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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
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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

 

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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
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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
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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
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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.

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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
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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.

 

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How improper landscape fertilization could be causing lake algae!

How improper landscape fertilization could be causing lake algae!

  • Posted: Jul 14, 2022
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Ring of Responsibility
How improper landscape fertilization could be causing lake algae!
  Tips and Tricks for Homeowners Associations:
  • ONLY FERTILIZE WHEN YOUR YARD NEEDS IT: If your yard already has the right amount of nutrients present, your lawn won’t soak up any of the extra that you have added. All of those extra nutrients will be washed down the drain. If your lawn appears yellow during the summer months, apply an iron product to restore the green. Extra fertilizer will NOT make your lawn greener.
  • NEVER FERTILIZE BEFORE A RAIN STORM: If heavy rain is in the 2-day forecast, wait to fertilize. Any more than 1/4 inch of water may wash away the work you just did.
  • USE A 15-FOOT “FERTILIZER-FREE” ZONE AROUND WATER: When spreading fertilizer, stay at least 15 feet away from the water’s edge and use a deflector shield on your fertilizer spreader.
  • CLEAN UP SPILLS: If fertilizer ends up on a paved surface such as a driveway, sidewalk or street, sweep it back onto your lawn or collect it for later use.
Contact us today on how we can help LOVE your lake!
Direct: 954-382-9766 or info@allstatemanagement.com
Allstate Resource Management | 6900 S.W. 21st Court, Bldg. 9Davie, FL 33404
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Free Webinar: 3 Aeration Solutions for Creating A Beautiful Lake

Free Webinar: 3 Aeration Solutions for Creating A Beautiful Lake

  • Posted: Jul 14, 2022
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FREE WEBINAR:

3 Aeration Solutions for Creating
A Beautiful Lake

 

JULY 28 @ 3:00 PM (EDT)

There may be several underlying reasons your lake looks bad, but one common cause of ugly water is low oxygen levels.

During the webinar, our aeration experts will explain how fountains, surface aerators, and submersed aerators can help create beautiful water that you can appreciate. Spots are limited!

Can’t make the live webinar? Register anyway and you will receive a recording.

Carl Abinuman

Aeration Expert,
Aquatic Specialist II

Brendan McCarthy

Aeration Expert,
Business Development Consultant

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Webinar: Insurance Claims and Coverage for Community Associations: Navigating Florida’s Insurance

Webinar: Insurance Claims and Coverage for Community Associations: Navigating Florida’s Insurance

  • Posted: Jul 14, 2022
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The Florida insurance marketplace is in complete disarray. Associations need to be prepared for what the next 18-24 months of a continued hard market will do for their budgets.

Join Becker Shareholder Kenneth S. Direktor and Insurance Office of America Vice President Andrea Northrop, Esq. on Tuesday, July 19, 2022 at 11:00 AM EST

as they discuss the status of the insurance marketplace as it relates to property, liability, directors and officers, and umbrella/excess policies. #Webinar

Florida Condo & HOA Law – Powered by beckerlawyers.com

The Florida insurance marketplace is in complete disarray. While Florida has experienced a difficult property market in the past, we have never seen those conditions carry over simultaneously to multiple lines of coverage. This has both driven up premiums/rates, lessened coverage and created a heightened sense of the reality of the “cost of living” in a condominium in Florida.
Associations need to be prepared for what the next 18-24 months of a continued hard market will do for their budgets. In this course, we will discuss the status of the insurance marketplace as it relates to property, liability, directors and officers, and umbrella/excess policies. We will also cover topics including changes in underwriting expectations, familiarity with Citizens Property Insurance, and budget expectations.
Topics Covered:
• What coverages are required?
• The impact of increasing premiums.
• The importance of the appraisal, adequate coverage, and supplemental policy riders.
• Distinguishing coverage and reconstruction obligations from maintenance and repair obligations.”
This program is not eligible for CEU credit or certificate of completion.
________________________________________
This is going to be presented on Zoom! Full live viewing instructions will be sent to all registrants.
________________________________________
REGISTER NOW:
https://online.beckerlawyers.com/…/landi…/rsvp-blank.asp
________________________________________
SPEAKERS:
Kenneth S. Direktor
SHAREHOLDER
Ft. Lauderdale
Becker
kdirektor@beckerlawyers.com
Andrea Northrop, Esq.
VICE PRESIDENT
Insurance Office of America
Andrea.Northrop@ioausa.com
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Don’t Forget Qualifying Business Meals at Restaurants Are 100% Deductible This Year!

Don’t Forget Qualifying Business Meals at Restaurants Are 100% Deductible This Year!

  • Posted: Jul 14, 2022
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Don’t Forget Qualifying Business Meals at Restaurants Are 100% Deductible This Year!

So, what is a qualifying meal and who can deduct it?
Business meals are only deductible by the business. This includes partnerships, corporations, S corporations and sole proprietorships.
The deduction for business meals is generally 50% of the actual expenditure however until the end of 2022 100% of the cost of meals consumed in a restaurant are deductible. Avoid getting your business lunch at Seven Eleven or the grocery store where they are only 50% deductible and be sure to use a restaurant.
To be deductible the meal’s cost must be paid for by the business, either directly or through a reimbursement. Business meals are NOT deductible by employees. If you receive a W2 and are not reimbursed unfortunately you are out of luck, as you are unable to deduct this amount from your return.
For a business meal to be deductible it must be:
(1) ordinary and necessary AND paid or incurred during the tax year;
(2) NOT lavish or extravagant under the circumstances;
(3) the taxpayer, or an employee of the taxpayer, must be present at the furnishing of the food or beverages;
(4) food and beverages are provided to someone with a business relationship to the taxpayer’s business, a current or potential business customer, client, consultant, or similar business contact; and
(5) must not include the cost of entertainment
The deduction also requires substantiation be maintained including, the amount spent, the time and place, the business purpose, and the business relationship of the individuals involved. It’s important to set up a detailed record-keeping procedures to keep track of each business meal and to justify its business connection.
Accountant
We can service clients by phone, through a zoom meeting, and in our office.
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How To Settle a Debt with an HOA Collection Agency

How To Settle a Debt with an HOA Collection Agency

  • Posted: Jul 14, 2022
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How To Settle a Debt with an HOA Collection Agency

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We publish information daily to all of our Social Media Pages and Groups; sfpma marketing

We publish information daily to all of our Social Media Pages and Groups; sfpma marketing

  • Posted: Jul 10, 2022
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We publish information daily to all of our Social Media Pages and Groups; Facebook, Twitter, Google, LinkedIn …..Join follow and sign up become part of….

As a member are you sending us articles?

Are you using your membership to get infront of the decision makers?

Summer is here, Our team of over 77 are still working each and every day keeping everyone informed.

 

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!

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!

By utilizing Social Media, Clients get to know and trust that your company is here to stay! These visitors and clients will reshare details that you post about workmanship, advances or just new work you have performed. When you are proud about what your company does, and share, viewers see this and reshare and like your pages. Great Lead Generation – And its Free. Put some work into your Social Media Presence.

Social Media

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

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

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

Don’t wait: Make a Plan Today

Finding Trusted Companies that work with our Industry is important!

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

Find more on our website >>>

FloridaAdjusting.com

WHAT WE PROVIDE CONDO & HOA’S

Property Inspections & Site Analysis

Review of your Insurance Policy

Damage Report Backing up the Claim

Loss Estimates Documentation

Negotiation and Settlement with Insurance Companies

 

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