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This year I am hearing the following complaint more than ever before: I live out of the state, or out of the country and I never received a ballot to vote in the election.
A little over a year ago I was involved in a case where many owners who lived in Finland did not get their ballots timely. Instead of having their vote not count, someone who lived in the condominium e-mailed them the ballot. These owners then took that ballot, placed it in a ballot envelope, placed that ballot envelope in another envelope and signed the exterior, and mailed it back to the association usually by overnight mail. Some owners didn’t bother to use the interior ballot envelope.
The association didn’t want to count these votes. The association also didn’t want to count the votes of owners who had their ballot envelopes dropped off by a neighbor, claiming that this was voting by proxy.
Read the attached opinion to find out how the arbitrator ruled. It makes for interesting reading. The bottom line…….if you’re out of town…..have the ballot e-mailed to you.
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Eric Glazer graduated from the University of Miami School of Law in 1992 after receiving a B.A. from NYU. He has practiced community association law for more than 2 |
decades and is the owner of Glazer and Sachs, P.A. a seven attorney law firm with offices in Fort Lauderdale and Orlando and satellite offices in Naples, Fort Myers and Tampa.
Since 2009, Eric has been the host of Condo Craze and HOAs, a weekly one hour radio show that airs at noon each Sunday on 850 WFTL.
He is the first attorney in the State of Florida that designed a course that certifies condominium residents as eligible to serve on a condominium Board of Directors and has now certified more than 10,000 Floridians all across the state. He is certified as a Circuit Court Mediator by The Florida Supreme Court and has mediated dozens of disputes between associations and unit owners. Eric also devotes significant time to advancing legislation in the best interest of Florida community association members.
Tags: Condo and HOA Laws, Elections, Management News
Tags: Management News
by Becker / | 09.15.2020
Not surprisingly, the chatter about whether or not political signs should be permitted in private residential communities has increased as we draw closer to the elections in November.
Let’s first discuss whether or not an owner in a Florida HOA has the “right” to install signs. The short answer is “no” with one exception. FL homeowners’ associations can prohibit all types of signs other than one security sign located ten or fewer feet from the entrance to the home. All other signs including “For Sale” signs, signs installed by vendors doing work at a home, seasonal and congratulatory greetings and political signage may be prohibited IF the board determines that doing so is in the best interests of the community. Naturally, if the members disagree with their board’s decisions they may decide not to re-elect that board in the future.
Some owner signs enhance a community’s charm including seasonal greetings, and in the time of Covid, the congratulatory yard signs letting neighbors know of a child’s accomplishments when a traditional party could not take place. However, other signs cause concern. Many boards dislike the posting of “For Sale” signs as an abundance of those signs may send the wrong signal to both residents and potential purchasers.
And, it goes without saying that political signs these days are capable of igniting deep fractions inside residential communities. One school of thought is that some people’s sensitivities should not dictate others’ ability to promote their political candidate of choice.
The other school of thought associated with political signs is that they do not belong inside a private residential community where they can do more harm than good. The advocates for keeping politics out of communities believe that one’s political ideology is more productively expressed through monetary donations, volunteering for a campaign and/or waging war on social media sites to one’s heart’s content.
Some owners maintain that their constitutional rights are being trampled if their association denies them the right to install a political sign or political flag. In fact, you need a state actor to be the entity violating one’s First Amendment rights in order to mount a sound constitutional argument. In Florida, condos and HOAs have not been found to be state actors so prohibiting political signs and political flags is possible either through a recorded covenant or a board rule if the board has rule-making authority under the governing documents. In the case of Quail Creek Prop. Owners Association, Inc. v. Hunter, 538 So. 2d 1288, 1289 (Fla. 2nd DCA 1989), the Second District Court of Appeal found that an association’s sign restriction was not unconstitutional as “neither the recording of the protective covenant in the public records, nor the possible enforcement of the covenant in the courts of the state, constitutes sufficient “state action” to render the parties’ purely private contracts relating to the ownership of real property unconstitutional.”
Some boards choose to regulate the number and size of political signs and political flags as well as how long they can remain in place. However, when it comes to wording on those signs and what may or may not be considered offensive that requires a more in-depth analysis which some boards understandably wish to avoid. After much debate, many communities simply decide that political signs are best left outside their communities.
The place you call home should be a respite from the world and respites often don’t involve contentious political signage next door.
Tags: Condo and HOA Laws, Management News
by BY ROBERT KAYE, ESQ., B.C.S
The Florida Fourth District Court of Appeal recently provided a ruling regarding the ability of a homeowner’s association to successfully complete a foreclosure for unpaid assessments when there was an error in the amount indicated as being owed on the claim of lien. In the case of Pash v. Mahogany Way Homeowners Association, Inc., Case No. 4D19-3367, January 27, 2021, the Appellate Court was faced with the challenge of a lower court ruling in favor of the homeowner’s association in which the homeowner, Mr. Pash, had claimed that the amount indicated on the claim of lien was overstated from what was owed. The record also reflected that the homeowner’s association admitted that it made a mistake in its calculation of the assessments on the lien but corrected the amount when it filed the foreclosure case. It was not disputed that some assessments were delinquent when the foreclosure case began.
In a split decision, a majority of the Court focused on the requirements of Section 720.3085(1)(a) of Florida Statutes, as well as the provisions of the Declaration of Covenants for the Community. The Statute provides the following:
To be valid, a claim of lien must state the description of the parcel, the name of the record owner, the name and address of the association, the assessment amount due, and the due date. The claim of lien secures all unpaid assessments that are due and that may accrue subsequent to the recording of the claim of lien and before entry of a certificate of title, as well as interest, late charges, and reasonable costs and attorney fees incurred by the association incident to the collection process. The person making payment is entitled to a satisfaction of the lien upon payment in full.
While the case was reversed for other reasons, the majority of the Court stated that “Nothing in section 720.3085(1)(a) suggests that the claim [of lien] must be free of error for it to serve as an otherwise valid claim of lien.” The Court also concluded that the statute, as written, does not provide that an error in the amount stated in the claim of lien invalidates an otherwise valid claim by an association. Rather, the Court indicated that the association is merely asserting “a claim” in the lien and the association remains obligated to prove its claim in order to prevail in its case and homeowners have the ability to contest the claim made.
The Florida Condominium Act contains substantially the same provision as set forth above in Section 718,116(5)(b) F.S. Consequently, it is anticipated that a lower court would likely apply the conclusions of this case to a condominium association foreclosure case.
It remains to be seen whether this holding is going to be viewed as an anomaly or will be followed by the remaining District Courts in Florida. Notwithstanding this easing of the perception of association requirements on this point, it remains the recommendation that all collection efforts by associations be fully documented to a “zero” balance on the specific homeowner account to minimize any possible adverse conclusion in an assessment foreclosure case. Legal counsel familiar with community association law should be involved to assist in the formal collection efforts against any homeowner.
Tags: Condo and HOA, Condo and HOA Laws, Management News, SFPMA Members
| Becker Lawyers
Client Advisory
Yesterday, House Bill 969 titled Consumer Data Privacy was introduced as a potential new law to protect the personal data of Florida consumers. Governor Ron DeSantis’ stated goal for the bill is to “safeguard the privacy and security of consumer data.”
The bill is intended to give consumers more control over the personal information that businesses routinely collect and may even sell to third parties. Many of the basic rights under the new bill mirror that of the California Consumer Privacy Act passed in 2018 (CCPA). Like the CCPA, HB 969 attempts to secure new privacy rights for Florida consumers. If you are a Florida resident, you may ask businesses to disclose what personal information they have about you and what they do with that information as well as the right to request a business delete and to not sell your personal information. Consumers will also have the right to be notified, before or at the point businesses collect personal information, about the types of personal information being collected and what the business may do with that information. Generally, businesses will not be able to discriminate against you for exercising your rights under HB 969.
As stated above, the consumer will be provided the right to request that businesses disclose what personal information they have collected, used, shared, or sold about the consumer, and why they collected, used, shared, or sold that information. Businesses must provide a consumer with this information for the twelve-month period preceding the request and must provide the information free of charge.
If passed, HB 969 would require businesses to inform consumers about certain information being collected at the time of collection. Businesses would be required to inform consumers about:(i) categories of personal information collected; (ii) specific pieces of personal information collected; (iii) sources from which the business collected personal information; (iv) purposes for which the business uses the personal information; (v) categories of third parties with whom the business shares the personal information; and (vi) categories of information that the business sells or discloses to third parties.
If the business sells consumers’ personal information, then the information at collection must include a “Do Not Sell or Share My Personal Information” link. The information of consumer rights must also contain a link to the business’s privacy policy, where consumers can get a description of the business’s privacy practices and of their privacy rights.
A Florida consumer may also request that businesses stop selling their personal information (“opt-out”). With some exceptions, businesses cannot sell your personal information after they receive an opt-out request unless later provide authorization allowing them to do so again. Businesses must respect the consumer’s decision to opt-out for at least twelve months before requesting that the consumer authorize the sale of the consumer’s personal information. Businesses can offer consumers financial incentives in exchange for collecting, keeping, or selling personal information. However, businesses cannot use financial incentive practices that are unjust, unreasonable, coercive, or usurious in nature.
After discovering what personal information is collected, used, shared or sold a consumer may request that a business delete the personal information collected and to tell their service providers to do the same. However, there are many exceptions that allow businesses to keep personal information. Businesses must respond to a request to delete within 45 calendar days and can only extend that deadline once by another 30 days (75 days total) if they notify the consumer.
Consumers may be worried about retaliation for exercising rights under HB 969. However, the bill prohibits businesses from denying goods or services, charging a different price, or providing a different level or quality of goods or services just because a consumer exercised rights under the proposed law. Businesses also cannot make the consumer waive these rights, and any such contract provision is unenforceable.
What happens if a business violates HB 969? What rights are given to the consumer? Much like the CCPA, HB 969 only provides a private cause of action against a business if there is a data breach, and even then, only under limited circumstances. A consumer can sue a business if their nonencrypted and nonredacted personal information was stolen in a data breach as a result of the business’s failure to maintain reasonable security procedures and practices to protect it. If this happens, the consumer can sue for the amount of monetary damages actually suffered from the breach or up to $750 per incident. An important aspect of the proposed law is that it does not provide for prevailing party legal fees.
For all other violations of HB 969, only the Department of Legal Affairs (“Department”) can file an action. If the Department has reason to believe that any business is in violation and that proceedings would be in the public interest, the Department may bring an action against such business and may seek a civil penalty of not more than $2,500 for each unintentional violation or $7,500 for each intentional violation. Such fines may be tripled if the violation involves a consumer who is sixteen years of age or younger. A business may be found to be in violation if it fails to cure any alleged violation within 30 days after being notified in writing by the Department of the alleged noncompliance.
The bill also contains other provisions outlining who is protected under the bill, what is considered personal information, data retention and biometric information rules and procedures for businesses to follow. We will publish additional articles exploring these provisions and expand on the information addressed in this article. In addition, we will explore the importance of Florida enacting a well-balanced privacy law which does not act as an anchor for businesses and appropriately protects the rights of Florida consumers.
Tags: Condo and HOA, Condo and HOA Laws, Management News
KWPM Executive Director Tim O’Keefe host this live, monthly webinar offering a dynamic landscape that addresses best practices for HOAs and Condo Associations, provides updates and features guests who offer insight into the industry.
This week’s panel of experts:
*US Congressman Ted Deutch, FL-22
*Attorney Jeffrey Rembaum, Partner with Kaye, Bender, & Rembaum
*Attorney Michael Bender, Partner with Kaye, Bender, & Rembaum
Time shows
by Kaye Bender Rembaum
On September 26, 2016, Rembaum’s Association Round Up published an extremely important article regarding a community association’s potential liability when allegations by one member accuse another member of a discriminatory practice. (Click HERE to view the 2016 article). On September 13, 2016, HUD made clear that a housing provider is responsible for discriminatory practices that may take place. In its Rules and Regulations set out in Chapter 24, Part 100 of the Code of Federal Regulations, effective which further interprets the Federal Fair Housing Act, HUD explained that it believes that, “we are long past the time when racial harassment is a tolerable price for integrated housing; a housing provider is responsible for maintaining its properties free from all discrimination prohibited by the Act.” Those regulations became effective on October 14, 2016.
In this author’s opinion, HUD went way too far by mandating that housing providers act as the investigator, police, judge and jury in cases of alleged discrimination. After all, there are countless Fair Housing offices in each state where complaints can be filed and are actively investigated, often times with only a bare inference. Community association board members are volunteers with no required special training other than to be “certified” within 90 days of taking office, which certification can be met by signing a one-page form acknowledging duties or taking a two-hour class. Neither the individual board members nor the community as a whole should have to bear liability for its board of directors not taking action in a neighbor to neighbor dispute. Afterall, the court room is the proper setting where such matters should be resolved.
In the January 25, 2021, edition of the Palm Beach Post reporter Mike Diamond Special to Palm Beach Post USA TODAY NETWORK, authored an article titled “Judge Won’t Dismiss HOA Religious Bias Suit.” In the article the judge was quoted as follows: ““the La-Grassos [the plaintiff’s] have plausibly alleged a claim against the association for its failure to respond to or seek to control Ms. Tannenholz’s allegedly discriminatory conduct.” Amongst other things, the allegation is that Tannenholz’s told La-Grassos, “you do not belong in a community that is 80% Jewish and that La-Grassos should “move the F… out and go to a white supremist community.”
But for HUD’s position that a housing provider can have liability for discriminatory practices of the residents it is unlikely the association would be a defendant in this lawsuit. By forcing housing providers, such as Florida’s countless condominium, homeowners’ and cooperative associations, to interject themselves into what should be private disputes amongst neighbors, HUD is providing the deepest of pockets to the plaintiff’s attorneys. At the end of the day, it is just another reason to sue the innocent community association to create liability where there should not be any in the first place.
Practical Tip no. 1: In light of this lurking danger, be sure to check in with your association’s insurance agent to be sure the association has proper liability coverage for accusations of discrimination.
Practical Tip no. 2: Also, given that there can even be personal liability in such actions, board members would be wise to speak to their own personal insurance agents too… Afterall you never know when that umbrella policy may come in handy. Remember this, too: if one board member has knowledge about an event, then such knowledge can be imputed to all board members as if they are all similarly aware. In other words, when one board member knows, then the association itself is on notice.
Practical Tip no. 3: Consider formally adopting a “no discrimination” type of rule. It could be as simple as “discrimination of any kind will not be tolerated”.
Practical Tip no. 4: If your association is made aware of an alleged discriminatory practice, then a written record of such allegation and the association’s efforts to remedy the situation should be made.
Be sure to discuss each and every alleged discriminatory practice brought to the attention of the board and/or its manager with the association’s attorney to obtain the proper guidance needed.
Tags: Board of Directors, Condo and HOA, Condo and HOA Laws, Management News
by Eric Glazer / Glazer & Sachs / Condo Craze & HOA’s
In about 25 years a crisis is coming to the condo and co-op world that will be shocking to say the least. Here is the problem. Many of you think that by purchasing your condo or co-op, you can live there forever, as long as the mortgage, taxes and assessments are paid. You may be wrong. Very wrong.
Florida condo and co-op law basically say: Leaseholds.—
(1) A condominium or co-op may be created on lands held under lease or may include recreational facilities or other common elements or commonly used facilities on a leasehold if, on the date the first unit is conveyed by the developer to a bona fide purchaser, the lease has an unexpired term of at least 50 years.
That’s right your condo could be built on land that you don’t own. Land that you are leasing and someone else owns and who is simply leasing the underlying land to the condo association for 99 years. After the 99 years are over, the lease may require that all property built on the land (meaning all of the condo units) revert back to and becomes owned by the owner of the land. In other words, after 99 years, you lose your home.
Many of these 99 year leases began in the 1960s. So, in about 40 years, lots of buildings will be faced with this fiasco if they don’t do something about it before then. As the date gets closer to the expiration of the 99 year lease term, the value of the unit keeps going down. How can you sell a unit to someone if in 5 years it reverts back to the underlying land owner? That unit is valueless.
It’s amazing how many people have no idea that this is going to happen. How many people thought that once they paid off their mortgage, they were safe and secure. They were wrong. One day, the underlying land owner will be able to make you purchase the unit all over again if you want to stay. Or, simply kick everyone out and build something new or sell to a new developer.
The law should never have allowed condos or co-ops to be built on leased land. But, this is Florida – the land where developers call the shots.
If you live in a community with such a land lease, you want to see if you can buy it out and obtain a deed to the land. That will avoid the potential disaster that awaits. The Florida Legislature better start thinking about this coming crisis and not wait for it to creep up on everyone.
Tags: Condo and HOA, Condo and HOA Laws, Management News
On September 26, 2016, Rembaum’s Association Round Up published an extremely important article regarding a community association’s potential liability when allegations by one member accuse another member of a discriminatory practice. (Click HERE to view the 2016 article). On September 13, 2016, HUD made clear that a housing provider is responsible for discriminatory practices that may take place. In its Rules and Regulations set out in Chapter 24, Part 100 of the Code of Federal Regulations, effective which further interprets the Federal Fair Housing Act, HUD explained that it believes that, “we are long past the time when racial harassment is a tolerable price for integrated housing; a housing provider is responsible for maintaining its properties free from all discrimination prohibited by the Act.” Those regulations became effective on October 14, 2016.
In this author’s opinion, HUD went way too far by mandating that housing providers act as the investigator, police, judge and jury in cases of alleged discrimination. After all, there are countless Fair Housing offices in each state where complaints can be filed and are actively investigated, often times with only a bare inference. Community association board members are volunteers with no required special training other than to be “certified” within 90 days of taking office, which certification can be met by signing a one-page form acknowledging duties or taking a two-hour class. Neither the individual board members nor the community as a whole should have to bear liability for its board of directors not taking action in a neighbor to neighbor dispute. Afterall, the court room is the proper setting where such matters should be resolved.
In the January 25, 2021, edition of the Palm Beach Post reporter Mike Diamond Special to Palm Beach Post USA TODAY NETWORK, authored an article titled “Judge Won’t Dismiss HOA Religious Bias Suit.” In the article the judge was quoted as follows: ““the La-Grassos [the plaintiff’s] have plausibly alleged a claim against the association for its failure to respond to or seek to control Ms. Tannenholz’s allegedly discriminatory conduct.” Amongst other things, the allegation is that Tannenholz’s told La-Grassos, “you do not belong in a community that is 80% Jewish and that La-Grassos should “move the F… out and go to a white supremist community.”
But for HUD’s position that a housing provider can have liability for discriminatory practices of the residents it is unlikely the association would be a defendant in this lawsuit. By forcing housing providers, such as Florida’s countless condominium, homeowners’ and cooperative associations, to interject themselves into what should be private disputes amongst neighbors, HUD is providing the deepest of pockets to the plaintiff’s attorneys. At the end of the day, it is just another reason to sue the innocent community association to create liability where there should not be any in the first place.
Practical Tip no. 1: In light of this lurking danger, be sure to check in with your association’s insurance agent to be sure the association has proper liability coverage for accusations of discrimination.
Practical Tip no. 2: Also, given that there can even be personal liability in such actions, board members would be wise to speak to their own personal insurance agents too… Afterall you never know when that umbrella policy may come in handy. Remember this, too: if one board member has knowledge about an event, then such knowledge can be imputed to all board members as if they are all similarly aware. In other words, when one board member knows, then the association itself is on notice.
Practical Tip no. 3: Consider formally adopting a “no discrimination” type of rule. It could be as simple as “discrimination of any kind will not be tolerated”.
Practical Tip no. 4: If your association is made aware of an alleged discriminatory practice, then a written record of such allegation and the association’s efforts to remedy the situation should be made.
Be sure to discuss each and every alleged discriminatory practice brought to the attention of the board and/or its manager with the association’s attorney to obtain the proper guidance needed.
Board Certified Specialist in Condominium and Planned Development Law and a community association lawyer with the law firm Kaye Bender Rembaum, in its Palm Beach Gardens office.
His law practice consists of representing condominium, homeowners, and cooperative associations, developers and unit owners throughout Florida.
He can be reached by email at JRembaum@KBRLegal.com or by calling 561-241-4462.
Tags: Board of Directors, Condo and HOA, Condo and HOA Laws, Management News
SFPMA works throughout the State of Florida, we are a multi-member organization for the Condo, HOA and Property Management industry. Through knowledge based Articles, Events and our Members Directory, Clients find the right information to make an informed decisions for their Florida properties.