Become a Member: JOIN SFPMA TODAY   LogIn / Register: LOGIN/REGISTER

SFPMA Industry Articles | news, legal updates, events & education! 

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

Acryfin Dock & Deck Coatings – restore, renew, and revitalize your outdoor surface areas

Acryfin Dock & Deck Coatings – restore, renew, and revitalize your outdoor surface areas

  • Posted: Aug 02, 2022
  • By:
  • Comments: Comments Off on Acryfin Dock & Deck Coatings – restore, renew, and revitalize your outdoor surface areas

Finally A Deck & Dock Solution In South Florida  Backed By A 10 Year Warranty.

ACRYFIN® is a highly rated product from both commercial and residential consumers and holds an A rating from the Better Business Bureau. It is also certified as Eco-Friendly. Additional benefits of utilizing ACRYFIN®an acrylic polymer coating, to restore, renew, and revitalize your outdoor surface area are the following:

  • Repairs cracks, and untreated wood coating which eliminates dangerous splinters
  • Provides non-skid protection for the safety of your family, guests, or patrons
  • Provides durability to withstand weather-related events and environment
  • Eliminates annual expenses of time and labor for deck staining and/or repainting
  • Unlimited color selection to match your vision for deck and dock paint
  • Environmentally friendly, non-toxic and VOC-free
  • Perfect for both commercial, industrial, and residential application

ACRYFIN® is an industrial strength acrylic polymer coating that can be applied to many surfaces including wood and concrete. From full service marinas, restaurants, and beach boardwalks to any residential area; no job is too big or too small!

Lets chat: Contact us for a quote for your property today.

 

Tags:
SOME OTHER NEW LAWS CONDOS MUST FOLLOW – PART TWO  By Eric Glazer, Esq.

SOME OTHER NEW LAWS CONDOS MUST FOLLOW – PART TWO By Eric Glazer, Esq.

  • Posted: Aug 02, 2022
  • By:
  • Comments: Comments Off on SOME OTHER NEW LAWS CONDOS MUST FOLLOW – PART TWO By Eric Glazer, Esq.

SOME OTHER NEW LAWS CONDOS MUST FOLLOW – PART TWO

By Eric Glazer, Esq.

DISTRIBUTION OF THE INSPECTION REPORTS

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 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.

THE DEVELOPER’S TURNOVER REPORT

Notwithstanding when the certificate of occupancy was issued or the height of the building, the developer must provide a milestone inspection report in compliance with s. 553.899 included in the official records, under seal of an architect or engineer authorized to practice in this state, and attesting to required maintenance, condition, useful life, and replacement costs of the following applicable condominium property common elements comprising a turnover inspection report:

  1. Roof.
  2. Structure, including load-bearing walls and primary structural members and primary structural systems as those terms are defined in s. 627.706. 
  3. Fireproofing and fire protection systems.
  4. Elevators.
  5. Heating and cooling systems.
  6. Plumbing.
  7. Electrical systems.
  8. Swimming pool or spa and equipment.
  9. Seawalls.
  10. Pavement and parking areas.
  11. Drainage systems.
  12. Painting.
  13. Irrigation systems.
  14. Waterproofing
  15. A copy of the association’s most recent structural integrity reserve study.

     

POWERS OF THE DIVISION

So let’s say the developer is ignoring all of these new safety laws.  Does the DBPR have any power to do anything about it?

(1) The division may enforce and ensure compliance with this chapter and 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 under s. 553.899.

However, Once The Developer Has Turned Over…

(2) However, 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 under s. 718.111(12), and the procedural completion of structural integrity reserve studies under s. 718.112(2)(g).

So………..if your Board ignores these new safety laws and you want to do something about it…..it’s off to court.

Part Two: New Condo Inspection Bill – Get your questions answered!

Part Two: New Condo Inspection Bill – Get your questions answered!

  • Posted: Aug 02, 2022
  • By:
  • Comments: Comments Off on Part Two: New Condo Inspection Bill – Get your questions answered!

Part Two: New Condo Inspection Bill

Get your questions answered!

Thursday, Aug. 4, 2022 | Noon Eastern | Live via Zoom
Featuring Michael S. Bender, Esq., BCS from Kaye Bender Rembaum
and Scott Harvey-Lewis from Building Mavens.
Join us for this second webinar on the new condo inspection bill. Get answers to your questions from Evan Bradley at Campbell Property Management, Attorney Michael S. Bender from Kaye Bender Rembaum and Engineer Scott Harvey-Lewis from Building Mavens. We will discuss how these inspections might actually work, what they may cost, and more!
Be sure to ask your question about the new condo inspection bill when you register. We will do our best to answer as many questions as possible.
Tags:
Webinar by KBRLegal: HOA Board Member Certification – Thursday, July 28, 2022 4:00pm to 6:00pm

Webinar by KBRLegal: HOA Board Member Certification – Thursday, July 28, 2022 4:00pm to 6:00pm

  • Posted: Jul 26, 2022
  • By:
  • Comments: Comments Off on Webinar by KBRLegal: HOA Board Member Certification – Thursday, July 28, 2022 4:00pm to 6:00pm

CAMS…please share with your Boards and interested homeowners.

Thursday, July 28, 2022
4:00pm to 6:00pm Eastern | Live via Zoom
HOA Board Member Certification
Join Emily E. Gannon, Esq., of our Pompano Beach office.
This webinar covers the essentials of HOA board membership, and is updated regularly to remain current with Florida legislative amendments. In addition, this webinar satisfies Florida’s requirement for new HOA board members.
It also serves as an excellent refresher course. Licensed CAMS will receive two (2) CE credits as IFM or ELE.

Course# 9630140 | Provider# 0005092
The Kaye Bender Rembaum Team Remains Available To You and Your Community Association
Visit KBRLegal.com for awesome free resources, including 2021 Legislation, news with Legal Morsels and Rembaum’s Association Roundup, and our Event Calendar, including upcoming free classes.

 

Tags:
OTHER NEW CONDO LAWS TO KNOW – PART ONE

OTHER NEW CONDO LAWS TO KNOW – PART ONE

  • Posted: Jul 26, 2022
  • By:
  • Comments: Comments Off on OTHER NEW CONDO LAWS TO KNOW – PART ONE

SOME OTHER NEW LAWS CONDOS MUST FOLLOW – PART ONE

By Eric Glazer, Esq.

We all know by now the myriad of new safety laws condos that are 3 stories or more are required to follow.  They include mandatory fire sprinklers or an engineered life safety system (for buildings 75 feet or higher only), a Phase One Milestone Inspection after 30 years and every ten years thereafter (25 years if the building is on the coast), a likely Phase Two Inspection which will result in required repairs to the structure and of course structural integrity reserve studies performed by an architect or engineer and the mandatory full funding of reserve accounts.

There’s actually more to know.

OFFICIAL RECORDS TO INCLUDE  AND BE POSTED ON THE ASSOCIATION’S WEBSITE:

  1. All audits, reviews, accounting statements,structural  integrity reserve studies, and financial reports of the association or condominium. Structural integrity reserve studies  must be maintained for at least 15 years after the study is completed.

 

A copy of the inspection reports for the milestone inspections and the structural integrity reserve studies  and any other inspection report relating to a structural or life safety inspection of the condominium property. Such record must be maintained by the association for 15 years after receipt of the report.

NO LONGER IS THERE THE ABILITY

TO WAIVE RESERVES OR USE THEM FOR OTHER PURPOSES

 

It was always ridiculously easy to waive the funding of the reserve account.  All it took was a lousy majority of a quorum.  Those days are now over and reserve accounts must be fully funded, like it or not.

The same rule finally applies to developers.  Before turnover of control of an association by a developer to unit owners other than a developer under 718.301, the developer-controlled association developer may not vote the voting interests allocated to its units to waive the reserves or reduce the funding of the reserves.

You can no longer vote to use reserves set aside for one category to be used to repair another category.  Effective December 31, 2024, members of a unit-owner controlled association may not vote to use reserve funds, or any interest accruing thereon, that are reserved for items listed in paragraph (g) for any other purpose other than their intended purpose.

(g) Structural integrity reserve study.

  1. An association must have a structural integrity reserve study 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:
  2. Roof. 
  3. Load-bearing walls or other primary structural members.
  4. Floor. 
  5. Foundation.
  6. Fireproofing and fire protection systems. 
  7. Plumbing. 
  8. Electrical systems. 
  9. Waterproofing and exterior painting. 
  10. Windows.
  11. 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.
  12. Before a developer turns over control of an association  to unit owners other than the developer, the developer must have a structural integrity reserve study completed for each building on the condominium property that is three stories or higher in height.

 

  1. Associations existing on or before July 1, 2022, which are controlled by unit owners other than the developer, must have a structural integrity reserve study completed by December 31, 2024, for each building on the condominium property that is three stories or higher in height.

BREACH OF FIDUCIARY DUTY – THIS IS SCARY

 

  1. If an association fails to complete a structural integrity reserve study pursuant to this paragraph,such failure is a breach of an officer’s and director’s fiduciary relationship to the unit owners under s. 718.111(1).  If you’re an officer or director, this new law should scare you to death.  If you fail to do the reserve study, you have automatically breached your fiduciary duty.  This could potentially result in individual liability against a director should the failure to do the reserve study result in collapse or injury.

 

(h) Mandatory milestone inspections.—If an association is required to have a milestone inspection performed pursuant to s. 553.899, the association must arrange for the milestone inspection to be performed and is responsible for ensuring compliance with the requirements of s. 553.899. The association is responsible for all costs associated with the inspection. If the officers or directors of an association willfully and knowingly fail to have a milestone inspection performed pursuant to s. 553.899, such failure is a breach of the officers’ and directors’ fiduciary relationship to the unit owners under s. 718.111(1)(a).  Again, If you’re an officer or director, this new law should scare you to death.  If you fail to do the milestone inspection, you have automatically breached your fiduciary duty.  This could potentially result in individual liability against a director should the failure to do the reserve study result in collapse or injury.

Tags:
Why A Specialized Collections Company Makes Sense for Your Community Association by Axela

Why A Specialized Collections Company Makes Sense for Your Community Association by Axela

  • Posted: Jul 20, 2022
  • By:
  • Comments: Comments Off on Why A Specialized Collections Company Makes Sense for Your Community Association by Axela

Is a Specialized Collections Company Right for Your Association?

In good times or bad times, community associations (Condos and HOAs) will experience some level of delinquencies that affect the entire association. As a not for profit business your association depends on timely payments every pay period to maintain services to members of the association.  Failure to effectively act on a delinquent account does a disservice to the community and to the delinquent member as well.  By allowing a member to sink deeper and deeper in debt, the association only makes it more difficult for them to remedy their problem.  Engaging a Legal Process (sending the file to your community association attorney) the association may just be incurring additional expenses that eventually will be paid for by the good-paying owners.

 

Often HOA boards of directors are reluctant to migrate delinquencies to collection agencies from their community association attorney. This article looks at the key benefits and concerns regarding collection agencies for community associations, examines the current state of collections, and helps associations understand why a specialized collection agency for community associations offers tremendous opportunity to collect their money at very no cost and no risk.

The Promise of a Specialized Collections Company

Almost every community association looks towards their community association attorney to manage their delinquencies. Yet community association attorneys are not prepared to do the work necessary to effectuate collections (outbound callscredit reportingskip tracing, dedicated inbound call center), and the costs are usually beyond what they recover.  Collection agencies have traditionally been performance-based and will collect their fees and costs only upon a successful collection event.  Collection agencies are concerned with only one aspect of business and that is the successful and cost-effective recovery of maintenance fees and other charges that may appear on the ledger (fines & violations, special assessments).

Operational Excellence and Reporting

The most important feature of an enterprise-level collections solution is its ability to communicate with delinquent owners.  Both inbound calls and outbound calls must be managed by highly trained and accredited specialists. When seeking out a collections company for your HOA ask if there is a dedicated portal for delinquent owners to resolve their issues. Boards of Directors and their management companies need to have access to clear and legible reporting.  Payment applications must be handled according to governing documents and state statutes. Strict compliance with Federal and State consumer rules and regulations is imperative.

Cost Savings

Community Association law firms require payment regardless of the outcome of the file. These costs often are beyond the amounts recovered.  Collection Agencies are merit-based and are only paid upon a successful collection effort.  In the specialized field of collections for community associations boards of directors should not, and in some cases, cannot allow any portion of their maintenance fees to be allocated as boards must be faithful to their association’s budget.  Fees and costs of collections should be charged and passed through to delinquent owners, and in the case of an unsuccessful collection effort these fees should not become the burden of the association (including costs for filing a lien)

Concerns Regarding Collection Agencies

It’s easy to see why these key features are the motivators for moving your collections to a specialized collections company and away from a community association attorney.  Yet, many boards of directors are reluctant to change what they have traditionally done in the past, and of course, they will be advised by their own counsel not to remove a collection file from their firms.

FDCPA, TCPA, & FCRA Compliance

Any vendor who performs services for a community association must have the proper insurance to protect the association from liability.  Violations of consumer protection laws should be a great concern.

  • Know and be in compliant with Federal and State Regulations.
  • Report delinquencies to credit bureaus in compliance with the FCRA.
  • Ensure all telephone calls are following TCPA regulations.

A community association must perform their due diligence and be sure that their collection agency is not only bonded but properly insured.  Associations should also be concerned that the customer service representatives of the collection agency are professionally trained and have designations from collection industry trade organizations such as ACA (The Association of Credit and Collection Professionals).

Statutes & Governing Documents (CC&Rs)

Of significant concern to community associations should be a collection agency’s adherence to governing documents and state statutes that relate to condos and HOAs.  Payment application, timelines, statutory compliance to the lien process, and notification are of paramount concern to community associations, especially regarding collections.  Zero defect execution of the collections process must be the standard practice. Collection agencies need to:

  • Perform flawless underwriting of each ledger.
  • Verify property ownership.
  • Impeccably review governing documents and by-laws and understand the state statutes where they are doing collections.

Conclusion

With increased scrutiny of the collection industry, it is more important than ever for community associations to engage the right company with the most sophisticated technology that can support their missions.  They should:

  • Compare and document standards, guarantees, and performance levels to ensure that prospective collection agencies are truly best-in-class solution providers.
  • Ask for collection agency references and connect with these references to get a true feel for the providers’ service, product and

It is also imperative that community associations increase efficiency, transparency, and reporting to members of the community.  Collection Agencies that specialize in working with community associations are the best way to go.  The right collection agency just makes sense for communities – Do not allow delinquencies to erode your community.

About Axela Technologies

Axela Technologies is a licensed collection agency exclusively serving community associations in the United States.  Axela Technologies realizes that in the field of collections, community associations have been an under-served industry.  By offering their core product Easy Collect ™ to community associations Axela Technologies has recovered millions of dollars that community associations might have otherwise written off. Give Axela a call today and get a free no-obligation collections analysis today to see if a specialized collections company is right for your association.

Tags:
DELINQUENT ACCOUNT COLLECTION FOR YOUR COMMUNITY ASSOCIATIONS

DELINQUENT ACCOUNT COLLECTION FOR YOUR COMMUNITY ASSOCIATIONS

  • Posted: Jul 20, 2022
  • By:
  • Comments: Comments Off on DELINQUENT ACCOUNT COLLECTION FOR YOUR COMMUNITY ASSOCIATIONS

DELINQUENT ACCOUNT COLLECTION FOR YOUR COMMUNITY ASSOCIATIONS

The Attorneys and Staff in the Collection Department of Katzman Chandler understand that assessments are the financial lifeblood of every Community Association. With that in mind, we have secured and maintained the finest attorneys and staff to assist our clients in collecting delinquent assessments as quickly and painlessly as possible.

The Partners, Attorneys and Staff at Katzman Chandler have always been innovative and aggressive in the collection of debts owed to its valued clients, and we will continue to be trendsetters in this area.

We want our clients to effortlessly and easily follow the progress of their cases in collection at any given time, and to not only believe, but actually know, that these matters are moving as quickly and as smoothly as possible. With that goal in mind, Board Members and their Community Association Managers are provided 24/7 online access to our interactive website that provides the most recent, as well as a full and detailed history of the status of all collection and foreclosure matters we are handling on their behalf.

As Katzman Chandler’s ultimate goal is to bring a delinquent owner into financial good standing through full payment of all past due amounts owed to the Association, we have also created an online owner portal that may be accessed at any time of the day or night by the delinquent owner. This owner portal makes it simple for your delinquent owner(s) to communicate with us and bring their accounts current. Through this portal, your Association’s delinquent owners, may request a payoff/estoppel, request a payment plan, obtain payment instructions and/or request to be contacted by our Collection Department Attorneys or Staff.

It is our goal to take the worry and frustration associated with the collection of delinquent accounts off of your shoulders. Simply stated, Katzman Chandler is committed to collecting the funds your Community needs, when you need them the most.

 

Katzman Chandler

1500 W. Cypress Creek Road • Suite 408 • Fort Lauderdale, FL 33309

800-987-6518 • info@katzmanchandler.com

 

 

Tags: ,
What is an Estoppel Certificate and Why do you need one when buying a Condo or Home in an HOA?

What is an Estoppel Certificate and Why do you need one when buying a Condo or Home in an HOA?

  • Posted: Jul 20, 2022
  • By:
  • Comments: Comments Off on What is an Estoppel Certificate and Why do you need one when buying a Condo or Home in an HOA?

Generic legal definition that you should IGNORE: A legal principle that bars a party from denying or alleging a certain fact owing to that party’s previous conduct, allegation, or denial.

Layman’s description (not a legal description) of what estoppel means in a condo or homeowners association: an estoppel certificate is a document which describes outstanding fees that an owner owes to his/her association as of a certain date.

When a home is sold, the new owner and the old owner are “jointly and severally liable” for any amounts owed to the association. What this means in practice, is that any debt to the association stays with the property when a title transfers. These debts include: maintenance dues, late fees, fines, interest, legal fees and special assessments outstanding at the time of the transfer.

If the new owner does not obtain an estoppel certificate they will not be aware of any amounts owed to the association by the prior owner and they may be inheriting a huge debt which they are responsible for. This is why it is necessary to make sure any outstanding debt (or acknowledgement that no money is owed) is properly disclosed, via an estoppel certificate as a protection to the new owner. Often the title company will request an estoppel certificate on the owner’s behalf and any amounts owed will be paid off at closing.

Why does it cost money to get an estoppel? Someone has to take the time to do the research and prepare the certificate for the sale to happen. It is critical that the information is correct since the estoppel is legal proof of the amount owed. The owner (not the association) has to pay for this document, which is typically prepared by the management company, association staff, association attorney or bookkeeping company.

Estoppels are rarely as simple as providing an amount owed. In addition to listing any amounts owed to the association, the estoppel often contains other critical information such as:

  • Are there any outstanding violations on the property?
  • In addition to the regular maintenance, is there a special assessment ongoing?
  • Are there any pending special assessments that may not have been billed yet?
  • Is a capital contribution required?
  • Are there any other associations this property owner may owe money to?

These are just a few of the dozens of questions that are often asked by title companies on estoppel requests, which can become very time consuming.

Here is a short article that describes the law around estoppels.

Legal disclaimer: I am not an attorney. This should not be considered legal advice.

Thank You to Campbell Property Management


 

If you need help with an Estoppel Certificate and or Collection of outstanding Monies owed by an Owner for a Condo and or HOA:

Search our Directory: SFPMA Members Directory over 70 categories for everything you will need for your Florida properties.   Attorneys HOA Condo Associations   Accountants & Collections

 

Tags: , , ,
The Screening Process: How to Develop Procedures and Train Your Screening Committee

The Screening Process: How to Develop Procedures and Train Your Screening Committee

  • Posted: Jul 14, 2022
  • By:
  • Comments: Comments Off on The Screening Process: How to Develop Procedures and Train Your Screening Committee
If you know anyone who will benefit from these events, please share this email.
CAMS…please share with your Boards and interested homeowners.
Wednesday, July 20, 2022
5:00pm to 6:00pm Eastern | Live via Zoom
The Screening Process: How to Develop Procedures and Train Your Screening Committee
Join Lisa A. Magill, Esq., BCS from our Pompano Beach office.
Associations often fail to have clearly defined procedures for handling transfer (sale/lease) approvals, leading to liability exposure, not only for the corporation, but also for individual board members and Community Association Managers (CAMs). Participants in this course will learn how to create and adopt transfer approval procedures, what should be included on the transfer approval application, how to comply with local government ordinances, how to comply with Fair Credit Reporting Act requirements and how to train screening committee members, board members and staff to conduct the transfer approval process and interview.
Course# 9630149 | Provider# 0005092 | 1 CEU in HR
The Kaye Bender Rembaum Team Remains Available To You and Your Community Association
Visit KBRLegal.com for awesome free resources, including 2021 Legislation, news with Legal Morsels and Rembaum’s Association Roundup, and our Event Calendar, including upcoming free classes.
Kaye Bender Rembaum | Visit Us Online
Pompano: 1200 Park Central Boulevard South; Tel: 954.928.0680
Palm Beach Gardens: 9121 North Military Trail, Ste. 200; Tel: 561.241.4462
Tampa: 1211 N. Westshore Boulevard, Ste. 409; Tel: 813.375.0731
Tags: , ,
Violation Remedies: Self Help vs. Injunction by Jeffrey Rembaum, Esq. of Kaye, Bender, Rembaum

Violation Remedies: Self Help vs. Injunction by Jeffrey Rembaum, Esq. of Kaye, Bender, Rembaum

  • Posted: Jul 14, 2022
  • By:
  • Comments: Comments Off on Violation Remedies: Self Help vs. Injunction by Jeffrey Rembaum, Esq. of Kaye, Bender, Rembaum

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. 

Find out more about KBR Legal – If your community is looking for representation give us a call.

Kaye Bender Rembaum is a full service commercial law firm devoted to the representation of community associations throughout Florida. Under the direction of attorneys Robert L. Kaye, Esq., Michael S. Bender, Esq., and Jeffrey A. Rembaum, Esq. Kaye Bender Rembaum is dedicated to providing clients with an unparalleled level of personalized and professional service regardless of their size and takes into account their individual needs and financial concerns. Most of our attorneys are Board Certified in Condominium and Planned Development Law.

Tags: , ,
WILL THE NEW LAWS BE DEVASTATING FINANCIALLY TO SOME FLORIDA RESIDENTS?

WILL THE NEW LAWS BE DEVASTATING FINANCIALLY TO SOME FLORIDA RESIDENTS?

  • Posted: Jul 14, 2022
  • By:
  • Comments: Comments Off on WILL THE NEW LAWS BE DEVASTATING FINANCIALLY TO SOME FLORIDA RESIDENTS?

WILL THE NEW LAWS BE DEVASTATING FINANCIALLY TO SOME FLORIDA RESIDENTS?

By Eric Glazer, Esq.

In a word — YES. Are all these new laws really necessary?  In a word –YES.  This is all happening due to a complete lack of foresight and planning by The Florida Legislature.  Mandatory Reserves and Mandatory Inspections should always have been the law.  I urged The Florida Legislature in May of 2018 to make reserves mandatory.  Instead they waited for a building to collapse and for 98 people to die before making these common sense laws.  Of course a building should require an inspection after 25 or 30 years.  Of course a building should be required to make necessary repairs to prevent a potential collapse.  Of course a building should be required to put away money each month for future repairs.  Of course that amount should be determined by a professional architect or engineer and not an unqualified board member who has a financial interest in the outcome of the reserve study. These laws should have been required thirty years ago, as building started to boom.  Instead however, The Florida Legislature always caved to the developer lobby in order to keep the cost of living in a condominium artificially cheap, and the sale of units flowing.  Now, because these laws were not in place thirty years ago, current condominium owners have a lot of catching up to do financially to pay for the sins of the past.

 

The days of a couple or a widower from up north retiring to a high rise condominium in Florida if their sole income is social security are done and over.  That cannot happen anymore.  They need to look for a condominium less than three stories in height that has some reserves put away.

 

If your condominium is at least 30 years old and is 6 stories or higher, has no fire sprinklers or  Engineered life safety system, has not yet undergone a Mandatory Phase One and Phase Two Inspection, has not made the repairs required by those inspections and has no reserves in the bank, you are now forced to either sell your condominium unit immediately or pay massive special assessments that you may not be able to afford, or even come close to affording it.

 

On the flip side, if your condominium is at least 30 years old and is 6 stories or higher, and already has fire sprinklers or  an Engineered life safety system, has already undergone a Mandatory Phase One and Phase Two Inspection, has already made the necessary repairs, and is fully funding reserves, you have little to nothing to worry about.  Your monthly assessments should remain where they are, give or take the increases in insurance that are simply astronomical.

 

Developers are waiting to pounce.  They are focusing their attention on those condominium at least 30 years old and are 6 stories or higher, but has no fire sprinklers or Engineered life safety system, has not yet undergone a Mandatory Phase One and Phase Two Inspection, and has not made the repairs that will be required by those inspections and has no reserves in the bank.  Developers will be approaching the Boards of these condominiums with offers to buy everyone’s unit for a certain price.  You will either consent to selling or have to pay the costs for all these inspections, repairs and funding of reserves.  For many there will be no choice at all.  They will have to sell and somehow find housing elsewhere.

 

Like everything else, the poor people or even the average workers who had saved up enough money for a down payment on their condo and proudly purchased their unit, they will get hit the hardest.  In reality, in upper class buildings, they were either putting reserve money aside all along, or worse comes to worse they can stroke a check for these increased costs.  They’re OK.

 

This will take years to sort out.  Some condos simply won’t be able to comply with the new laws and the owners will sell out to a developer.  Some condominiums will opt not to sell and pass massive special assessments and/or borrow the money from a bank.  Either way their expenses are going up.  Many associations will be foreclosing on many of their owners who can’t afford these special assessments.  I can tell you that even before these massive changes go into effect, foreclosures are already on the rise, simply due to nearly $6.00 per gallon of gasoline and out of control food prices.  These new laws will start what I believe will be a tremendous increase in foreclosures, perhaps as bad as 2007 and 2008.  Yet, all of it is necessary.  You can’t allow buildings not to get inspected, you can’t allow building not to get fixed, you can’t allow buildings not to have fire safety measures and you can’t allow buildings to deliberately waive a requirement to put funds away each month for future structural repairs.

 

The Band Aid was ripped off in one shot.  As a result, Florida condominiums and their owners will have some tough financial times ahead.  There will definitely be gentrification in some neighborhoods.  The look, feel and face of Florida will change going forward.  If only these measures were passed when these buildings were being built so people would not be forced out of their homes today.  There simply was no foresight and now the change won’t be smooth and gradual, but will be difficult and immediate.  And yet, there’s no other way to go.  A collapse like Champlain Towers can never happen again.

 

Tags: