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Mandatory Condominium & Cooperative Building Inspections and Non-Waivable Reserve Requirement

Mandatory Condominium & Cooperative Building Inspections and Non-Waivable Reserve Requirement

Mandatory Condominium & Cooperative Building Inspections and Non-Waivable Reserve Requirement

The City of Surfside, Champlain Towers South Related Legislation Already in Effect

 

With home insurers leaving Florida in droves, and following pressure from members of both political parties in the legislature to actually do something about it, in May 2022, the governor called a special legislative session to address the problem. A very real concern to the insurers is the effect of both time and inclement weather on Florida’s aging high-rise buildings. Until now, and for the most part, Florida law largely ignored these concerns. Enter Senate Bill 4-D (SB 4-D), which already became effective upon being signed into law by Governor DeSantis on May 26, 2022. This new piece of legislation addresses condominium and cooperative building inspections and reserve requirements. (While this article primarily addresses these new laws in the context of condominium association application, they are equally applicable to cooperative associations.)

By way of background, during the regular legislative session, there were several bills introduced in the Florida House of Representatives and in the Florida Senate addressing building safety issues, but none of them were passed into law due to the inability to match the language of the bills in both the house and the senate which is a requirement for legislation to pass and go to the governor for consideration. As such, it was a little surprising to many observers that the legislature was able to approve SB 4-D in essentially a 48-hour window during the special session in May. The language used in SB 4-D was initially drafted into a proposed bill in November 2021. At that time and during the most recent legislative session, input was provided by many industry professional groups including engineers, reserve study providers, and association attorneys. Many of these industry professionals indicated that there were challenges with some of the language and concepts being proposed in SB 4-D during session.

Notwithstanding these challenges and in an effort to ensure some form of life safety legislation was passed this year, SB 4-D was unanimously approved in both the house and senate and signed by the governor. A plain reading of this well-intended, but in some instances not completely thought-out, legislation evidences these challenges. Some will say it is a good start that will need significant tweaking, which is expected in the 2023 legislative session. Others praise it, and, yet others say it is an overreach of governmental authority, such as an inability to waive or reduce certain categories of reserves. You be the judge. We begin by examining the mandatory inspection and reserve requirements of SB 4-D.

I. Milestone Inspections: Mandatory Structural Inspections For Condominium and Cooperative Buildings. (§553.899, Fla. Stat.)

You will not find these new milestone inspection requirements in Chapters 718 or 719 of the Florida Statutes, but rather in Chapter 553, Florida Statutes, as cited above.

Milestone Inspections

The term “milestone inspection” means a structural inspection of a building, including an inspection of load-bearing walls and the primary structural members and primary structural systems. The aforementioned terms are defined in §627.706, Florida Statutes, and are to be carried out by a licensed architect or engineer authorized to practice in this state for the purposes of attesting to the life safety and adequacy of the structural components of the building and, to the extent reasonably possible, determining the general structural condition of the building as it affects the safety of such building, including a determination of any necessary maintenance, repair, or replacement of any structural component of the building. The purpose of such an inspection is not to determine if the condition of an existing building is in compliance with the Florida Building Code or the fire safety code.

Substantial Structural Deterioration

The term “substantial structural deterioration” means substantial structural distress that negatively affects a building’s general structural condition and integrity. The term does not include surface imperfections such as cracks, distortion, sagging, deflections, misalignment, signs of leakage, or peeling of finishes, unless the licensed engineer or architect performing the phase one or phase two inspection determines that such surface imperfections are a sign of substantial structural deterioration.

Milestone Inspections For Buildings Three Stories or More In Height

A condominium association under Chapter 718 and a cooperative association under Chapter 719 must have a milestone inspection performed for each building that is three stories or more in height by December 31 of the year in which the building reaches 30 years of age, based on the date the certificate of occupancy for the building was issued, and every 10 years thereafter.

Within Three Miles of Coastline

If the building is three or more stories in height and is located within three miles of a coastline, the condominium association or cooperative association must have a milestone inspection performed by December 31 of the year in which the building reaches 25 years of age, based on the date the certificate of occupancy for the building was issued, and every 10 years thereafter.

The condominium association or cooperative association must arrange for the milestone inspection to be performed and is responsible for ensuring compliance.

The condominium association or cooperative association is responsible for all costs associated with the inspection.

If The Certificate of Occupancy was Issued Before July 1, 1992

If a milestone inspection is required under this statute and the building’s certificate of occupancy was issued on or before July 1, 1992, the building’s initial milestone inspection must be performed before December 31, 2024. If the date of issuance for the certificate of occupancy is not available, the date of issuance of the building’s certificate of occupancy shall be the date of occupancy evidenced in any record of the local building official. 

Upon determining that a building must have a milestone inspection, the local enforcement agency must provide written notice of such required inspection to the condominium association or cooperative association by certified mail, return receipt requested. 

Within 180 days after receiving the written notice, the condominium association or cooperative association must complete phase one of the milestone inspection. For purposes of this section, completion of phase one of the milestone inspection means the licensed engineer or architect who performed the phase one inspection submitted the inspection report by email, United States Postal Service, or commercial delivery service to the local enforcement agency.

A Milestone Inspection Consists of Two Phases

(a) PHASE 1—For phase one of the milestone inspection, a licensed architect or engineer authorized to practice in this state must perform a visual examination of habitable and non-habitable areas of a building, including the major structural components of a building, and provide a qualitative assessment of the structural conditions of the building. If the architect or engineer finds no signs of substantial structural deterioration to any building components under visual examination, phase two of the inspection (discussed below) is not required. An architect or engineer who completes a phase one milestone inspection shall prepare and submit an inspection report.

(b) PHASE 2—A phase two of the milestone inspection must be performed if any substantial structural deterioration is identified during phase one. A phase two inspection may involve destructive or nondestructive testing at the inspector’s direction. The inspection may be as extensive or as limited as necessary to fully assess areas of structural distress in order to confirm that the building is structurally sound and safe for its intended use and to recommend a program for fully assessing and repairing distressed and damaged portions of the building. When determining testing locations, the inspector must give preference to locations that are the least disruptive and most easily repairable while still being representative of the structure. An inspector who completes a phase two milestone inspection must prepare and submit an inspection report.

Post-Milestone Inspection Requirements

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

  1. Bear the seal and signature, or the electronic signature, of the licensed engineer or architect who performed the inspection.
  2. Indicate the manner and type of inspection forming the basis for the inspection report.
  3. Identify any substantial structural deterioration within a reasonable professional probability based on the scope of the inspection, describe the extent of such deterioration, and identify any recommended repairs for such deterioration.
  4. State whether unsafe or dangerous conditions, as those terms are defined in the Florida Building Code, were observed.
  5. Recommend any remedial or preventive repair for any items that are damaged but are not substantial structural deterioration.
  6. Identify and describe any items requiring further inspection.

Local Government Enforcement

A local enforcement agency may prescribe timelines and penalties with respect to compliance with the milestone inspection requirements.

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

Board’s Duty After Obtaining The Milestone Report

Upon completion of a phase one or phase two milestone inspection and receipt of the inspector-prepared summary of the inspection report from the architect or engineer who performed the inspection, the association must distribute a copy of the inspector-prepared summary of the inspection report to each unit owner, regardless of the findings or recommendations in the report, by United States mail or personal delivery and by electronic transmission to unit owners who previously consented to receive notice by electronic transmission; must post a copy of the inspector-prepared summary in a conspicuous place on the condominium or cooperative property; and must publish the full report and inspector-prepared summary on the association’s website, if the association is required to have a website.

Who Pays for The Milestone Inspection?

Pursuant to §718.112, Florida Statutes, if an association is required to have a milestone inspection performed, the association must arrange for the milestone inspection to be performed and is responsible for ensuring compliance with all of the requirements thereof. The association is responsible for all costs associated with the inspection.

Failure to Obtain the Milestone Inspection

If the officers or directors of an association willfully and knowingly fail to have a milestone inspection performed pursuant to §553.899, Florida Statutes, such failure is a breach of the officers’ and directors’ fiduciary relationship to the unit owners.

Manager’s Duty

If a community association manager or a community association management firm has a contract with a community association that has a building on the association’s property that is subject to milestone inspection, the community association manager or the community association management firm must comply with the requirements of performing such inspection as directed by the board.

Exemptions

For clarity, the otherwise required milestone inspection does not apply to a single family, two-family, or three-family dwelling with three or fewer habitable stories above ground.

Florida Building Commission Requirements

The Florida Building Commission must review the milestone inspection requirements and make recommendations, if any, to the legislature to ensure inspections are sufficient to determine the structural integrity of a building. The commission must provide a written report of any recommendations to the governor, the president of the senate, and the speaker of the house of representatives by December 31, 2022. 

The Florida Building Commission must consult with the State Fire Marshal to provide recommendations to the legislature for the adoption of comprehensive structural and life safety standards for maintaining and inspecting all types of buildings and structures in this state that are three stories or more in height. The commission must provide a written report of its recommendations to the governor, the president of the senate and the speaker of the house of representatives by December 31, 2023.

II. Structural Integrity Reserve Studies and Mandatory Reserves:

The reserve legislation set out in §718.112 (f)(2)(a), Florida Statutes, is, for all intents and purposes, re-written. Prior to examining these most recent revisions, it is necessary to first examine the definitions set out in §718.103, Florida Statutes, where a brand-new term is added as follows: 

Structural integrity reserve study means a study of the reserve funds required for future major repairs and replacement of the common areas based on a visual inspection of the common areas applicable to all condominiums and cooperative buildings 3 stories or higher. 

Hereafter, the structural integrity reserve study is referred to as “SIRS.” Now we can turn our attention to the requirements of the SIRS as set out in §718.112 (f)(2)(a), Florida Statutes.

The Structural Integrity Reserve Study (required for all condominium and cooperative buildings three stories or higher regardless of date of certificate of occupancy):

An association must have a SIRS completed at least every 10 years after the condominium’s creation for each building on the condominium property that is three stories or higher in height which includes, at a minimum, a study of the following items as related to the structural integrity and safety of the building:

  1. Roof
  2. Load-bearing walls or other primary structural members
  3. Floor
  4. Foundation
  5. Fireproofing and fire protection systems
  6. Plumbing
  7. Electrical systems
  8. Waterproofing and exterior painting
  9. Windows
  10. Any other item that has a deferred maintenance expense or replacement cost that exceeds $10,000 and the failure to replace or maintain such item negatively affects the items listed in subparagraphs a.-i., as determined by the licensed engineer or architect performing the visual inspection portion of the structural integrity reserve study.

The SIRS may be performed by any person qualified to perform such study. However, the visual inspection portion of the structural integrity reserve study must be performed by an engineer licensed under Chapter 471 or an architect licensed under Chapter 481. 

As further set out in the legislation, at a minimum, “a structural integrity reserve study must identify the common areas being visually inspected, state the estimated remaining useful life and the estimated replacement cost or deferred maintenance expense of the common areas being visually inspected, and provide a recommended annual reserve amount that achieves the estimated replacement cost or deferred maintenance expense of each common area being visually inspected by the end of the estimated remaining useful life of each common area.”

The amount to be reserved for an item is determined by the association’s most recent structural integrity reserve study that must be completed by December 31, 2024. If the amount to be reserved for an item is not in the association’s initial or most recent structural integrity reserve study or the association has not completed a structural integrity reserve study, the amount must be computed using a formula based upon estimated remaining useful life and estimated replacement cost or deferred maintenance expense of each reserve item.

If the condominium building is less than three stories, then the legislation provides that “in addition to annual operating expenses, the budget must include reserve accounts for capital expenditures and deferred maintenance. These accounts must include, but are not limited to, roof replacement, building painting, and pavement resurfacing, regardless of the amount of deferred maintenance expense or replacement cost, and any other item that has a deferred maintenance expense or replacement cost that exceeds $10,000.” 

The association may adjust replacement reserve assessments annually to take into account any changes in estimates or extension of the useful life of a reserve item caused by deferred maintenance. 

If an association fails to complete a SIRS, such failure is a breach of an officer’s and director’s fiduciary relationship to the unit owners.

Non-Waivable and Waivable Reserves In The Unity Owner-Controlled Association

As to the SIRS, the legislation is patently clear that unit owners may not vote for no reserves or lesser reserves for items set forth in the SIRS report. There is ongoing debate among attorneys in regard to whether a condominium under three stories can waive or reduce reserves for any of the reserve items required to be in the SIRS that are included in the under- three-story condominium reserve—for example, roof and painting. (For those interested, examine lines 1029 to 1033 and 1050 to 1071 in SB 4-D.)

Mandatory Reserves In The Developer-Controlled Association

Before turnover of control of an association by a developer to unit owners other than a developer pursuant to §718.301, Florida Statutes, the developer-controlled association may not vote to waive the reserves or reduce the funding of the reserves. (Previously, a developer could fully waive all reserves for the first two years, meaning this is a monumental change.)

Pre-Turnover Developer Duty

Before a developer turns over control of an association to unit owners other than the developer, the developer must have a SIRS completed for each building on the condominium property that is three stories or higher in height.

III. Official Records

Official records of the condominium and cooperative association include structural integrity reserve studies, financial reports of the association or condominium, and a copy of the inspection reports and any other inspection report relating to a structural or life safety inspection of condominium or cooperative property. 

In addition to the right to inspect and copy the declaration, bylaws, and rules, renters have the right to inspect the milestone inspection report and structural integrity reserve study inspection reports as well.

Structural integrity reserve studies must be maintained for at least 15 years after the study is completed. In addition, inspection reports and any other inspection report relating to a structural or life safety inspection of condominium property must be maintained for 15 years after receipt of such report.

IV. Association Websites

In addition to other positing requirements, the inspection reports described above and any other inspection report relating to a structural or life safety inspection of condominium property and the association’s most recent structural integrity reserve study must be posted to the website.

V. Jurisdiction of Division of Condominiums, Timeshares and Mobile Homes

Pre-turnover, the Division of Florida Condominiums, Timeshares, and Mobile Homes (Division) may enforce and ensure compliance with rules relating to the development, construction, sale, lease, ownership, operation, and management of residential condominium units, and complaints related to the procedural completion of milestone inspections. After turnover has occurred, the Division has jurisdiction to investigate complaints related only to financial issues, elections, and the maintenance of and unit owner access to association records, and the procedural completion of structural integrity reserve studies.

VI. New Reporting Requirements For All Condominium and Cooperative Associations

On or before January 1, 2023, condominium associations existing on or before July 1, 2022, must provide the following information to the Division in writing, by email, United States Postal Service, commercial delivery service, or hand delivery, at a physical address or email address provided by the division and on a form posted on the division’s website:

  1. The number of buildings on the condominium property that are three stories or higher in height.
  2. The total number of units in all such buildings.
  3. The addresses of all such buildings.
  4. The counties in which all such buildings are located.

An association must provide an update in writing to the division if there are any changes to the information in the list within six months after the change.

VII. Applicable To All Sellers of Units

As a part of the sales process, the seller of a condominium or cooperative unit and developers must provide to potential purchasers a copy of the inspector-prepared summary of the milestone inspection report and a copy of the association’s most recent structural integrity reserve study or a statement that the association has not completed a structural integrity reserve study.

VIII. Glitches

As with any new legislation of such a substantial nature, there often follow in subsequent years what are referred to as “glitch bills” which help provide additional clarity, remove ambiguity, and fix unintended errors. Some observe are (i) the term “common areas” is used in the legislation when in fact the correct term is “common element;” (ii) clarity needs to be provided regarding whether reserve items that are required to be in SIRS, but show up in the under-three-story reserves, such as paint and paving, can be waived or reduced by the membership; and (iii) for those buildings that are within three miles of the coastline, additional clarity could be provided to provide better guidance as to how to perform the measurement.

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ATTN: CONDOMINIUM & COOPERATIVE Required Building Reporting Deadline January 1, 2023   From the Florida Department of Business & Professional Regulation

ATTN: CONDOMINIUM & COOPERATIVE Required Building Reporting Deadline January 1, 2023 From the Florida Department of Business & Professional Regulation

ATTN: CONDOMINIUM & COOPERATIVE

Required Building Reporting

Deadline January 1, 2023

From the Florida Department of Business & Professional Regulation

718.501(3)(a), F.S./Senate Bill SB4D requires all condominium and cooperative associations with buildings 3 stories or higher to report the following information to the Division of Florida Condominium, Timeshares and Mobile Homes on or before January 1, 2023.

  • The number of buildings on the condominium property that are three (3) stories or higher in height.
  • The total number of units in all such buildings
  • The addresses of all such buildings.
  • The counties in which all such buildings are located.

 

You may submit this information electronically at: ctmhbuildingreporting@myfloridalicense.com     

or

by USPS mail or hand delivery to:

Division of Florida Condominiums, Timeshares and Mobile Homes

Attention: Building Reporting

2601 Blair Stone Road Tallahassee, FL 32399-1030

For emailing or USPS mailing, we prepared this form for you to use: Click HERE.

condo-cooperative-building-reporting_web


 

You may also provide your association’s information to the Division by simply completing and submitting the Building Reporting form, via this link:

http://www.myfloridalicense.com/DBPR/condos-timeshares-mobile-homes/building-report/


 

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Lake Management: Lake Turnover and Fish Kills The science behind it….

Lake Management: Lake Turnover and Fish Kills The science behind it….

Lake Turnover and Fish Kills

The science behind it….

Lake turnovers generally occur in the fall but can sometimes occur in the summer. During the hot weather, the surface water of a lake warms much faster than deeper water. This results in a temporary layering effect, with warm water on top and cool water underneath. Scientists refer to this as stratification.
Because the top layer has constant access to the atmosphere, it tends to have more oxygen than the bottom layer-even though it’s warmer. If a heavy wind or cold rain should occur during these conditions, the stratification may be broken, causing the two layers to mix. Once this happens the mixing action can result in low dissolved oxygen levels throughout the water column, and can potentially cause a fish kill.
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Marketing: We publish information daily to all of our Social Media Pages; Facebook, Twitter, Google,LinkedIn …..

Marketing: We publish information daily to all of our Social Media Pages; Facebook, Twitter, Google,LinkedIn …..

Keeping everyone informed “we feel is the most important of all services we offer our members!”

Besides events, advocating for our industry, Helping Condo and HOA’s every day, Aiding the Managers whom are members and call or email us for information, Legal Help, Laws, Vendor Problems, now the New Laws for Florida, our Team is constantly referring clients the members ready to help.

SFPMA uses Social Media to inform Clients, Members and Followers. Groups are open to everyone, we send and promote information about member companies that work together in the Property Management Industry.  Supporting each member company and information; getting this information out to readers new members and our industry is important to us!

When most companies do not realize how important it is to let others know what you do on a daily basis. We watch, we visit many of the social media pages for our members. What we see is alarming!. Far to many companies do not utilize what Social Media has to offer them. This is why we are always looking for posts that we can reshare we realize you are not!

 

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Member News: At International Subsea Services, we are focused on providing Subsea Solution services with the highest levels of customer satisfaction

Member News: At International Subsea Services, we are focused on providing Subsea Solution services with the highest levels of customer satisfaction

Exiting news – ISS has officially expanded our marine services installing docks and sea walls across Florida to Texas !!!!

Get your free estimates today to get on the schedule – we have immediate availability with no delays

We are an Independent Contractors of Lake, Pond, and Wetland Installation & Maintenance

The installation and maintenance of lakes, ponds, and wetlands while taking care of cleanliness in your environment are very important these days. The restoration of living shorelines is a creative and productive technique to save water areas from erosion. Erosion is a natural process in which forces of nature such as water or wind crumble and transfer earthen materials to several other areas. The restoration technique actually includes the installation of wetlands plants, grasses, a thick sheet of algae, shrubs, and trees at areas of marine boundaries. This technique involves experts and the careful placement of bio-engineering materials to protect nearby areas of vegetables and soil.

View our services we offer to Homes, HOA’s, Condo’s and the Marine Industry

Living Shoreline & Hillside and Seeking the Best Restoration Company Near Me in FL

The contractors of local lakes and ponds for the restoration process, International Subsea Solution Services, have over 20 years of experience in the field. Whether it is demolition or restoration, every related service is offered by our well-experienced local team. We provide our services in areas of Florida in a fast and easy manner. Our professional pond and lake management services company is legally approved by the installation contractor for Dredge Sox Erosion Solutions. Wetland protection and shoreline restoration services are served by the high-quality products and materials of Dredge Sox. The materials used by our company make and restore banks into perfect-looking living shorelines. We have worked on managing several projects for which clients gave great feedback to our team.

 


Over twenty years of experience in construction inclusive of shoreline pipeline installations and shallow / deep water ROV and diving operations. Experienced in Horizontal Directional Drilling (HDD) of pipelines to include land based excavations associated with such HDD methodology. Marine construction including pile driving and new wharf installations. Installation of Bio-Engineered “Living Shorelines” through out the costal areas providing solutions for your erosion needs.

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DERREK OFFUTT (CEO)

Mobile: (832) 257-0813
Info@int-subsea.com
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Understanding Your Lake “How long will it take to clean up my lake?”

Understanding Your Lake “How long will it take to clean up my lake?”

Understanding Your Lake

“How long will it take to clean up my lake?”

How-Long-to-Clean-Lake

This is one of the most often asked questions applicators get and is also one of the trickier ones to
answer. The hard part of this question is that there are so many variables to take into account when
trying to answer it. Are we dealing with one kind of weed or multiple ones?

Different ones may require separate treatments. Some of those treatments may not be compatible with each other which means they must be done on different visits. How bad is the problem? If the entire lake is affected,
we need to treat it in portions over time so we don’t deplete the dissolved oxygen.

Which herbicide is effective on the weeds you have? Some work quickly, where as others take time to do the job, and
not all herbicides work on every kind of plant. What is the weather? Forecasted rains can wash off or
dilute treatments, forcing work to be postponed.

These are just a few of the things we need to consider before we can even start to give a client an answer and that is just the beginning of the process. The EPA approved products we apply to lakes do not make the weeds magically disappear.

Once they begin to die, most will float to the surface and collect in mats. Then water chemistry,
weather, and lake circulation controls how long it takes for them to break down and sink. Sometimes
lakes will require follow up treatments to take care of re-growth, or dense pockets of plants.

An experienced lake management company can give you an estimate of how long it will take to start to
see results but a definite answer can be difficult. Understand that there is a customized plan being
implemented and that your manager is working to remedy the problem. If you ever have any specific
questions about your lake and its care, the staff at Allstate Resource Management is here to answer
them and provide you with the information you need.


Author: Stephen Montgomery, Senior Biologist


Allstate Resource Management has over 25 years of experience in maintaining the health of lakes, ponds, wetlands, and stormwater systems. We have continued since our inception to be the leader in resource management.

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VIOLATION REMEDIES: SELF-HELP vs. INJUNCTION – Which to Use?

VIOLATION REMEDIES: SELF-HELP vs. INJUNCTION – Which to Use?

VIOLATION REMEDIES: SELF-HELP vs. INJUNCTION

Which to Use

Imagine this scenario: you are on the board of directors of your association. The association has repeatedly requested that an owner pressure wash their dirty roof to bring it into compliance with the community standards, but the owner refuses to do so. The association has already sent a number of demand letters and even levied a fine and perhaps a suspension of use rights, too, but the owner still will not comply. What is the association’s next step?

  • Is it time to file a lawsuit to compel compliance? Chapters 718 (governing condominiums), 719 (governing cooperatives), a 720 (governing homeowners associations), Florida Statutes, authorize the association to bring an action at law or in equity to enforce the provisions of the declaration against the owner.

OR

  • Is it time for the association to use its “self-help” remedy? In fact, many declarations contain such “self-help” language, which authorizes the association to cure the violation on behalf of an owner and even, at times, assess the owner for the costs of doing so. These “self-help” provisions generally contain permissive language, meaning that the association may, but is not “obligated” to, cure the violation.

Assume that the association’s declaration contains both the permissive “self-help” remedy and the right to seek an injunction from the court that orders the owner to clean their roof or else be in contempt of court. Thus, it would appear the association has a decision to make: (i) go to court to seek the injunction; or (ii) enter onto the owner’s property, pressure clean the roof, and assess the costs to the owner. Not so fast! Recent case law from Florida’s Second District Court of Appeal affirmed a complication to what should be a simple decision, discussed in greater detail below.

In two cases decided 10 years apart, Florida’s Second District Court of Appeal decided that an association did not have the right to seek an injunction to compel an owner to comply with the declaration if the declaration provided the association the authority to engage in “self-help” to remedy the violation. Prior to a discussion of the cases, a brief explanation of legal and equitable remedies is necessary.

There is a general legal principle that, if a claimant has a remedy at law (e.g., the ability to recover money damages under a contract), then it lacks the legal basis to pursue a remedy in equity (e.g., an action for injunctive relief). In the association context, a legal remedy would be to exercise the “self-help” authority granted in the association’s declaration. An equitable remedy would be to bring an action seeking an injunction to compel an owner to take action to comply with the declaration (e.g., compelling the owner to pressure wash their roof). A court will typically only award an equitable remedy when a legal remedy (such as “self-help”) is unavailable, insufficient, or inadequate.

This distinction is first illustrated in Alorda v. Sutton Place Homeowners Association, Inc., 82 So. 3d 1077 (Fla. 2d DCA 2012). In Alorda, the owners failed to provide the association with proof of insurance coverage as required by the declaration. The association sent multiple demand letters to the owners, but they failed to comply. The declaration provided, in pertinent part, that “[t]he owner shall furnish proof of such insurance to the Association at the time of purchase of a lot and shall furnish proof of renewal of such insurance on each anniversary date. If the owner fails to provide such insurance the Association may obtain such insurance and shall assess the owner for the cost of the same in accordance with the provisions of this Declaration” (emphasis added). In accordance with the foregoing, the association had the option to purchase the insurance on behalf of the owners and assess them for the costs of same.

However, the association chose instead to file a complaint against the owners seeking the equitable remedy of injunctive relief, asking the court to enter a permanent mandatory injunction requiring the owners to obtain the required insurance coverage. The owners then filed a motion to dismiss the suit arguing that even though they had violated a provision of the declaration, the equitable remedy of an injunction is not available because the association had an adequate remedy at law. In other words, the owners argued that, because the association could have, pursuant to the declaration, undertaken the ”self-help” option by purchasing the required insurance and assessing it against the owners, they had an available legal remedy and, therefore, the equitable remedy sought (a mandatory injunction) was not available to the association. The court, citing to a different case, Shaw v. Tampa Electric Company, 949 So.2d 1006 (Fla. 2d DCA 2007), explained that a mandatory injunction is proper only where a clear right has been violated, irreparable harm has been threatened, and there is a lack of an adequate remedy at law. As the association had an adequate remedy at law (the authority to purchase the insurance on behalf of the owners), the third requirement was not met. Therefore, the court held that the association failed to state a cause of action and dismissed the case. (This case might be decided differently today as it appears the insurance marketplace will not permit an association to purchase insurance for a unit that it does not own, so the legal remedy presumed available to the association would be inadequate).

Similarly, in the recent case of Mauriello v. The Property Owners Association of Lake Parker Estates, Inc., Case No. 2D21-500 (Fla. 2d DCA 2022), Florida’s Second District Court of Appeal considered the award of attorneys’ fees after the dismissal of the association’s action for an injunction. Ultimately, the court held that the owners were the prevailing party as the association could not seek an injunction because the association had an adequate remedy at law. In Mauriello, the owners failed to maintain their lawn and landscaping in good condition as required by the declaration. As such, the association filed a complaint seeking a mandatory injunction ordering the owners to maintain the lawn and landscaping in a “neat condition.” The association’s declaration contained similar language to the declaration at issue in Alorda. The declaration provided that, if an owner failed to perform any maintenance required by the declaration, the association, after written notice, “may have such work performed, and the cost thereof shall be specifically assessed against such Lot which assessment shall be secured by the lien set forth in Section 9 of this Article VI” (emphasis added). In other words, the association had the permissive “self-help” authority pursuant to the declaration.

The facts of this case were complicated by the sale of the home in the middle of the suit. The new owners voluntarily brought the home into compliance with the declaration, and the case became moot. However, the parties continued to fight over who was entitled to prevailing party attorneys’ fees. The association argued it was entitled to prevailing party attorneys’ fees because the voluntary compliance was only obtained after the association was forced to commence legal action. The owners, citing Alorda, argued that they were entitled to prevailing party attorneys’ fees as the association’s complaint never stated a cause of action in the first place. They argued that the complaint should have been dismissed at the outset because the association sought an equitable remedy (mandatory injunction) when a legal remedy was available to the association (exercise of “self-help” authority).

Florida’s Second District Court of Appeal agreed with the owners that Alorda was controlling. The Court explained that, as in Alorda, “the association’s declaration gave it the option of remedying the alleged violation itself, assessing the owner for the cost, and if the owner failed to pay, placing a lien on the property and foreclosing if it remained unpaid.” As such, the association had an adequate remedy at law and could not seek the equitable remedy of an injunction, which was initially sought by the association. Because the mandatory injunction was not available to the association, the association’s complaint failed to state a proper cause of action and, thus, should have been dismissed by the trial court at the outset. Therefore, the association was not entitled to its sought-after prevailing party attorneys’ fee award, which is otherwise granted if a party comes into compliance after the lawsuit is served.

Sections 718.303 (as to condominiums), 719.303 (as to cooperatives), and 720.305 (as to homeowners associations), Florida Statutes, contain similar language that specifically authorizes the association to bring actions at law or in equity, or both, in the event an owner fails to comply with the governing documents of the association. However, neither the Court in Alorda nor the Court in Mauriello addressed the association’s statutory authority to bring an injunction against an owner who fails to comply with the requirements of the declaration, but rather found that the association must use the “self-help” remedy since it was available to cure the violation.

Notwithstanding the Alorda and Mauriello decisions rendered by Florida’s Second District Court of Appeal, past appellate court decisions from other appellate jurisdictions in Florida have permitted community associations to pursue claims for injunctive relief against violating owners so long as a violation of the restrictive covenant is alleged in the complaint. As such, the Alorda and Mauriello cases appear to be departures from the established principle. Additionally, as both decisions came from Florida’s Second District Court of Appeal, the decisions are certainly binding on those associations within the jurisdiction of the Second District, but there has been no indication that other districts will follow suit. However, there is risk that other appellate district courts may be persuaded by the holdings of Alorda and Mauriello.

As such, if your association’s declaration contains a “self-help” provision, and your association chooses to seek an injunction against an owner rather than pursue “self-help,” the board should definitely discuss the issue in greater detail with the association’s legal counsel prior to proceeding.

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

 

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Event: Continued Discussion on SB-4D and more on How to Prepare Your 2023 Budget

Event: Continued Discussion on SB-4D and more on How to Prepare Your 2023 Budget

Continued Discussion on SB-4D and more on How to Prepare Your 2023

Wednesday, August 17, 2022 | 12 Noon to 1:00pm

Castle Group invites you to join us for Season 3, Episode 12 of Association Leadership. Join our continued discussion on SB-4D and more on how to prepare for your 2023 budget. The live webinar will be hosted by Craig Vaughan, Castle Group – Founder & CFO who will be joined by Attorneys Michael S. Bender and Jeffrey A. Rembaum – Kaye Bender Rembaum, P.L., Board Certified Specialists in Condominium and Planned Development Law, and special guest Steven Gladstone, Gladstone & Company, CPAs, Owner.

Wednesday, August 17, 2022 | 12 Noon to 1:00pm

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Webinar: Loans and Borrowing Money – What Community Associations Need to Know

Webinar: Loans and Borrowing Money – What Community Associations Need to Know

Webinar: Loans and Borrowing Money – What Community Associations Need to Know

WEDNESDAY, AUGUST 10, 2022 AT 10 AM-11AM

There is a lot of confusion when it comes to obtaining a loan as a community association. This webinar is intended to clear the confusion and provide you with the necessary tools to obtain a loan.
You will learn:
• What is and is not collateral for a community association loan
• What type of loan documents to avoid
• The borrowing process from beginning to end
• When to get your attorney involved
This program is not eligible for CEU credit or certificate of completion.
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This is going to be presented on Zoom! Full live viewing instructions will be sent to all registrants.
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REGISTER NOW:

 

LUNCH & LEARN Q&A WITH KAYE BENDER REMBAUM  08/10/2022  11:30 am – 12:45 pm

LUNCH & LEARN Q&A WITH KAYE BENDER REMBAUM  08/10/2022  11:30 am – 12:45 pm

LUNCH & LEARN Q&A WITH KAYE BENDER REMBAUM

Shawn G. Brown, Esq., BCS from our Tampa location will answer your questions live on Zoom!
RSVP Free HERE

The theme for this Lunch & Learn is Association Operations. Topics to include Cyberstalking & Defamation in Community Associations.
Be sure to ask a question on the registration form, and it may be picked to be addressed live. Shawn will also take questions live, during the discussion!

 

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August 11, 2022 12 Noon to 2:00pm Live via Zoom “Condominium Board Member Certification”

August 11, 2022 12 Noon to 2:00pm Live via Zoom “Condominium Board Member Certification”

August 11, 2022 12 Noon to 2:00pm Live via Zoom “Condominium Board Member Certification”

Thursday, August 11, 2022
12 Noon to 2:00pm Eastern | Live via Zoom
Join attorneys Andrew B. Black, BCS and Nicole E. Halpryn, each from our Pompano Beach office.
This webinar covers the essentials of condominium board membership, and is updated regularly to remain current with legislative amendments to Florida’s Condominium Act. In addition, this webinar satisfies Florida’s requirement for new condominium board members. It also serves as an excellent refresher course. Licensed CAMS will receive two (2) CE credits.
Receive your certificates right after the webinar!
Course# 9630075 | Provider# 0005092 | 2 CEU in IFM
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