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Condominium and Homeowners Associations in distress often cannot turn to their local bank for financing

Condominium and Homeowners Associations in distress often cannot turn to their local bank for financing

  • Posted: Sep 27, 2021
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Condominium and Homeowners Associations in distress often cannot turn to their local bank for financing

by  Gelt Financial, LLC we have been a provider of financing to Condominium and Homeowners Associations

 

Condominium and Homeowners Associations in distress often cannot turn to their local bank for financing, at Gelt Financial, LLC we have been a provider of financing to Condominium and Homeowners Associations in distress and in bankruptcy.

We have found that sometimes Condominium associations are in distress and need our short-term financing of up to 5 years interest only payments to allow them to get over the challenges they are facing.  They need time to Stabilize and then seek traditional bank financing.

We have worked with associations in chapter 11 Bankruptcy that needed financing to exit the Bankruptcy or settle lawsuits, from vendors, neighbors, or previous lenders. When an association needs cash, often it stops doing the routine preventative maintenance and capital improvements to the property, so things can spiral out of control very fast.

Gelt Financial, LLC has been working with business, investors, and condo associations in distress for years, providing the capital they need to solve their problems. We can provide financing and structure it to meet the cash flow needs of our borrowers quickly.

 

When your bank says No, we say Yes.

For more information contact info@Geltfinancial.com

Gelt Financial is here to help you with
your Commercial Mortgage needs.

 

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What are the advantages of using drones to document structural condition?

What are the advantages of using drones to document structural condition?

  • Posted: Sep 23, 2021
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What are the advantages of using drones to document structural condition?

1- Collect 1000s of high-res images from different vantage points
2- Create panoramas that show structures in full context of surroundings
3- Easily photograph areas that were previously difficult, expensive or inconvenient to reach
4- Tag images with date and GPS location
5- Provide evidence of structural condition OVER TIME
And the best part?
With SRI’s proprietary image management software, Catalogger, clients can easily store, search, access and share drone survey images like these from a recent South Florida project.
Catalogger’s simple, intuitive interface and cloud-based storage make it the perfect tool for structural condition analyses and collaboration.
Learn more about Catalogger and our work with drones @ https://www.sriconsultants.net/services/drone-survey
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The Mystery of the Missing Minutes: How Community Association Document Retention Protects Against Liability

The Mystery of the Missing Minutes: How Community Association Document Retention Protects Against Liability

  • Posted: Sep 23, 2021
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The Mystery of the Missing Minutes: How Community Association Document Retention Protects Against Liability

Who Voted for What and When…Where Did the Minutes go?

Here is a cautionary tale: Your board of directors voted for a big capital improvement project along with a special assessment. Like a well-governed association, they memorialized the motion and the vote from the meeting in the minutes. With that project, the association needs to make a special assessment because the reserves were not funded well. A few owners are not happy about the special assessment and retained a lawyer to strike it down.

Years go by before it makes it to court and in discovery, the plaintiffs request the minutes as proof that the board did their fiduciary duty when making the decision. Except, after all this time has passed, the association has changed management companies and the minutes are nowhere to be found. Nobody remembers anything: some old board members have moved on; the management companies did not keep your minutes or did not turn them over to the new management company.

Now all the association can do is pay the attorneys (a big waste of money) and start all over again. This is how, without a community association document retention policy in place, a simple capital improvement project which may have cost $50,000.00 is overshadowed by a massive and unnecessary loss of resources for your community association.

HOA Document Retention

Safeguarding Your Documents Protects You from Liability

Boards may change over time, but the safekeeping of all records does not. When a new board is elected, it is the obligation of the outgoing board to return or hand over all community records — most important of all the minutes of all their meetings. If a new management company is hired, they must obtain all the documentation and records from the previous management company. Unfortunately, it’s often a futile task, and you might as well be looking for your documents in the Bermuda Triangle.

Most state laws require that community associations keep records for five to seven years (depending on the state). If there are no statutes regarding document retention, common sense tells you that they should be retained and accessible.

A simple test to know if your community is protected

If you are a board member or an owner, ask your management company to produce records of minutes from a meeting five years ago. Ask them for the budgets for the last three years. This should not be a difficult request. This is a simple test that can be conducted by diligent board members to ensure your record-keeping obligations are being met. If they cannot find the last three years’ budgets, you have a very big problem.

Community associations are required to retain a large number of records, many more than any individual director is accustomed to in their personal lives. So naturally, the task falls on the management company. Failure can have various negative effects, particularly, as in the example above, when the association gets sued.

Improper Documentation can Lead to an Inability to Collect on Delinquencies

Here’s another example: What if a board has decided to put Mister Delinquent into collections for non-payment of assessments for the past three years (don’t be surprised, some boards will wait before moving on an issue like this). Your collection agency asks for the budgets and minutes of budget meetings to verify the debt and they are nowhere to be found. I think you can guess how this pans out. Without the budget minutes and other documents required to put a budget into play, from a legal point of view, there is no debt to collect.

Condo Association Document Retention

In the midst of chaos, You need a source of truth

Let’s face the facts and understand that community associations are volatile environments and quite dynamic. Boards of Directors change, emotions run high, management companies are dismissed frequently, as are attorneys, vendors, and whoever else gets an opportunity to work for an association. Sometimes by accident (and sometimes by design) disgruntled board members, dismissed employees (managers), or untrained office staff may feel that the round file (garbage can) is for everything that is over a year old.

The minutes are the history of all board actions and decisions and losing them is like losing your medical records…It’s unhealthy for your community’s future. Yet many associations continue to work the same way they did in 1961 and everything is committed to paper. In essence, your so-called paper trail has fallen into a deep dark abyss never to be found again.

These days you can have virtual meetings so why not digitize the minutes and keep them safe? It costs very little to set up a cloud drive for the community to store valuable documents. Association servers or cloud-based document retention services should be filled with documents and files to protect the community from liability. Time marches on and technology continues to advance: don’t let your association be left behind.

Community Association Document Retention

The solution? A Community Association Document Retention Policy

So now that a potential problem has been identified, what are the possible solutions?  First and foremost, as mentioned above, the board of directors must establish a record-keeping policy and protocol which involves voting on it and memorializing this in the minutes. Don’t lose those minutes and approve them at the next meeting. Said policy should identify all the records that an association must keep and for how long.

Figuring where to start when writing your community association document retention policy should be easy since most states, already require retention of certain documents. In addition to the documents required by the state, be sure to include any documents that support and protect the interests of the community association’s business. Because, make no mistake, helping to prevent future costly lawsuits and legal defense funds is certainly in the community’s best interest.

Community Association document retention isn’t just for minutes. Whether your state requires it or not, it behooves your board to hold on to certain items that may be needed in a future lawsuit. Those include:

  • governing documents
  • insurance policies
  • vendor contracts
  • accounting ledgers
  • audit reports
  • reserve/engineering studies
  • warranties
  • proof of meeting notices
  • all meeting minutes (public and private)
  • collection policies & payment plan agreements
  • proof of mailings
  • any other processes that can be documented or may be disputed in the future
Document Retention 4

Lock it Down… For the Future

Sloppy or lackadaisical record keeping can have disastrous effects on community associations. It is the responsibility of BOTH the boards of directors and the management companies to ensure that the community is protected from liability. The best way to do that is to lock down everything and store your important documents in the cloud.

If you have been planning to move your records to the cloud “someday” consider today that day. This is a project worth getting to work on right away because bad things can happen in the wink of an eye. Your first, and sometimes only defense against problems in the future, is documenting everything today.

If you want to learn more about community association governance please contact us for a free no obligation collections analysis and we will be glad to speak to you about all other matters that you may have questions about.

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STELLAR PUBLIC ADJUSTING SERVICES – Property Damages?

STELLAR PUBLIC ADJUSTING SERVICES – Property Damages?

  • Posted: Sep 21, 2021
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STELLAR PUBLIC ADJUSTING SERVICES

Property Damages Video!

 

 

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
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TO ARBITRATE OR MEDIATE? By Eric Glazer, Esq.

TO ARBITRATE OR MEDIATE? By Eric Glazer, Esq.

  • Posted: Sep 21, 2021
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TO ARBITRATE OR MEDIATE?

By Eric Glazer, Esq.

Prior to July 1st, 2021 if a condominium dispute arose, the parties were forced to first arbitrate the matter before the Department of Business and Professional Regulation.  The law has now changed and reads as follows:

(a) Before the institution of court litigation, a party to a dispute, other than an election or recall dispute, shall either petition the division for nonbinding arbitration or initiate presuit mediation.

As you can see, now the plaintiff has a choice to start the matter in arbitration or mediation.  So which one do you choose?

If you decide to go to arbitration, your case will be assigned to an arbitrator in Tallahassee.  The arbitrator will read the briefs, hold hearings and ultimately enter an order.  Someone will win and someone will lose.  The loser will pay the winner’s attorney’s fees.  The loser can then file in court for a trial de novo.  In effect, it’s an appeal of the arbitrator’s order and the case starts all over again.  The winner of the trial de novo gets their attorney’s fees and costs from the loser, including the arbitration fees.

So….the risk in going to arbitration is that if you lose, you may wind up not only paying your lawyer, but the other side’s lawyer too.

The alternative is to mediate the dispute.  I have been certified since 2007 as a Circuit Court mediator.  I truly enjoy mediating cases and helping the parties resolve their disputes.  At mediation, the parties appear with their attorneys.  The mediator explains that today is a good day to settle the case on mutually agreeable terms, rather than leave your fate up to a judge or jury.  If an agreement is reached, it is enforceable in a court of law.  The mediator allows the parties to make opening statements, then separates the parties and goes back and forth trying to achieve a settlement.

There is very little risk in going to mediation.  There is no “winner” or “loser” at mediation, so neither party has to worry about paying the other side’s attorney’s fees.  The parties split the cost of the mediator.

When I act as a mediator, I explain to the parties that neither side will get everything they want today, and that if at the end of the day both parties feel a little miserable, I probably achieved a fair result.

 

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Challenge Accepted: Becker & Coworks International Take on Return-To-Work

Challenge Accepted: Becker & Coworks International Take on Return-To-Work

  • Posted: Sep 21, 2021
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Challenge Accepted: Becker & Coworks International Take on Return-To-Work

The post-pandemic return to work is fraught with challenges – from ensuring the physical and mental well-being of employees and the safety of the actual workplace to attracting and retaining an empowered workforce who successfully maintained productivity without coming into the office for an entire year. Becker Shareholder and employment lawyer Jamie Dokovna invited Becker Managing Shareholder Gary C. Rosen and Coworks International Founder & President Shirley Arline to discuss the future of work and how business leaders can help protect both their people and profitability.

“We all need to recognize that we are embarking upon an experiment, and we have to be openminded about the prospect of adjustments in order to do what’s right for our people and our organization,” said Rosen. “It is critical that whatever any organization does [traditional, hybrid, or remote-only], it needs to be organic and natural to that organization.”

A recent survey¹ showed that 70% of all employees would like companies to normalize working from home and include it as part of a work-week that also featured a few traditional 9-5 in-the-office days. In the same survey, 20% of the responders said they’d be happy never coming back to the office.

“There are still quite a few apprehensions about how to manage [the return to work] in a way that allows employees to feel safe and comfortable,” said Arline. “There are genuine fears among employers and employees about potential exposure; the need for flexibility becomes overriding.”

While the EEOC has declared mandatory vaccination policies permissible (with exemptions being made for religious reasons or chronic health issues)², many companies are uncomfortable with that approach, opting instead to offer incentives – cash prizes for those who prove their vaccination, additional paid time off to get vaccinated – and to promote the value of vaccinations through education and anecdotal evidence provided by COVID-19 survivors or families of those who succumbed to the disease.

“We don’t want to lose good employees,” said Rosen. “We want to be responsive and flexible, but, as a business, we need to have a policy in place that people see implemented uniformly.” Arline continued, “Employers are trying to protect employees from contracting COVID and from other employees who do not want to be vaccinated.”

But safety of the workplace is not the only priority for employers.

“There is a lot of concern about the social and psychological adjustment of employees who have been out for quite a while,” said Arline. “We’ve had a significant increase in requests for EAPs to deal with the mental health impact of the pandemic.”

EAPs, employee assistance programs, are work-based intervention options designed to assist employees in resolving personal problems that may be adversely affecting the employee’s performance. EAPs traditionally assist workers with issues like alcohol or substance abuse; however, most now cover a broad range of issues such as child or elder care, relationship challenges, financial or legal problems, wellness matters and traumatic events like workplace violence. Programs are delivered at no cost to employees by stand-alone EAP vendors or providers who are part of comprehensive health insurance plans.³

“At the beginning of the pandemic, we had some employees who experienced acute stress, and I am very thankful that they reached out to our HR department,” said Rosen. “Sometimes small problems, if left unattended, can become larger issues and then migrate to crisis proportion. [Becker] does its best to provide an outlet for people to speak to a psychologist or mental health professional with no stigma attached.”

In addition to physical and mental health concerns, employers are also facing disruptions in recruiting and retention of employees.

“[Recruiting] has become a big challenge for employers,” said Arline. “Candidates are asking about the COVID protocols in place, setting very specific terms under which they will consider employment with an organization. I’ve gotten complaints from employers about the fact that they are losing control of the recruiting process and it’s very much in the hands of the candidates.”

The 2020 lockdown has also changed the rules of retention, since that year provided employees time to reflect on the direction of their career and review their professional goals. Many have made the decision to choose a completely different field – a risk that most would not have considered pre-pandemic – or leave the workforce altogether. Pundits have predicted a ‘turnover tsunami’ for the end of 2021, and all businesses are evaluating how to avoid losing quality employees by striking the right balance between a flexible workday and a guaranteed work product or service.⁴

“There isn’t a playbook for the pandemic,” said Dokovna. “Nobody is ahead of anyone else; we’re all figuring this out in real time.”

To watch the entire discussion, please click here.

 

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Becker Launches Interdisciplinary Sea Level Rise Advisory Team to Serve Florida’s Coastal Residents

Becker Launches Interdisciplinary Sea Level Rise Advisory Team to Serve Florida’s Coastal Residents

  • Posted: Sep 21, 2021
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Becker Launches Interdisciplinary Sea Level Rise Advisory Team to Serve Florida’s Coastal Residents

As one of the first law firms in Florida to address the legal issues stemming from sea level rise, Becker is excited to announce its interdisciplinary Sea Level Rise Advisory Team which includes experienced and knowledgeable lawyers ready to assist our clients in preparing for the future.

Our multifaceted team is comprised of specialists at the forefront of this emerging area of environmental law. This includes attorneys and government relations professionals across our Land Use & Zoning, Government Law & Lobbying, Community Association, Real Estate, and Construction Law & Litigation practices.

Led by Ellyn Bogdanoff, the team provides a comprehensive range of services to address flooding and other impacts of sea level rise. In 2021, for example, Becker’s Government Law & Lobbying Practice was instrumental in helping to secure the passage of Florida’s “Always Ready” legislation which will provide more than $100 million every year to help Florida communities combat the effects of rising sea levels.

Flooding due to sea level rise is and will continue to be a big challenge, not just for those living on South Florida’s waterfront, but across the state. Local governments are realizing the significant impact of flooding and are combatting sea level rise by creating resiliency task forces and taking action to revise land use planning and zoning requirements and make upgrades to their stormwater infrastructure and sewage systems.

But it’s not only local officials that must have a plan to respond to rising seas, landowners, developers, condominium and homeowner associations, and everyone in between, must also be prepared for the impacts posed by sea level rise, and develop strategies to prepare their properties accordingly.

Becker’s Sea Level Rise Advisory Team is prepared to help clients mitigate damages from sea level rise, evaluate options to prepare for the short and long-term, and develop financially feasible adaptation strategies. To learn more, please visit FloridaRisingSea.com.

 

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October Condo & HOA Expos 2021

October Condo & HOA Expos 2021

  • Posted: Sep 18, 2021
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https://sfpma.com/events/list/

Broward Condo & HOA Expo – Tuesday, October 5, 2021

Broward Signature Grand 6900 W State RD 84, Davie, Florida

Broward Condo & HOA Expo – Tuesday, October 5, 2021 Property Management Expo & Seminars Seminars: 9:00 am – 4:45 pm Exhibits: 10:30 am – 3:00 pm Sign up for the networking and educational event of the year! Get face-time with the industry experts, browse the latest products and services and learn how to save thousands on the management and maintenance of your condo or HOA. Registration is FREE for association managers, board members. Don’t delay!

 

 

Orlando Condo & HOA Expo – Wednesday, October 6, 2021

Orange County Convention Center – West Building 9800 International Drive, Orlando, FL

Orlando Condo & HOA Expo – Wednesday, October 6, 2021 Property Management Expo & Seminars Orange County Convention Center-West Bldg Wednesday, October 6, 2021 Seminars 9:00 am – 4:30 pm Exhibits 10:30 am-3:00 pm Sign up for the networking and educational event of the year! Get face-time with the industry experts, browse the latest products and services and learn how to save thousands on the management and maintenance of your condo or HOA. Registration is FREE for association managers, and board members. Don’t delay!

 

 

Naples Condo & HOA Expo – Friday, October 8, 2021

New Hope Event Center 7675 Davis 7675 Davis Blvd, Naples, Florida

Naples Condo & HOA Expo – Friday, October 8, 2021 Condo & HOA Expo & Seminars New Hope Event Center 7675 Davis Blvd. Naples, FL 34104 October 8th, 2021 Seminars 9:00 am – 4:30 pm Exhibits 10:30 am – 3:00 pm Sign up for the networking and educational event of the year! Get face-time with the industry experts, browse the latest products and services and learn how to save thousands of the management and maintenance of your condo or HOA. Registration is FREE for association managers, board members. Don’t delay!

 

 

Miami Beach Condo & HOA Expo – Tuesday, October 12, 2021

Miami Beach Convention Center 1901 Convention Center Drive, Miami FL 33131901 Convention Center Drive, Miami, FL

Miami Beach Condo & HOA Expo – Tuesday, October 12, 2021 Property Management Expo & Seminars Miami Beach Convention Center Tuesday, October 12, 2021 Seminars: 9:00 am – 4:30 pm Exhibits: 10:30 am – 3:00 pm Sign up for the networking and educational event of the year! Get face-time with the industry experts, browse the latest products and services and learn how to save thousands of the management and maintenance of your condo or HOA. Registration is FREE for association managers, board members. Don’t delay!

 

 

Palm Beach Condo & HOA Expo – Thursday, October 14, 2021

PALM BEACH COUNTY CONVENTION CENTER 650 Okeechobee Boulevard, West Palm Beach, FL

Palm Beach Condo & HOA Expo – Thursday, October 14, 2021 Join us Thursday, October 14, 2021! Seminars: 9:00 am – 4:45 pm Exhibits: 10:30 am – 3:00 pm For one day only, the Palm Beach Convention Center will be packed with the latest products and services as well as an array of industry experts. It’s an unparalleled opportunity to make valuable connections and speak directly with local and national experts about the topics that are relevant to you and your property. Get legal insights, financial advice, communication tips, proactive management solutions and much more from some of the region’s top professionals. This one-day event will also give you a sneak peek at the latest design trends gracing today’s most prestigious developments, plus innovations in building and remodeling and the newest energy efficiency options. Register Today

 

 

Tampa Condo & HOA Expo – Thursday, October 28, 2021

Tampa Convention Center 333 S. Franklin Street, Tampa, Florida

Tampa Condo & HOA Expo  – Thursday, October 28, 2021 Condo, HOA and Property Management Expo Tampa Convention Center Thursday, October 28th, 2021 Seminars: 9:00 am – 4:45 pm Exhibits: 10:30 am – 3:00 pm    Sign up for the networking and educational event of the year! Get face-time with industry experts, browse the latest products and services and learn how to save thousands on the management and maintenance of your condo or HOA. It’s the ONLY event to bring everything you need under one convenient roof for a single, information-packed day. Registration is FREE for community association managers, board members, board presidents, active HOA members and industry professionals. Don’t delay… register for this one-of-a-kind event today!  more >

 

 

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Checklist to help you with Insurance, Things Change in your Family life! | SFPMA

Checklist to help you with Insurance, Things Change in your Family life! | SFPMA

  • Posted: Sep 13, 2021
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Checklist to help you with Insurance, Things Change in your Family life!

Changes in your life or lifestyle mean you should update your auto, home and umbrella insurance coverage. You may find you can save money by dropping unneeded coverage (say, for a child who has left for college) or that you need extra insurance (say, for heirloom jewelry you’ve just inherited)

Renovations to your main home or a new building on your property (say, a gazebo) can mean you’re underinsured and need to increase the value of the structures coverage on your home policy. This is especially important if you’ve put in a lot of money into renovation, or expanded your square footage

You need a policy review if you’ve bought (or inherited) any jewelry, fine arts, furs or collectibles such as wines, instruments, coins, guns or cameras. These are items you may want to list separately, or it may be cheaper to include them under a “collectibles rider.” You also need revisions if your collectibles have appreciated in value.

It’s hard to believe, but people forget to take old cars off their policies when they trade in one car for another. If you have any motorized toys, such as all-terrain vehicles, boats, or jet skis, make sure that your underlying auto or home policies, as well as your umbrella, cover your use of these.

If your teenager starts driving or you let an au pair or nanny drive your car, you must add him or her to your policy. Before you buy a car specifically for this new driver’s use, check the impact on your premiums. Some carriers will let you assign a young driver to a clunker, while others assume a young driver is using most valuable car in your garage, making it cheaper not to add another car.

 

Your Kids Are Leaving Home

If your kids go to college out of town, call your auto insurer–they’ll still be on your policy, but the policy’s cost should go down. If they move out permanently, make sure to take them off your auto policy.

If you transfer ownership of your house, artwork, a car or any other asset into the name of a trust, limited liability company or family limited partnership, you need to add the entity as an additional insured on your policy. If you’ve transferred the home you live in to a trust for estate planning purposes, you want both your name and the name of the trust on the policy.

No matter what’s going on in your life, you should review your insurance coverage at least once a year. The easiest time to do this is when the renewal notices come. Your insurer (or agent) will notify you of changes or “amendments” to your policies, for better or worse. Read that new fine print, as it may mean you need to take action.

 

  • Check for loose or leaky gutters. Improper drainage can lead to water in the basement or crawl space. Make sure downspouts drain away from the foundation and are clear and free of debris.
  • Low areas in the yard or next to the foundation should be filled with compacted soil. Spring rains can cause yard flooding, which can lead to foundation flooding and damage. Also, when water pools in these low areas in summer, it creates a breeding ground for insects.
  • Use a screwdriver to probe the wood trim around windows, doors, railings and decks. Make repairs now before the spring rains do more damage to the exposed wood.
  • From the ground, examine roof shingles to see if any were lost or damaged during winter. If your home has an older roof covering, you may want to start a budget for replacement. The summer sun can really damage roof shingles. Shingles that are cracked, buckled or loose or are missing granules need to be replaced. Flashing around plumbing vents, skylights and chimneys need to be checked and repaired by a qualified roofer.
  • Examine the exterior of the chimney for signs of damage. Have the flue cleaned and inspected by a certified chimney sweep.
  • Inspect concrete slabs for signs of cracks or movement. All exterior slabs except pool decks should drain away from the home’s foundation. Fill cracks with a concrete crack filler or silicone caulk. When weather permits, power-wash and then seal the concrete.
  • Remove firewood stored near the home. Firewood should be stored at least 18 inches off the ground at least 2 feet from the structure.
  • Check outside hose faucets for freeze damage. Turn the water on and place your thumb or finger over the opening. If you can stop the flow of water, it is likely the pipe inside the home is damaged and will need to be replaced. While you’re at it, check the garden hose for dry rot.
  • Have a qualified heating and cooling contractor clean and service the outside unit of the air conditioning system. Clean coils operate more efficiently, and an annual service call will keep the system working at peak performance levels. Change interior filters on a regular basis.
  • Check your gas- and battery-powered lawn equipment to make sure it is ready for summer use. Clean equipment and sharp cutting blades will make yardwork easier.

 

 

DID YOU KNOW? Your homeowner’s insurance policy doesn’t cover flood damage. That requires a separate flood policy. Your homeowner’s policy could, however, cover other damage that is water related. 

 

You visit your doctor for a yearly checkup… why wouldn’t you do the same with your insurance agent? An annual review of your insurance policies is recommended because your financial situation can change year to year. A review doesn’t have to be time consuming like most people think. If you haven’t been getting a yearly review, it makes sense to start now. There is little to be gained by carrying the wrong types or amounts of insurance and so much, potentially, to be lost!

 

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Omnibus Bill (SB 630) Brings Changes for Florida Condos, Cooperatives and HOAs

Omnibus Bill (SB 630) Brings Changes for Florida Condos, Cooperatives and HOAs

  • Posted: Sep 09, 2021
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This year’s large community association omnibus bill will likely become law. This bill, which bears an effective date of July 1, 2021, contains changes which will impact condominiums, cooperatives and HOAs. At more than 100 pages, we will discuss only some of those changes in today’s CALL Alert. This bill, along with all the others CALL has been tracking throughout the 2021 Legislative Session, will be summarized in our year-end Legislative Guidebook.

 

Several of the Condominium changes include:

  • If a condominium association’s insurance policy does not provide rights for subrogation against the unit owners in the association, an insurance policy issued to an individual unit owner may not provide rights of subrogation against the condominium association. This will help prevent the rash of unfounded negligence claims against associations we’ve seen filed by at least one insurance company operating in Florida but may unfortunately result in increased premiums if subrogation against the culpable party in a loss is no longer possible.
  • Bids for work to be performed must be maintained for at least 1 year after receipt of the bid. Previously bids had to be maintained from the inception of the association.
  • A renter would have the right to inspect and copy only the declaration of condominium and the association’s bylaws and rules. Previously, a renter was only allowed to inspect and copy the Bylaws and rules.
  • An association may not adopt rules requiring a member to demonstrate any purpose or state any reason for a record inspection.
  • For condominiums with 150 or more units, an association, in lieu of posting copies of certain required documents to a website, may make those documents available through an application that can be downloaded on a mobile device.
  • Condominium associations may extinguish a discriminatory restriction in the governing documents (e.g., a provision which restricts ownership, occupancy or use of real property on the basis of race, color, national origin, religion, gender or disability) by board vote alone.
  • Confirms that board term limits are intended to be prospective with the service start date being on or after July 1, 2018.
  • Transfer fees will be increased to not exceed $150.00 (from the current $100.00 cap) and may be adjusted every 5 years in accordance with the Consumer Price Index (CPI).
    • Petitioners in recall disputes may now choose to either go directly to court with the dispute or to arbitration.
  • Contracts with a service provider that is owned or operated by a board member (or certain relatives with a financial relationship) are no longer prohibited.
  • The board may not prohibit the installation of a natural gas fuel station, and unit owners installing such stations must comply with all federal, state, and local laws.
  • A board may make available, install, or operate an electric vehicle charging station or a natural gas fuel station on the common elements or association property and establish the charges or the manner of payments by the unit owners, residents, or guests who use such stations. The station installation, repair, or maintenance will not constitute a material alteration or substantial addition to the common elements or association property.
  • Labor performed on or materials furnished for the installation of a natural gas fuel station or electric vehicle charging station may not be the basis for filing a lien against the association.
  • A challenge to a plan of termination may be handled via arbitration or mediation of the dispute.
  • This new law would allow the parties in a condominium dispute to now choose either presuit mediation (which has been used in HOA disputes) or arbitration through the Division of Condominiums, Timeshares and Mobile Homes (“Division”).
  • For election and recall disputes, mediation will not be an option, and such disputes must be arbitrated by the Division or filed in court.
  • The board can use emergency powers in response to damage or injury caused by or anticipated in connection with any occurrence, or threat thereof, whether natural, technological, or manmade, in war or in peace, which results or may result in substantial injury or harm to the population or substantial damage to or loss of property. This language was expanded to include emergencies caused by contagion.
  • The board may exercise its emergency powers to conduct board meetings, committee meetings, elections, and membership meetings, in whole or in part by telephone, real-time videoconferencing, or similar real-time electronic or video communication with notice given as is practicable.
  • Such notice may be given in any practicable manner, including publication, radio, US mail, the internet, electronic transmission, public service announcements, and conspicuous posting on the condominium property or association property or any other means the board deems reasonable under the circumstances.
  • Based upon advice of emergency management officials or public health officials, or upon the advice of licensed professionals retained by or otherwise available to the board, determine any portion of the condominium property or association property unavailable for entry or occupancy by unit owners, family members, tenants, guests, agents, or invitees to protect the health, safety or welfare of such persons.
  • The board may mitigate further damage, injury or contagion, including taking action to contract for the removal of debris and to prevent or mitigate the spread of fungus or contagion. This section may be used to justify heightened sanitation protocols.
  • The board can contract, on behalf of any unit owner or owners, for items or services which are necessary to prevent further injury, contagion, or damage, including, without limitation, sanitizing the condominium property or association property.
  • The emergency powers are limited to that time reasonably necessary to protect the health, safety, and welfare of the association and the unit owners and the unit owners’ family members, tenants, guests, agents, or invitees and shall be reasonably necessary to mitigate further damage, injury, or contagion and make emergency repairs.
  • Most importantly, when it comes to the changes to the emergency powers provisions in 718.1265, F.S., an association may NOT prohibit owners, tenants, guests, agents, or invitees of a unit owner from accessing the unit and common elements and limited common elements appurtenant thereto for if such access is needed to facilitate the sale, lease or other transfer of title to the unit. Presumably this language was included at the urging of the real estate industry because many associations restricted open houses and other in person showings of property during the height of the COVID-19 pandemic as well as in move-ins and move-outs in some cases.
  • Specifies that fines are due 5 days after notice of the approved fine is provided to the unit owner and, if applicable, to any tenant, licensee or invitee of the unit owner. Previously, fines were due 5 days after the date of the Fining Committee meeting at which the fine was approved.
  • Multicondominium associations may adopt consolidated or combined declaration of condominium but cannot merge the condominiums or change the legal descriptions of the condominium parcels, unless accomplished in accordance with law. This change applies to associations existing on July 1, 2021.
  • Expands the Division’s jurisdiction to now investigate complaints related to the maintenance of association records.

Several of the Cooperative changes include:

  • The definition of “Unit” is amended to state that “an interest in a unit is an interest in real property”.
  • The association may not require a member to demonstrate any purpose or state any reason in order to inspect the official records.
  • A board or committee member participating in a meeting via telephone, real-time video conferencing, or similar real-time electronic or video communication counts towards a quorum and such member may vote as if physically present.
  • The Petitioner in a recall dispute may choose to either go directly to court or to pursue arbitration with the Division.
  • Cooperative associations may extinguish a discriminatory restriction in their governing documents by Board vote alone. See the definition of a discriminatory restriction in the Condominium section above.
  • The same changes to the emergency powers language discussed above in Chapter 718 are also set forth in Chapter 719, F.S.

Several of the HOA changes include:

  • The definition of Governing Documents will no longer include Rules and Regulations.
  • In addition to the authorized means of providing notice of a board meeting, the association may also adopt a rule for posting the meeting notice and agenda on the association’s website or an application and must send an electronic notice including the hyperlink to the website or application to members whose e-mail addresses are included in the association’s official records.
  • The association must maintain for at least 1 year after the date of the election, vote, or meeting the ballots, sign-in sheets, voting proxies, and all other papers and electronic records relating to the parcel owners’ voting.
  • Information obtained in a gated community in connection with guests’ visits to parcel owners or community residents are records not accessible to members or parcel owners.
  • Reserves will only be considered mandatory if they are approved by a majority of the total voting interests or if the declaration, articles or bylaws obligate the developer to create reserves.
  • If the budget does not provide for reserve accounts under Section 720.303(6)(d), or the declaration, articles or bylaws do not obligate the developer to create reserves, and the association is responsible for the repair and maintenance of capital improvements that may result in a special assessment if reserves are not provided or are not fully funded, each financial report for the preceding year must contain certain disclosure language in conspicuous type.
  • The Petitioner in a recall dispute may choose to go directly to court or pursue arbitration with the Division.
  • Specifies that fines are due 5 days after notice of the approved fine is provided to the parcel owner and, if applicable, to any tenant, licensee or invitee of the parcel owner.
  • Removes the requirement that notices required by Section 720.306, Florida Statutes, be sent to the address on property appraiser’s website-notices only have to be sent to the mailing addresses found in the official records of the association.
  • Transports over the grandfathering of rental rights which has been in the Condominium Act for many years to the HOA Act. Any governing documents or amendments that prohibit or regulate rental agreements will apply only to owners who acquire title to the parcel after the effective date of the governing document or amendment, or to a parcel owner who consents, individually or through a representative, to the governing document or amendment. Existing owners who vote “no” or don’t vote on the rental restriction will not be governed by same. This restriction, however, does NOT apply to amendments or governing documents which seek to prohibit or regulate rentals for terms of less than six (6) months or to limit parcel rentals to no more than three (3) times per year. It will be important for HOAs with more than 15 parcels (this grandfathering of rental rights does not apply to associations with 15 or fewer parcels) who wish to impose other rental restrictions to do so before July 1 if they wish those restrictions to apply to all members.
  • For purposes of determining the applicability of a rental amendment or rental restriction, a change in ownership does not occur when a parcel owner conveys the parcel to an affiliated entity, when beneficial ownership of the parcel does not change, or when an heir becomes the parcel owner.
  • The Petitioner in an election or recall dispute now has the option to file for arbitration or file in court. These disputes are not eligible for presuit mediation.
  • Clarifies that turnover of control of an HOA will be triggered three months after 90 percent of the parcels in all phase of the community that will ultimately be operated by the homeowners’ association have been conveyed to members other than the developer.
  • HOA boards may extinguish a discriminatory restriction in their governing documents by board vote alone. See the definition of a discriminatory restriction in the Condominium section above.
  • The same changes to the emergency powers language discussed above in Chapters 718 and 719 are also being added to Chapter 720, F.S.

The foregoing are just some of the changes this bill creates for your association operations. Florida’s Legislative Session is scheduled to end on April 30th. Stay tuned for additional CALL Alerts and as promised, our comprehensive Legislative Guidebook.

 

DONNA DIMAGGIO BERGER

Contact: dberger@beckerlawyers.com

Donna DiMaggio Berger is a member of the College of Community Association Lawyers (CCAL), a prestigious national organization that acknowledges community association attorneys who have distinguished themselves through contributions to the evolution or practice of community association law and who have committed themselves to high standards of professional and ethical conduct in the practice of community association law. Ms. Berger is also one of only 129 attorneys statewide who is a Board Certified Specialist in Condominium and Planned Development Law.

 

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