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Selective Enforcement: A Grossly Misunderstood Concept by KBRLegal

Selective Enforcement: A Grossly Misunderstood Concept by KBRLegal

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

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

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

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

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

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

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

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

From these important cases, it can be gleaned that

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

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

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

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

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

 


Kaye Bender Rembaum

We are dedicated to providing clients with an unparalleled level of personalized and professional service regardless of their size and takes into account their individual needs and financial concerns. Our areas of concentration include

1200 Park Central Boulevard South, Pompano Beach, FL. Tel: 954.928.0680
9121 North Military Trail, Suite 200, Palm Beach Gardens, FL. Tel: 561.241.4462
1211 N. Westshore Boulevard, Suite 409, Tampa, FL. Tel: 813.375.0731
  • Assessment collections
  • Construction defect claims
  • Contract drafting and negotiation
  • Cooperatives
  • Covenant enforcement
  • Fair Housing
  • Land Use and Zoning
  • Litigation and Arbitration
  • Master/ Sub Association Issues
  • Pre and Post Turnover Planning
  • Real Estate and Title Concerns
  • Review and amendment of covenants
Kaye Bender Rembaum is a full service commercial law firm devoted to the representation of more than 1000 community associations throughout Florida. Under the direction of attorneys Robert L. Kaye, Esq., Michael S. Bender, Esq., and Jeffrey A. Rembaum, Esq. Kaye Bender Rembaum is dedicated to providing clients with an unparalleled level of personalized and professional service regardless of their size and takes into account their individual needs and financial concerns.your interest in Kaye Bender Rembaum.

 

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Glass repair, replacement, coverings and tinting services to the residential, automotive and commercial markets, Find Top SFPMA Members

Glass repair, replacement, coverings and tinting services to the residential, automotive and commercial markets, Find Top SFPMA Members

  • Posted: Jan 06, 2022
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Glass repair, replacement and tinting services to the residential, automotive and commercial markets

If you’re ready to give your home a new look or save on heating and cooling bills, your windows are a great place to start. But with so many ways to renovate the windows in your home, where do you even begin?

Are solar screens an option, and do they really work? What are the advantages of Double Pane windows? If you’re scratching your head wondering which window option to choose, you’re not alone! Because there are several options to choose from, this article will help you figure out which windows might work best for your home and budget. To make that process easier, let’s take a look at a few of the most popular window options available.

Before reviewing the different window options available, it should be noted that energy efficiency should be a major consideration when deciding which type of windows you choose for your home. Energy efficient windows can help lower your monthly heating and cooling cost, and can result in significant savings over time.

Impact Windows

While the initial cost of impact windows might be a little more, they offer a significant advantage when it comes to protecting your home and property from storm damage. If you live in a climate that is prone to hurricanes or severe weather, impact windows provide the type of security and protection that other windows can’t match. Upgrading your home with impact windows can also help increase the overall value of your home. Since your windows are often the weakest point in a home, impact windows help minimize the threat of damage to your home.


Scratch Removal Specialists

800-806-8807

Our Philosophy and Mission

With over twenty-years of South Florida experience in the glass restoration industry, Scratch Removal Specialists, Inc. strives to provide the most professional and cost effective solutions to your glass restoration needs.  Our company culture of professionalism, safety, training, and customer satisfaction makes us stand-out as the best choice in the glass restoration industry.  From a single window repair, to an entire building restoration, we have the experience and staffing to take on your project with the the care and professionalism it deserves.

 

 


IGU (Double Pane Windows)

Insulated glass windows, also referred to as double-pane windows, consist of two or more pieces of flat glass separated by gas or air that is injected between them. Two pieces of glass certainly provide more protection as opposed to one. However, since glass is a poor insulator by nature, the thickness of the glass may not be as important as what’s in between those two panes of glass. This space is typically filled with either air or gas (like krypton or argon) which helps boost the windows’ insulating power and inhibits heat transfer. Not only are insulated glass windows incredibly energy-efficient, but they also add a layer of comfort to your home by helping to reduce the amount of air that escapes through your window and the level of outside noise.

Low-E Glass

Low-E, which stands for low emissivity glass, is a kind of thin coating (thinner than a strand of human hair) that is applied to windows to make them substantially more energy-efficient. While window tints use a type of film to minimize heat, low E-glass uses a colorless, non-toxic coating instead. Low-E glass minimizes how much ultraviolet light passes through the window. This can help enhance the natural lighting in your home and reduce heating and cooling costs. Low-E glass is a great investment if you’re looking to make a subtle upgrade of your windows while staying cost-effective.

If you decide to update rather than replace your windows, here are some other ways in which you can make them more energy efficient in the process.

 


Allstate Tint & Blinds

Call us at 954.963.9877 or Request a FREE Estimate Today!

Founded in 1988 in Hollywood, Florida and has served 1,000′s of customers with premium automotive, residential, commercial and marine window tinting. We carry Suntek and Huper Optiks Ceramic Window Films.  In addition to Window Tinting,  Allstate Tint & Blinds offers Roll-Up Shades, Vertical Blinds, Bamboo Blinds, Faux Blinds and 2″ Wood Blinds.

In 2013, Allstate Tint & Blinds celebrated their Grand Opening of their new location at 2011 SW 70th Avenue, #A17, Davie, Florida 33317 (Located across the street from the Signature Grand) We advise to please call ahead for an appointment, or as always you are welcome to drop off your vehicles.

 


 

Solar Screens

Solar screens are made up of dark, tightly woven mesh that can be installed on the outside or on the inside of your window. Installing solar screens offers a few advantages. They are relatively inexpensive and can help reduce energy usage. They are also a great solution for any windows that receive extended exposure to the sun throughout the day. Solar screens help reduce the amount of heat inside your home, blocking as much as 90% of outside heat. They also help reduce glare, protect privacy, and help prevent heat damage to the interior of your home.

Window Tinting

Window tinting is another option if you’re looking to upgrade your windows without replacing them. Windows can be tinted in a wide range of colors and shades, and with a variety of different materials. Each treatment can accomplish a different purpose, or help achieve a certain look, with different pros and cons for each.

Here are the five most common types of window tint:

  1. Standard – Helps block sunlight
  1. Ceramic – Considered the best type of window tint as it reflects the sun’s UV rays and reduces glare.
  1. Decorative – Used for aesthetic purposes and replicates the look of stained/frosted glass. It’s commonly used to transform regular windows into ornate ones without having to replace the glass or install a new window.
  1. Security – Used to reinforce and strengthen windows to help protect against breakage and natural disasters.
  1. Solar – Provides a scratch-resistant coating and utilizes polyester laminate. This film reduces UV and IR rays as well as glare, which helps improve visibility.

 


Cool World Window Tinting Solutions

(954) 871-5870

We are the South Florida Leading Window Tinting Company. We only use the Highest Quality of Products in our Industry. Which means that the job we do Lasts.

Cool World Window Tinting Solutions is an authorized Madico Sunscape & SolarGard window tint dealer, with over 20 years window tinting experience.

Cool World Window Tinting Solutions uses only high-quality Madico window films, which are guaranteed not to bubble or change colors and will keep your home, office or auto comfortably cool for many years to come.

Cool World Window Tinting Solutions is a fully mobile window tint company that will come to you at your home or office.  Cool World Window Tinting Solutions is fully licensed and insured and offers a full line of window tinting products to maximize energy savings for your home or business.


Jansen Shutters & Windows

941-484-4700

It is our goal to shelter your family, protect your investments and secure your well-being.

The Jansen Family have been serving the homeowner and construction industry of the Florida Gulf Coast from Fort Meyers to North TampaTarpon Springs and the Islands since 1973. In 2002, Phillip Jansen and his son Travis opened Jansen Shutters & Windows with the intention of providing the best hurricane protection necessary to ensure the safety of your family and business.

As our company grew we expanded out product line to include, Out Door Living Products. Which includes our exclusive “Jansen Vista” Motorized Insect Screens, Fabrication, Louver, Pergolas and more. We are proud to say everything we manufacture is American Made. Our work does not stop at installation, we believe it is necessary to educate our customers about the products we provide. So you can pick the best products that fits your lifestyle and budget.


 

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A Guide to Healthy Lakes in 2022 & Beyond  by SOLitude

A Guide to Healthy Lakes in 2022 & Beyond by SOLitude

  • Posted: Jan 06, 2022
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Lake Restoration: A Complete Guide to Maintaining Lake & Pond Health

At SOLitude Lake Management, we believe healthy, balanced waterbodies allow our clients to create meaningful experiences on and around their waterbody. We are dedicated to making water a more healthy and beautiful part of our world by utilizing sustainable management solutions and innovative technologies that improve water quality, enhance beauty, and preserve natural resources.

For many cities, lakes, ponds, and waterways are a major attraction and part of what makes living there so special. From the rivers to the beautiful lakes and ponds throughout communities and golf courses, water is central to everyday life. However, you may not have given much thought to what goes into maintaining all of these beautiful waterways.

Maintaining a lake is more complicated than you may realize. It requires ongoing water quality monitoring and management to help ensure the lake continues to thrive and that people can continue to enjoy it. Without regular management of your lake or pond, the waterway can become unusable.

Ongoing monitoring and maintenance is the key to maintaining a waterbody that meets your needs. This is why an annual management approach is so beneficial for any aquatic ecosystem. Learn more about year-round management and the benefits of a SOL Pro Annual Management Program. With regular professional oversight and care, you can enjoy your waterbody for years to come.

 

Complete the form, receive this informative guide

 

The Importance of Healthy, Balanced Waterbodies

Freshwater ecosystems serve many purposes. They support irrigation, stormwater collectiondrinking water, water sports, and recreational fishing. Regardless of their function, management is necessary to support the biodiversity and environmental health of the waterway.

Water can also have a significant impact on property values. In housing developments, no one wants to smell or look at an unsightly, overgrown lake or pond. That’s why it is critical for HOAs and apartment complexes to adequately manage their waterways.

Lake restoration is an important process in which a wide range of management techniques are used to restore a lake to its original state or to a state that better supports the health and well-being of the aquatic system, including plants and animals. It’s important to understand why problems, which often manifest as algae, occur before preventative solutions can be implemented.

 

Understanding Algae and Cyanobacteria

The word “algae” often gets used informally as a catch-all term that can include a wide array of organisms that are not always closely related. Sometimes, when people refer to “algae,” they may actually be talking about cyanobacteria, also known as “blue-green algae” or “toxic algae.” It actually is not algae at all.

Cyanobacteria appear in several different forms. It can appear as hair-like filaments, slimy coatings on plants, or a green, soupy-looking substance suspended in the water column. Cyanobacteria can release toxins that can harm your waterway. The toxins are the cyanobacteria’s way of defending themselves against other competing organisms, but they can also harm fish, wildlife, pets, and humans.

Excessive runoff and pollution is a common source of this problem. This runoff can lead to nutrient loading that will eventually upset the balance of a waterway’s aquatic system. Grass clippings, pet waste, eroded sediment, and landscaping fertilizers all contribute to nutrient loading. Managing the conditions that contribute to nutrient loading is crucial to keeping the harmful cyanobacteria and nuisance algae in check.

 

Aeration

In both ponds and lakes, aeration systems are used to increase the oxygenation and circulation of the waterway. A pond aeration system can be in the form of a floating fountain or consist of submersed diffusers strategically located at the bottom throughout the waterbody. Aeration helps improve the overall health of the aquatic system by converting nutrients to forms that do not sustain organic growth. Likewise, if muck development is severe, new tools like Oxygen Saturation Technology (OST) can be used to target dissolved oxygen to the bottom sediments where it will remain and aid in the natural digestion.

 

Shoreline Management

Unhealthy shorelines are a large contributing factor to nutrient loading. In addition to releasing sediment, unstable and eroded shorelines can allow stormwater runoff to flow directly into the water, polluting the ecosystem. SOX Solutions is a knitted mesh material that can be used to physically reshape and anchor the shoreline for many years of stability. Planting native, deep-rooted vegetation around the

 

Nutrient Remediation

Lakes and ponds suffering from chronic nutrient loading may be excellent candidates for proven nutrient-locking technologies like Phoslock and Alum. These products can help inactivate excess nutrients, making them unavailable for fueling nuisance plants and algae. Phoslock, specifically, is a lanthanum-modified clay that rapidly binds and permanently removes free reactive phosphorus from the water column shortly after application. It is also effective in locking up the phosphorus in the bottom sediments. This helps return the pond to its naturally beautiful state.

 

Biological Treatments

Dead algae, along with other build-ups of sludge and bottom sediment, can occur in your waterway. This is a natural process, but poor management can expedite this build-up. Biological treatments (which are like a probiotic for your waterbody) introduce naturally occurring cultures into the water. They digest undesirable organic muck and help clear excess nutrients from the ecosystem. This process can also help raise the dissolved oxygen levels in the pond and help beneficial aquatic plants, fish, and animals thrive.

 

Mechanical Hydro-raking

Nutrient-rich muck and detritus can be removed physically with a hydro-rake, which is essentially a floating backhoe capable of removing up to 500 pounds of material in one scoop. These materials are then taken from the shoreline for off-site disposal. This process not only helps remove excess nutrients, but also helps restore lake and pond depth and volume – reducing flooding, cloudiness, and bad odors.

 

Herbicides and Algaecides

In urgent circumstances, herbicides and algaecides can be used to quickly eliminate nuisance algae and weeds. Lake and pond management professionals only use products that are registered with the Environmental Protection Agency (EPA) and formulated to specifically target the undesirable growth in your waterbody. However, herbicides and algaecides should only be used as a last-resort option when it is too late for preventative action.

 

Grass Carp

Sterile triploid grass carp serve as a “biological control” option for nuisance aquatic vegetation. Triploid Grass Carp can help reduce the amount of pesticides required for the management of nuisance and invasive vegetation. Though EPA-registered aquatic herbicides play a key role in safe and responsible plant management, they should generally be viewed as a last resort option for stubborn infestations.

 

 

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

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

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

 

 

WHY HIRE A PUBLIC ADJUSTER?

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

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

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

 

1. HOW LONG HAVE THEY BEEN IN BUSINESS?

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

2. ARE THEY PART OF A TEAM?

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

3. ARE THEY LICENSED IN FLORIDA?

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

4. DO THEY HAVE EXPERIENCE WITH CLAIMS LIKE YOURS?

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

5. HOW DO THEY GET PAID?

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

6. DO THEY HAVE EXPERIENCE DEALING WITH MORTGAGE LENDERS?

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

7. WHO WILL PREPARE MY CLAIM?

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

8. CAN I STAY INVOLVED WITH MY CLAIM?

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

9. CAN THEY PROVIDE LOCAL REFERENCES?

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

10. HOW MANY CLAIMS ARE THEY HANDLING?

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

11. WHAT ARE THEIR ERRORS AND OMISSIONS POLICY?

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

 

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

 

HOW TO FIND A CLAIMS ADJUSTER IN FLORIDA

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

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

Andria Rosendahl
Public Adjuster
2450 NE Miami Gardens Drive, Suite 200, Miami Florida 33180
Cell: 305-710-7922
Fax: 305-873-8719
E: Andria@stellaradjusting.com
W: www.stellaradjusting.com
Check Out Our Blog At: www.stellaradjusting.com/blog/
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We have 2022 Sales for Members: Advertising in our Magazine and in the News Blast and on our website.

We have 2022 Sales for Members: Advertising in our Magazine and in the News Blast and on our website.

  • Posted: Dec 28, 2021
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Take advantage of our Advertising Sales.

Members Advertising in our magazine,News Blast and Website are avail for the new year.

 


 

ADVERTISING SALES

 

1-  We are running this sale for all members become a featured sponsor of our Email News Blast

  • Every week we publish our Email Blast filled with News, Articles, Member Information, This is sent 3 days every week at 9am
  • Your company send us a 300px by 300px logo picture we link to your website.
  • Be seen by over 230,000 readers as sponsors.  52weeks @3x every week.  In every posted Email your company is set on this with your logo as a featured sponsor.

Special Price of 450.00 for the entire year

This is limited there are only 15 spots  Act now. we are getting ready for 2022

NOTE: our news feed has been upgraded with featured post pictures that are displayed for the Articles in these email blasts.

 

2- Take out Advertising in our Publication – FLORIDA RISING MAGAZINE

  • Take out half and full pages 12 months of company advertising
  • take advantage of this special pricing
  • See our Advertising FLAT Rates: This Special ends FEB 2022.

    Business Card size:(12 months/200.00)

    Quarter Page: (12 months/450.00)

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All Ads taken out for this special will run in every edition at this flat price. You can write articles every month we will publish. Your company is set on the Category sections in our magazine

 

3- Contact us for Advertising banners on the Pages of our website

 

Call us today and lock your Spaces or Fill out the Form We will call you!

 

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    Happy Holidays & A Joyful New Year from the SOLitude Family

    Happy Holidays & A Joyful New Year from the SOLitude Family

    • Posted: Dec 22, 2021
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    Happy Holidays & A Joyful New Year

    As 2021 wraps up, we want to thank you for joining us in our mission to protect freshwater resources.

    We know this past year was difficult for many, but we hope you were able to create memorable experiences on and around your waterbody despite the challenges we all faced. We believe that a balanced waterbody, whether it’s utilized for recreation, stormwater collection, or aesthetics, can make those around it happier and healthier.

     

    As we look forward into 2022 and beyond, we are more passionate than ever to maintain our precious aquatic resources and promote meaningful experiences for our loyal clients.

     

    Our offices will be closed on the following dates:

    Friday, Dec. 24 & Monday, Dec. 27

    Christmas Holiday (observed)

    Monday, Jan. 3

    New Year’s Day (observed)

    During this time, contact us here or leave a message at 888-480-LAKE (5253).

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    Allstate Resource Management specializes in wetland management in South Florida and preventative weed control to maintain a healthy wetland environment.

    Allstate Resource Management specializes in wetland management in South Florida and preventative weed control to maintain a healthy wetland environment.

    • Posted: Dec 22, 2021
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    Allstate Resource Management specializes in wetland management in South Florida and preventative weed control to maintain a healthy wetland environment.

    Wetlands are frequently mandated by state and county statute. When you work with Allstate, you can be assured that we are following all regulations and mandates for wetland preserves and wetland management in South Florida.

    Did you know! In Florida there are more 400 water recycling projects, making our state a national leader in the use of reclaimed water. The treatment process eliminates harmful substances, but leaves traces of nitrogen and phosphorous that act as fertilizers when reclaimed water is applied to lawns and landscape. Reclaimed water can cause spikes in algae growth on lakes.

    Call us at 954-382-9766 for more information on causes for algae growth

     

    May your days be filled with peace, hope, and joy this holiday season.

    As always, thank you for your business, loyalty, and support.

    Sincerely,

    All of us at Allstate Resource Management

     


     

    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. Our services include lake managementwetland managementstormwater drain cleaning and maintenance, erosion controlfish stockingnative plantingsdebris removalwater qualityaquatic pest control, and upland management. All of our technicians are thoroughly trained and certified in order to meet the strict standards imposed by governmental agencies. This ensures that your property will be treated by only the most competent individuals who are proud of the services we render.

    In addition to providing a healthy habitat, we specialize in the installation and maintenance of beautiful color lit fountains, bringing beauty and enjoyment to any lake or pond.

    We also offer support services for property managers and HOA’s including educational presentations and CEU programs. Our approved courses offer continuing education credit to CAMs. Find us on the SFPMA Members Directory.

     A stormwater system is a tool for managing the runoff from rainfall. When rainwater lands on rooftops, parking lots, streets, driveways and other surfaces that water cannot penetrate, the runoff flows into grates, swales or ditches located around your property and neighborhood. These grates, swales and ditches carry the runoff into stormwater ponds. A stormwater pond is specifically designed to help prevent flooding and remove pollutants from the water before it can drain into the groundwater or into streams, rivers, lakes, wetlands, or the ocean.
    Call us today to talk to one of our Stormwater Specialists at 954-382-9766 or info@allstatemanagement.com

    Colleen Sullivan
    Marketing Manager
    www.allstatemanagement.com
    6900 SW 21st Court, Building #9
    Davie, Florida 33317
    Phone: (954) 382-9766

     

     

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    Need some help getting ready for for your tax planning meeting? We have developed the YEAR END TAX PLANNING GUIDE

    Need some help getting ready for for your tax planning meeting? We have developed the YEAR END TAX PLANNING GUIDE

    • Posted: Dec 21, 2021
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    Need some help getting ready for for your tax planning meeting?

    We have developed the YEAR END TAX PLANNING GUIDE, to help you uncover tax planning opportunities to

    Download a copy of this important guide just click here.

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

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

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

    by Kaye Bender RembaumRembaum’s Association Roundup

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

    The Indemnity Provision

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

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

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

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

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

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

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

    Insurance Provisions

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

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

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

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

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

    Paying the Contractor

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

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

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

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

    Prevailing Attorney’s Fees

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

    Termination

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

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

    Payment and Performance Bonds

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

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

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

    Force Majeure

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

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

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

    Happy Holidays from all of us at Kaye Bender Rembaum

     


    Kaye Bender Rembaum

    We are dedicated to providing clients with an unparalleled level of personalized and professional service regardless of their size and takes into account their individual needs and financial concerns. Our areas of concentration include

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

    ONLINE MEETINGS EQUAL… By Rafael Aquino

    • Posted: Dec 16, 2021
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    ONLINE MEETINGS EQUAL…

    By Rafael Aquino

    Online meetings were common practice within the business community; however, it was less seen in the association world.  Some would say because the technology was too difficult for many, others would say, our owners wouldn’t allow it, etc. The reasons against certain groups were plentiful.  However, after the challenges we dealt with Covid, many Board Members quickly realized the vast benefits of hosting online meetings.  Some advantages are increased attendance, more accessible access to foreign/out-of-state buyers, and more transparency.

    From a management perspective, there have been many advantages as well.  It is much easier for management to present to the membership, invite vendors/contracts to attend meetings, and provide a better quality of life for the CAM.  For instance, the CAM no longer has to worry about staying after work for a Board meeting; now, they can drive home, spend some time with the family and then jump on the meeting from home.  Further, they don’t have to worry about the potential drive home after the meeting.  These small perks are enormous for the quality of life for the CAM.  Happier CAM equals happier staff and higher productivity for the association’s operations.


    As the Co-Founder and CEO of Affinity Management Services, Rafael P. Aquino leads his team to redefine excellence. They serve community associations efficiently

    and effectively with dedication and passion. Rafael’s energy and positive spirit is the foundation of Affinity Management Services’ company culture, which instills enthusiasm and excitement when providing expert advice to its board members and relieving the day-to-day burdens of running a community association.

    Since 2007, Rafael has developed a work culture that values responsive and high-quality services. He has led his team by following a proactive vs reactive philosophy. The same approach Rafael instills in the day to day operations of each association. Today, Affinity Management Services maintains its success and benefits as a result of the foundation Rafael has built and continues to foster by providing educational seminars, continuing education classes for association managers and board members alike.Rafael and his team help condominium and homeowners’ associations save money and improve their communities. His calm, personable, and service-oriented nature helps him to establish strong relationships with ease. Rafael is known as a sincere and honest leader who looks out for the best interests of his clients and communities, and he strongly advocates for their needs. His role requires coordination and communication, as such he takes logical and intelligent steps to approach challenges head-on.As a graduate of Florida International University’s electrical engineering program and a licensed community association manager, Rafael’s education and skills equip him with unique insights to tackle complex problems through critical thinking. He understands how each component within a system works together in order to effectively arrive at solutions, techniques, and conclusions. Therefore, as he manages the multiple challenges of running a community association management company, he understands how each property is its own unique system and tailors’ specific services to assure that all their needs are met.

    For more information about Rafael P. Aquino and Affinity Management

    Services please visit www.ManagedByAffinity.com or call 1-800-977-6279

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