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

Association Publication of Deadbeat List & Third-Party Purchaser Assessment Liability: by KBRLegal

Association Publication of Deadbeat List & Third-Party Purchaser Assessment Liability: by KBRLegal

Association Publication of Deadbeat List & Third-Party Purchaser Assessment Liability:

by KBRLegal

Two New Cases Board Members and Managers Need to Know About

 

CASE No. 1: On June 12, 2020, the Florida’s Fifth District Court of Appeal (“5th DCA”) entered its opinion in Latheresa Williams, On Behalf Of Herself And All Others Similarly Situated v. Salt Springs Resort Association, Inc., and Bosshardt Property Management, LLC., Case No. 5D18-3913 (Fla. 5th DCA 2020), The holding of this case echoes advice I have all too often provided to board members and managers to NOT publish what is commonly referred to as a “deadbeat list.” This type of list is posted in the community and identifies each debtor’s name and sometimes the assessment balance past due, too. No good ever comes from publication of such a list. In fact, the Florida Consumer Collection Practices Act (the “FCCPA”) forbids it if such publication of the deadbeat list is to harass and/or annoy the debtor.

 

More specifically, section 559.72, Florida Statutes, provides in relevant part that “[i]n collecting consumer debts, no person shall… [p]ublish or post, threaten to publish or post, or cause to be published or posted before the general public individual names or any list of names of debtors, commonly known as a deadbeat list, for the purpose of enforcing or attempting to enforce collection of consumer debts.”

 

In this case, the plaintiff was seeking class action status for all others similarly treated. This could lead to tremendous liability should discovery later evidence that the association and/or its management company regularly published deadbeat lists. At trial, the court had granted a motion to dismiss filed by the association based on a prior case, Bryan v. Clayton, also a 5th DCA case dating back to 1977 where the Court held that maintenance assessments were not “debts” for purposes of the FCCPA. In order to re-consider the prior Bryan decision, all of the 5th DCA sitting appellate judges participated in the Williams case, a process legally known as an “En Banc” style of review.

 

The Court in Williams took note that the FCCPA is designed to protect consumers and does not limit unlawful activities only to “debt collectors,” but rather to “all persons” involved in the collection of a debt. By way of contrast, the Federal Fair Debt Collection Practices Act (FFDCPA) applies only to debt collectors, which excludes the association and arguably its management company, and not to “all persons” involved in the collection of a debt, as in the FCCPA.

 

Under the prior Bryan holding, a past due assessment obligation was not even considered a “debt” for purposes of the FCCPA and the FFDCPA. In the recent Williams case, the Court went to great lengths to explain that, in fact, an association assessment obligation “is a debt which arose out of an obligation by a consumer out of a money, property, insurance or services transaction which is primarily for personal, family, or household purposes” and is therefore subject to FCCPA.

 

Thus, the Court remanded the case back to the trial court for further proceedings. While, its unknown how the plaintiff’s attempt for a class action certification will resolve, it is extremely likely that one or more defendants will be found to have violated the FCCPA for having published the “deadbeat list.” The takeaway from the Williams case is to never, ever publish a list of association debtors. This does not at all mean that the board cannot be provided a list of those members delinquent in their assessment obligations. However, it does mean such a list should not be made readily available to the membership by posting or mailing, etc.

 


 

CASE No. 2: On May 20, 2020, Florida’s Third District Court of Appeal entered its opinion in Old Cutler Lakes by the Bay Community Association, Inc. v. SRP SUB, LLC, Case No. 3D19-528 (Fla. 3d DCA 2020) regarding the liability of a third-party purchaser at a mortgage foreclosure sale for assessments that came due prior to the third-party acquiring title to the property. The Court’s holding in this case is in line with its prior holding in the case of Beacon Hill Homeowners Association, Inc. v. Colfin Ah-Florida 7, LLC, 221 So. 3d 710 (Fla. 3d DCA 2017), which based its decision on the landmark case decided by Florida’s Fourth District Court of Appeal in Pudlit 2 Joint Venture, LLP v. Westwood Gardens Homeowners Association, Inc., 169 So.3d 145 (Fla. 4th DCA 2015).

 

In the Old Cutler Lakes case, SRP SUB, LLC (“SRP”) was the successful bidder at a foreclosure sale on a first mortgage held by Wells Fargo. After obtaining title by a certificate of title, SRP filed an action for declaratory relief seeking a determination as to its liability for assessments that accrued prior to the issuance of the certificate of title. In relevant part, the Declaration of Covenant and Restrictions of Old Cutler Lakes by the Bay (“Declaration”) provided the following:

 

The sale or transfer of any Lot pursuant to the foreclosure or any proceeding in lieu thereof of a first mortgage meeting the above qualifications, shall extinguish the lien of such assessments as to payments which became due prior to such sale or transfer.

 

This language is similar to the language contained in the declarations in the Beacon Hill and Pudlit 2 cases. In these cases, the courts applied a constitutional principal prohibiting the impairment of contracts in deciding that the statutory safe harbor did not control over the provisions of the declarations where the statute did not require such application and the declarations did not contain “Kaufman” language, which has the effect of making amendments to the Florida Statutes automatically applicable to a declaration as they are “amended from time to time.” As the provisions of the declarations expressly created rights for third-party purchasers, the third-party purchasers are “intended third-party beneficiaries” to such provisions which rights cannot be impaired pursuant to the constitutional principal prohibiting the impairment of contracts. In following the holdings of the Beacon Hill and Pudlit 2 cases, SRP was found not liable for any of the past due assessments that accrued prior to the issuance of the certificate of title. Thus, as with many declarations which have not been amended since their creation by the community’s developer, these, as yet to be amended, declarations may provide for a complete wipe out of all assessments that accrued prior to the transfer of title as a result of a mortgage foreclosure action or by deed in lieu of foreclosure.

 

The takeaway from the cases discussed above emphasizes the importance of reviewing and updating the association’s declaration, with the guidance of your association’s legal counsel, to ensure that it provides for necessary and available protections for the association and its members, including the use of “Kaufman” language, if appropriate to collect as much overdue assessment revenue as possible.

 

 

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

The health and safety of your Community and all residents is very important to us. We also realize that our clients have uncertainty and concerns around the continuing operation of your Community, and our team of attorneys will remain available to all of you during these times.

Be sure to check out our very useful and informative COVID-19 section on our website, which is updated regularly, as we continue to follow developments affecting community associations. You can visit it by clicking HERE.

 

 

 

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Q&A Broward County Emergency Order 20-25 – Impact on Community Associations by KBRLegal

Q&A Broward County Emergency Order 20-25 – Impact on Community Associations by KBRLegal

Q&A Broward County Emergency Order 20-25 – Impact on Community Associations

by KBRLegal

Join Campbell Property Management and Michael Bender from Kaye Bender Rembaum to learn about Broward County’s latest Emergency Order 20-25 and its impact on community associations during this brief, 30 minute webinar.

Wednesday, September 30 at 12:00 PM

Please submit a question you would like us to answer when you register. We will address as many questions as possible during the webinar.

Register Here!

 

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IS CAMPAIGNING ALLOWED IN YOUR ASSOCIATION ELECTION?  By Eric Glazer, Esq.

IS CAMPAIGNING ALLOWED IN YOUR ASSOCIATION ELECTION? By Eric Glazer, Esq.

IS CAMPAIGNING ALLOWED IN YOUR ASSOCIATION ELECTION?

By Eric Glazer, Esq.

Election season is approaching in community associations all across the state.  We already learned that if the governing docs say “No signs” you can’t put out Trump or Biden signs on your property.  But what about the people running for the Board in your own community?  Can they at least campaign?

Many associations do a wonderful thing.  They hold a “Meet the Candidates Night.”  Everyone running for the Board gets to speak to the community for a few minutes.  The truth is however, incumbents have it harder on such an evening because the crowd often times interrupts the candidate by yelling about some dumb decisions the candidate previously made while on the board.  The newbies have it easier.  However, if you have a Meet The Candidates Night by Zoom or some other video conference, everyone can be muted while the candidate speaks.  I definitely recommend it and I have hosted several of these previously.

Can the Board send out a letter to the community suggesting how people vote and/or telling everyone why they should vote for the incumbents again?

 

The Florida Administrative Code states: (for condominiums)

The second notice and accompanying documents shall not contain any communication by the board that endorses, disapproves, or otherwise comments on any candidate.

In other words – when the ballots gets sent out – no comments by the Board.

But that’s it.  That’s the only mention about campaigning in the law.  Now obviously, Board members should not be utilizing association resources for their personal elections.  They should not be using association letterhead, envelopes and contacting members by accessing their e-mail addresses that the other candidates don’t have access to.

However, no candidate is prohibited from spending their own resources and creating a letter to send to the unit owners telling them why they are the best man or woman for the Board position.

Good luck to all the candidates!


Learn how to perform your new job on the Board!

Responsibilities of a Board of Directors for a Condo Association

The duties of the condo board encompass every aspect of the condominium’s governance and management. They are the people making all of the major decisions and establishing policies for the condo association. Under Florida law, the board or its committees set assessments for residents, hire personnel, maintain common areas, purchase insurance, obtain accounting and legal services and establish house rules.  Condominium Associations

 

 

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Join Episode 12 of Association Operations During COVID-19. by KBRLegal

Join Episode 12 of Association Operations During COVID-19. by KBRLegal

Join Episode 12 of Association Operations During COVID-19.

by KBRLegal

Your are invited to join episode 12 of Association Operations During COVID-19.

This week’s episode will include what to expect from Phase 2.

Panelists include Jordan Goldman- Castle Group, Executive Vice President, and

attorneys Michael S. Bender & Allison L. Hertz- Kaye Bender Rembaum, P.L. – Board Certified Specialists in Condominium and Planned Development Law.

Click this link to Register

 

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WEBINAR: HOW TO INSURE AGAINST COVID-19by KBRLegal w/ Michael Bender, Esq and others

WEBINAR: HOW TO INSURE AGAINST COVID-19by KBRLegal w/ Michael Bender, Esq and others

WEBINAR: HOW TO INSURE AGAINST COVID-19

09/16/2020  12:00 pm – 1:30 pm

https://kbrlegal.com/event-calendar/

Our own Michael Bender, Esq., B.C.S. will take part on this panel discussion moderated by David Cohen (Akam Management). Panelists also include Jon Moller from Brown & Brown Insurance and John Paul from Super Restoration.

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How to Manage Your Amenities While Allowing Social Distancing  by Concierge Plus

How to Manage Your Amenities While Allowing Social Distancing by Concierge Plus

  • Posted: Sep 14, 2020
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How to Manage Your Amenities While Allowing Social Distancing

by Concierge Plus

Sep 15, 2020 11:00 AM in Eastern Time (US and Canada)

Join this webinar and learn about:

– How to make everyone feel safe and comfortable in a COVID-19 environment.
– How residents’ adoption of digital tools due to COVID-19 will impact your community association.
– How our amenity booking feature can help your community association manage amenities, including gyms and pools, while following social distancing guidelines and provide a great resident experience.Have questions for the speaker? Questions will be accepted during the live webinar only: you’ll be able to type any questions you have directly into the webinar chat box.The webinar will be recorded so if you can’t make the event, sign up anyway and we’ll send it to you to watch on your own time.

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Learn about your HOA! Get involved this year, learn the Laws and how your Board is Governing? | SFPMA

Learn about your HOA! Get involved this year, learn the Laws and how your Board is Governing? | SFPMA

Learn about your HOA:

Many owners in HOA’s all over the country are looking closer at how their homeowners associations are being Governed. Inspection of the Accounting for years was based on trust, not any more! Many Owners want to make sure the fees they pay are being used for the benefit of their hoa. SFPMA has been getting many emails stating misuse accusations, document inspections, higher fees imposed by boards and collections for owners that are not paying. Many dont know what to do or dont care?  We say you should!

Learn more…..

Here are some things you Should be looking at:

1. Learn the HOA’s rules.

You may be able to find an HOA’s CC&Rs online as well as information about what happens if you violate a rule. Make sure any online information is current. If you cannot find this information online, ask your real estate agent to acquire these documents for you or contact the HOA yourself.

Pay particular attention to rules regarding fines and whether the HOA can foreclose on your property for nonpayment of HOA dues or fines resulting from CC&R violations. Also, learn about the process for changing or adding rules, and whether HOA meetings are held at a time you will be able to attend if you wish to do so. If the rules are too restrictive, consider buying elsewhere.

(EVERY HOA SHOULD HAVE A WEBSITE: EVERY OWNER CAN SIGN IN TO AND FIND THE INFORMATION ABOUT THE ASSOCIATION, MEETINGS, ELECTIONS, BOARD MEMBER REPORTS and NOTIFICATIONS AND NEWS)

 

2. Make sure the home you want to buy is not already out of compliance with HOA rules.

Buying into an existing problem can be a headache, so find out what the rules are and whether you would have to make changes to the home to comply.

(IF A PAST OWNER HAD FEES THEY OWED THE HOA, NEW OWNERS COULD BE ON THE HOOK TO PAY THESE TO THE HOA, ASK YOUR ATTNYS AND AGENTS)

 

3. Assess environmental practices.

If environmentally friendly living is important to you, be aware that some HOAs may dictate that you use fertilizers, pesticides, sprinkler systems and whatever else it takes to keep your lawn picture-perfect. They may not allow xeriscaping (an environmentally friendly form of landscaping) and may limit the size of gardens, ban compost piles and prevent you from installing solar panels. So make sure you check the fine print first.

 

4. Consider your temperament.

Are you the type of person who hates being told what to do? If so, living in a community with an HOA may be a very frustrating experience for you. One of the major benefits of home ownership is the ability to customize and alter the property to suit your needs, but HOA rules can really interfere with this.

 

5. Find out about fees.

Fees will differ for each community. Because of this, you should make sure to ask your HOA the following questions:

  • How are HOA fee increases set?
  • How often do increases occur, and by how much have they historically been raised?
  • Can you get a printed history of HOA dues by year for the last 10 years?
  • How large is the HOA’s reserve fund?
  • Also, ask for a record of special assessments that have been made in the past and ask if any special assessments are planned for the near future. Note that economies of scale can mean that special assessments are smaller in HOAs covering large communities, higher in smaller HOAs.
  • Find out what the monthly dues cover. Will you still have to pay extra for garbage pickup? Is cable included?

Compare dues for the complex or neighborhood you are considering to the average dues in the area. Keep in mind that you will have to pay for recreational facilities whether you use them or not. Find out the hours for amenities like pools and tennis courts. Will you be around during those hours, or will you be paying for facilities you’ll never be able to use? Be aware that the HOA may have rules about how many guests can use common facilities. If guest restrictions are severe, forget about that housewarming pool party you envisioned.

(LEARN ABOUT YOUR HOA OR CONDO BEFORE YOU BUY. LEARN WHAT QUESTIONS TO ASK BOARDS AND MANAGEMENT COMPANIES BEFORE YOU BUY!)

 

6. Try to get a copy of minutes from the last meeting or sit in on an HOA meeting before you buy.

The meeting minutes can be very telling about the policies of the HOA. Some questions to ask are:

  • What are current and past conflicts?
  • What is the process for resolving any conflicts?
  • Has the HOA sued anyone? How was that resolved?

Be alert for potential drama. Power trips and petty politics can be an issue in some HOAs. Talk to some of the building’s current owners, if possible – preferably ones who are not on the HOA board and who have lived in the building for several years. Talk to the HOA president and get a sense for whether you want this person making decisions about what you can do with your property. If a private company manages the HOA, investigate it before you buy. Some HOAs are professionally managed, but it is common for associations to be managed by building residents who hold their positions as volunteers. Even if you like the current HOA board or management company, it can change after you move in and you may end up getting something totally different than what you expected.

 

7. Watch for under-management.

Not all HOAs are over-managed. The opposite problem may be an HOA where no one really cares and where no one is interested in maintaining the building, making repairs, hearing resident grievances or being on the board. Residents may simply take turns serving as HOA president or randomly appoint someone, so be prepared to serve in this role whether you want to or not if that is the case with your community’s HOA.

This would also be a good time to check into any restrictions preventing you from renting out your property or that make it difficult for you to do so. If your property is being under-managed you might not have an issue, but if you’ve got a hyperactive manager it could be a totally different story.

 

8. Find out what kind of catastrophe insurance the HOA has on the building.

This is particularly important if you’re considering a condo or townhouse purchase and you live in an area that is prone to floods, earthquakes, blizzards, fires, tornadoes, hurricanes or any other type of potential natural disaster – and that is virtually anywhere.

 

9. Consider the impact of HOA fees on your short- and long-term finances.

A condo with high HOA fees might end up costing you as much as the house you don’t think you can afford.

 

The Bottom Line

Homeowners’ associations can be your best friend when they prevent your neighbor from painting her house neon pink, but your worst enemy when they expect you to perform expensive maintenance on your home that you don’t think is necessary or impose rules that you find too restrictive. Before you purchase a property subject to HOA rules and fees, make sure you know exactly what you are getting into. Then, once you’ve found your dream community.

 

Planning for the Future

The only constant is change, and the board must plan for the HOA’s future. This involves determining long-range needs and establishing long-term goals, along with implementing a strategy to attain those goals. The board should set annual goals, as well as those for a longer time frame. Performance goals are also set by the board. SFPMA and our members can help with many of the maintenance requests for your properties.

 

 

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Lake Management and Hurricane Season by Allstate Lake Management

Lake Management and Hurricane Season by Allstate Lake Management

Lake Management and Hurricane Season

by Allstate Lake Management

Many South Florida homeowners are not aware of the critical role their community lakes play in managing stormwater and mitigating local area flooding.  With the start of this year’s hurricane season around the corner, now is the time to make sure that our lakes and waterways are ready to deal with whatever nature throws at us.  The problem of flooding is a real issue here because our homes are built on relatively flat, low-lying ground.  The thin layer of soil under our feet can become saturated quickly, and sits on a cap of coral rock that only allows for a slow flow of water down to the aquifers below.  This, combined with the possibility of large amounts of precipitation in short periods of time creates conditions for major flooding in our urban areas.  When developers create residential communities and commercial areas, they need to take into account how much water needs to be stored or moved in order to prevent the project from flooding during major rain events.  Through careful planning and design, they route stormwater away from our homes and into a system of lakes and canals.  The size and number of lakes in our communities are a result of those calculations.  Lakes are dug to create a storage area for water runoff from storms.  The fill dug from the lakes is then used to raise the elevation of the homes around them.  Using a system of drains and pipes the water is directed from the

developed areas down into the lakes.  Some community lakes use weirs or culverts to connect   them to the municipal canal system.  This allows them to move excess water off the property once they reach a certain level. The system works well but requires regular maintenance in      order to ensure that it works properly when needed.  Scheduled inspections of storm drains and weirs is important to keep the water moving off our streets and properties efficiently.  These structures accumulate silt and debris, and will occasionally need to be cleaned out.  The lakes

themselves also need to be regularly inspected and maintained

 

Even though they are primarily man-made storm water basins, they do evolve and become living ecosystems like naturally occurring waterbodies.  Aquatic vegetation begins to grow in all lakes eventually, and much like our lawns, require regular attention in order to avoid become overgrown.  Exotic species such as hydrilla, hygrophila, and rotala grow quickly and can spread throughout acres of lake in a matter of months or less.  Such infestations are not only unsightly, but all those weeds are filling up the lake and taking up space meant to hold stormwater runoff.  Floating weeds such as water lettuce and water hyacinth can rapidly cover a lake surface, clogging and even damaging weirs and other outflows.  Excessive growth of vegetation near culverts and drain pipes can slow the flow of stormwater both into and out of the lake, causing backups of the system.  The longer these plants are left to grow unmanaged, the harder the problem is to get under control and the longer it will take.  Large scale infestations need to be treated in stages with regulated wait times between treatments.  This is done in order to not deplete the dissolved oxygen in the whole lake.  The other problem with established infestations is that the plants have had time to mature and grow extensive roots systems.   These root systems allow the plants to re-grow quickly after initial treatments and quite frequently require multiple follow up treatments to bring under control.  Even once treated, the herbicides take time to work and the plants take time to decompose and settle to the bottom.  Unfortunately, tropical storm events do not wait until conditions are best suited to deal with the results.  The best way to make sure your community is protected is to be proactive and maintain your system regularly.  Regular scheduled maintenance ensures that aquatic vegetation is kept at levels that don’t compromise your stormwater system and can potentially avoid costly repairs to its components.  Hurricane season corresponds with the time of year when these plants grow and spread the fastest due to the long, sunny days.  We have learned that being prepared for hurricane season means taking precautions before the storm arrives.  That wisdom should also definitely apply to our first line of defense against flood damage in our communities.

 

Author:  Stephen Montgomery / Senior Biologist

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.

 

 

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Pandemic Impact Survey by Axela

Pandemic Impact Survey by Axela

Pandemic Impact Survey

by Axela

How are community association financials affected by the pandemic?

Have your community association finances been impacted by the ongoing pandemic? What are communities around the country doing to combat cash flow and delinquency issues that 2020 has brought?

Please take 4 minutes to fill in this survey to share your anonymous feedback on the pandemic impact on your financials. We will be compiling the results to share with all of our readers.

 


 

 

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Has your Condo or HOA Sustained Property Damage? | SFPMA

Has your Condo or HOA Sustained Property Damage? | SFPMA

Do you have Storm Damage in your Building?

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

With the know-how and experience to negotiate your claim our Entire Team works with One Goal:

“Get the maximum settlement for your damage claim!”

 

PROPERTY DAMAGE

  • Hurricane Storm Damage
  • Water Damage / Floods
  • Fire Damage
  • Mold Damage
  • Roof Damage and Leaks
  • Sinkholes & Earthquakes
  • Property Vandalism and Theft

 

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

 

.

A Claim usually includes inspections, detailed estimates, more inspections, client reviews, negotiating with insurance companies, consulting with insurance company and most importantly, getting you your money as fast as possible.

http://CondoHoaAdjusters.com

Storm Damage Claims for your Condo and HOA Properties!

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Condos & HOAs are facing a cash flow crisis. Foreclosure is NOT the answer by Alexa

Condos & HOAs are facing a cash flow crisis. Foreclosure is NOT the answer by Alexa

  • Posted: Aug 27, 2020
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Condos & HOAs are facing a cash flow crisis. Foreclosure is NOT the answer

by Alexa Mitch Drimmer

We need to work with families in a kinder more gentle way to keep them in their homes and at the same time protect our communities.

Contact Axela Technologies for a free collections analysis Learn more at https://www.axela-tech.com

Watch the Short Video!

Community associations are facing a crisis. High delinquencies and increased costs lead to unstable cash flows for condos and HOAs across America. Axela Technologies offers a solution that will help safeguard your community’s cash flow.

Learn more at https://www.axela-tech.com

 

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