, Real Property Law, Corporate Law, Litigation, Contract Law, and Insurance Law. Whether we are reviewing your contracts, amending your documents, rendering a bank loan opinion or enforcing your Community’s covenants against violators; our ultimate goal remains the same – to deliver information, counsel and answers in an easy to understand format with personalized service and attention to detail that you can rely on time and again.

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BOARD MEMBERS BETTER BE CAREFUL By Eric Glazer, Esq.

BOARD MEMBERS BETTER BE CAREFUL By Eric Glazer, Esq.

  • Posted: Aug 22, 2023
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BOARD MEMBERS BETTER BE CAREFUL

By Eric Glazer, Esq.

Board members I’m telling you now……..be careful.  I’m seeing it already.  Unit owners are starting to freak out over the passage of huge assessments to cover the costs of mandatory inspections, mandatory repairs and massive increases in insurance rates.

As we know, we’re not talking about pesky increases to the monthly cost of living in your home.  We are talking about increases that will cause many to no longer be able to afford to live in their home at all.  We are talking about increases that will force people to sell and no longer live in the condominium that they have lived in for perhaps decades.

Notwithstanding the fact that none of these increases are the result of anything the Board members did or didn’t do, board members know who is likely to be blamed for this financial disaster many unit owners find themselves in ——the Board members.  So what else is new?

Board members are used to being blamed when things go wrong even though it’s not their fault.  That comes with the territory.  They get yelled and screamed at, the meeting ends and then it’s usually over.  Maybe there’s some nasty e-mail that float around the community.  This time it’s different.

Even if unit owners come to the realization and accept that they can’t afford to live in the condo any longer, the question is….so where can they go?  Every condo seems to be in the same shape.  Or if owners choose to move to a place that’s simply newer and not yet required to perform these inspections and repairs, you can bet they cost a lot more money than where they currently live.  There’s simply no place to turn to.

When there is desperation and fear, people become irrational and often times violent and that is why I honestly fear for the safety of condominium board members throughout the state.  This is not a knock on the millions of law abiding condominium owners throughout the state.  They  were thrown into this position because The Florida Legislature failed all of you.  Instead of always requiring condominium owners to put away money for a rainy day, The Florida Legislature cow-towed to the whims of developers, law firms and other special interest groups who always lobbied against mandatory reserves.  The only reason why mandatory reserves are now required is because 98 innocent men, women and children died at The Champlain Towers in Surfside as a result of not having nearly enough money on hand to make obviously needed structural repairs in their condominium.

So Board members……….you didn’t volunteer in your community to get punched out or worse at your board meetings.  My advice is….when you know you’re about to pass a special assessment at a meeting, and at that meeting people are going to be going crazy……protect yourselves.  Make sure there are police or at least security at the meeting.  Better be safe than sorry.

 

WE WILL TAKE YOUR CALLS AND ANSWER YOUR CONDO AND HOA QUESTIONS THROUGHOUT THE HOUR. CALL US AT 877-850-8585 DURING THE SHOW.

 

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

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

  • Posted: Aug 14, 2023
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Jeffrey Rembaum, Esq. is a  Board Certified Specialist in Condominium and Planned Development Law and a community association lawyer with the law firm Kaye Bender Rembaum, in its Palm Beach Gardens office. His law practice consists of representing condominium, homeowners, and cooperative associations, developers and unit owners throughout Florida. He can be reached by email at JRembaum@KBRLegal.com or by calling 561-241-4462.

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

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

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

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

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

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

Thankfully, we do have some limited guidance. In 1989 the Florida Supreme Court held, in Quail Creek POA v. Hunter, 538 So. 2d 1288 (Fla. 2d DCA 1989), that neither a homeowners’ association’s recording of its covenants in the public records, nor the enforcement of its covenants in state court, created a sufficient nexus to evidence “state action” such that the First Amendment and the Fourteenth Amendment of the United States Constitution would apply. By analogy, such logic could be applied to defending the right of a community association to adopt a rule prohibiting concealed weapons in the clubhouse. Thus, there is no reason to believe that such arguments would not also apply to the application of the Second Amendment of the United States Constitution within community associations. That said, it would not at all be surprising for an owner to challenge such a rule; so, any association that adopts such a rule should be prepared to be a possible test case, which could have national implications associated with it.

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

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

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

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

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

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

DON’T LET THIRD PARTIES OFF THE HOOK! MAKE SURE YOUR GOVERNING DOCS DON’T THROW AWAY MONEY.

DON’T LET THIRD PARTIES OFF THE HOOK! MAKE SURE YOUR GOVERNING DOCS DON’T THROW AWAY MONEY.

DON’T LET THIRD PARTIES OFF THE HOOK!

MAKE SURE YOUR GOVERNING DOCS DON’T THROW AWAY MONEY.

Last week was a primer on how foreclosures generally work and how banks get off the hook when they get back a unit when they foreclose on an owner’s unit or home.  We learned that the banks are protected by the law because they only owe a few bucks to the association when they get title to the unit or home despite the fact that the owner owes a fortune to the association. That’s called a “safe harbor” and it’s provided to the banks because the banks claim that if you make them responsible for paying unpaid assessments, they simply won’t loan money to buy a condo or a home in an HOA.

But there is some good news……….suppose the bank does not buy the unit at their foreclosure sale and a third party winds up becoming the successful bidder and the owner?  What does that new owner owe the association if that unit owes thousands to the association in unpaid assessments?  And the answer under the law is EVERYTHING!  They owe it all.  Florida Statute 718.116 states:

Additionally, a unit owner is jointly and severally liable with the previous owner for all unpaid assessments that came due up to the time of transfer of title.

So, when a bank forecloses on a unit, or when the association forecloses on a unit, the association hopes and prays that a third party purchases the property at foreclosure sale because that guy owes everything to the association.  UNLESS………………….

Remember last week that I said that some of you have language in your governing documents that allows the bank to get off the hook even though they would owe money to the association if they wind up foreclosing and owning the property?  Well…..some of you have language in your governing documents that allow third party purchasers off the hook if they buy the property at a foreclosure sale.  So…..even though the association gets lucky and a third party purchases the property at foreclosure sale, your own docs kill you and lets the third party purchaser off the hook.  They owe nothing.  Disaster.

So……over the past two weeks we learned that it is vital for the board to check their governing documents to make sure that neither the bank nor a third party purchaser is let off the hook should they purchase a unit or home in your community.  Make sure your docs don’t kill you.  If they do, amend them immediately!!!!!!