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Rembaum’s Association Roundup: Social Distancing Extended & Clarification of Short Term Rentals Order

Rembaum’s Association Roundup: Social Distancing Extended & Clarification of Short Term Rentals Order

  • Posted: Mar 30, 2020
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Rembaum’s Association Roundup: Social Distancing Extended & Clarification of Short Term Rentals Order

by Jeffrey A. Rembaum  brought to you by the Law Firm of  Kaye Bender Rembaum

 

Social Distancing Extended Through End of April & Short Term Rental Clarification 

 

Social Distancing Extended 

As you may have already heard this evening,  the Federal Government’s recommendation on social distancing, originally scheduled to end tomorrow, was extended through the end of April.

 

Clarification Regarding Vacation Rental Order 

On March 27, Governor DeSantis signed an Order  prohibiting vacation rentals less than 30 days (not 30 days or less). The Order expires 14 days later unless otherwise extended.  View the order HERE

 

We strongly encourage Boards to discuss these issues with your association’s  legal counsel to ensure legal and appropriate measures are being undertaken to deal with this rapidly ever evolving and fluid situation.

 

Confirmation of Emergency Powers

Please see the Order from the Secretary of the D.B.P.R. confirming the application of the Emergency Powers for all Boards, as well as the tolling of the deadline for financial reporting requirements for Condominium, Cooperative and Timeshare Associations, during the current State of Emergency.

 

We added a very useful COVID-19 resource section to our website. You can visit it by clicking HERE: 

 

The Kaye Bender Rembaum Team Remains  Available To You And To

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.

 

Legal Sponsor Members of SFPMA

Kaye Bender Rembaum

Kaye Bender Rembaum is dedicated to providing clients with an unparalleled level of personalized and professional service regardless of their size and takes into account their individual needs and financial concerns, with offices in Pompano Beach, Palm Beach Gardens & Tampa.

Jeffrey A. Rembaum

Phone: 561-241-4462
E-Mail: JRembaum@KBRLegal.com

 

 

 

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Leigh Katzman’s Law Firm,  providing Statewide Educational to Board Members and Community Association Managers (CAM’s) across the state of Florida

Leigh Katzman’s Law Firm,  providing Statewide Educational to Board Members and Community Association Managers (CAM’s) across the state of Florida

  • Posted: Feb 21, 2020
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Leigh Katzman’s Law Firm,  providing Statewide Educational to Board Members and Community Association Managers (CAM’s) across the state of Florida

Most of you reading this already know the names Bill and Susan Raphan and the mark they made on the Florida Condominium Ombudsman’s Office during their 7-year tenure.

For those of you who don’t know about this dynamic couple, here is their story. When Florida’s first Condominium Ombudsman, Virgil Rizzo, was appointed back in 2004, there was no money to staff the local South Florida Office. Bill and Susan were his first volunteers. They had been having problems in their own condominium and wanted to help others in similar situations. They worked for seven (7) months as volunteers, often returning calls from over a hundred people a day asking for help with their association-related issues, before the money was found in the State budget to finally pay them.

During their seven years with the Condominium Ombudsman’s Office they spoke with thousands of association members, directors, association managers, attorneys and legislators about the common and not-so-common issues that crop up when people live in close quarters and decisions are made by an elected body.

While some of the problems they confronted were not within their authority to address, others were successfully resolved as a result of their intervention. A patient set of ears, knowledge regarding the Statutes, Administrative Code and practices of the DBPR along with common sense and a dash of humor often helped put both Board Members and Owners with complaints on the right path. Was every problem solved? Absolutely not. Were many problems that could have resulted in time consuming and costly litigation successfully defused? Absolutely yes.

Bill and Susan had run a successful catering business for many years and, as a result, applied many of those same business principles to organizing the Ombudsman’s Office in an efficient manner especially given the shoestring budget under which they were forced to operate. They began an extensive education program at Broward and Palm Beach College as well as in Community Centers and Condominiums throughout the State. They facilitated the appointment of election monitors for approximately 90 condominium elections per year and educated almost 6,000 people in just their last year at the Condominium Ombudsman’s Office!

In 2011 they made the leap of faith and decided to join Leigh Katzman’s Law Firm as its Statewide Educational Facilitators. Today, the Raphans have been widely recognized for their role in providing Board Members and Community Association Managers (CAM’s) across the state of Florida with the highest-quality educational seminars for certification and continuing education credits. Bill and Susan were also featured in a front page article in the Wall Street Journal and have appeared on many TV and radio programs.

We are thrilled to have Bill and Susan as part of our team at Katzman Chandler and would urge you to experience one of their enjoyable and interactive educational classes for yourself.

For those of you wishing to contact Bill and Susan Raphan, you can reach them on their TOLL FREE HOTLINE @ 855-827-5542 or by email at WSRaphan@KatzmanChandler.com.

 

MEMBERS OF SFPMA: FIND COURSES FOR BOARD MEMBERS, MANAGEMENT COMPANIES ON OUR MONTHLY CALENDAR

NEW EVENTS ARE ADDED MARK YOUR CALENDARS FOR MARCH

 

 

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Central Florida Water Initiative Water Conservation Projects

Central Florida Water Initiative Water Conservation Projects

  • Posted: Feb 17, 2020
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CFWI

 

APPLY NOW FOR COST-SHARE FUNDING:

Central Florida Water Initiative Water Conservation Projects

Applications are now being accepted for a cost-share funding program to support the implementation of water conservation projects within the Central Florida Water Initiative (CFWI). This is part of the State of Florida’s efforts to identify and implement cost-effective strategies to protect the state’s water resources while meeting Florida’s water needs. Partnering with local governments and other large water users (such as agricultural, commercial, industrial, homeowner associations, and large landscape irrigation) to reduce water demands through implementation of water conservation projects is an important and effective way to help accomplish this goal.

In 2019, Governor DeSantis and the Florida Legislature approved statewide funding to develop water resource and water supply projects. Applications are now being accepted on behalf of the Florida Department of Environmental Protection for funding consideration for water conservation projects within the CFWI Planning Area (which includes all of Orange, Osceola, Seminole, and Polk counties and southern Lake County). The CFWI is a joint planning effort where the South Florida, St. Johns River, and Southwest Florida water management districts are working collaboratively with other agencies and stakeholders to implement effective water supply and water resource planning.

Eligible projects for consideration should be ready to implement water conservation technology programs that provide the most immediate and cost-effective benefits. Projects may be eligible for up to 50 percent cost-share reimbursement. The application process opens February 17, 2020 and closes March 27, 2020 at 5 p.m. To apply, click here.

For the latest information and details, visit sfwmd.gov/coopfunding. For assistance with the application process, applicants may contact any of the following District staff:

SFPMA.COM is Pleased to help with the Water Initiative Conservation Projects in our State. ( https://sfpma.com )

 

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HOW TO REMOVE TROUBLESOME TREES

HOW TO REMOVE TROUBLESOME TREES

  • Posted: Feb 17, 2020
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HOW TO REMOVE TROUBLESOME TREES

by Jeffrey Rembaum, Esq. KBRLegal

 

A great many streets in Florida’s residential communities are lined with oak trees. While they can look so appealing as a canopy, many of these trees can raise sidewalks and driveways. Their massive roots can grow into plumbing lines, cause various trip hazards and kill the grass, too.

Until recently, it was very problematic to remove these trees for a variety reasons. Moreover, it was also expensive  to deal with all of the governmental red tape caused, in many instances, by over zealous city officials, such as the city forester, who requires strict compliance with the community’s original landscaping plans, etc.  Well, the Florida legislature listened to stories of local government unreasonableness and did something about it to the great satisfaction of association members everywhere.

But, there is still a problem because many local governments refuse to accept that   House Bill 1159 was passed into law in 2019. This new law prohibits a local government from requiring a notice, application, approval, permit, fee or mitigation for the pruning, trimming, or removal of a tree on residential property when an arborist or landscape architect documents that the tree presents a danger to persons or property. As an important FYI, mangroves are exempt and all existing requirements for mangrove trimming, etc., remain steadfastly in place.

Apparently, the problem of local government personnel ignoring this new law is so pervasive that on January 7, 2020, the Speaker of the Florida House of Representatives, Jose Oliva, sent a memo to all Local Government Officials alerting them that they need to follow this new law and that the House of Representatives will be “diligent in executing its oversight responsibilities in order to protect the rights of property owners and to prevent illegal governmental actions that interfere with these rights. WOW!!!

If your community has a problem with tree removal caused by local government officials perhaps showing them a copy of the memo might help. Also, be sure to alert your association’s attorney to the problem so that they can intercede on the association’s behalf.

 

This new law is codified in s. 163.045, Florida Statutes and provides as follows: 

s. 163.045 Tree pruning, trimming, or removal on residential property.—

(1) A local government may not require a notice, application, approval, permit, fee, or mitigation for the pruning, trimming, or removal of a tree on residential property if the property owner obtains documentation from an arborist certified by the International Society of Arboriculture or a Florida licensed landscape architect that the tree presents a danger to persons or property.

(2) A local government may not require a property owner to replant a tree that was pruned, trimmed, or removed in accordance with this section.

(3) This section does not apply to the exercise of specifically delegated authority for mangrove protection pursuant to ss. 403.9321–403.9333.

 

View our Membership page on SFPMA and Legal Sponsors, with articles written each month in the Florida Rising Magazine – KBRLegal

 

 

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A PROPOSED AMENDMENT TO THE LAW THAT HAS DANGER WRITTEN ALL OVER IT

A PROPOSED AMENDMENT TO THE LAW THAT HAS DANGER WRITTEN ALL OVER IT

  • Posted: Feb 03, 2020
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Until now, you couldn’t sue an association for a violation of these rights inasmuch as the action by the association did not constitute “state action.”  This new statute changes all that if it passes and will open a Pandora’s box and flood of litigation between associations and their owners.

By Eric Glazer, Esq. 

Published February 3, 2020

Two weeks ago, I wrote to you about House Bill 623 that is making its way through The Florida Legislature.  Another change to the law currently included in the bill is the following language:

718.112 Bylaws.—

(1) GENERALLY.—

(c) Any provision of the declaration, the association bylaws, or reasonable rules or regulations of the association which diminish or infringe upon any right protected under the Fourteenth Amendment to the United States Constitution or Art. I of the State Constitution is void and unenforceable without further action of the association. The association may record a notice in the public records of the county in which the condominium is located evidencing its intention to not enforce such provision. The failure of the association to record a notice in the public record may not be the basis for liability or evidence of discrimination or a discriminatory intention.

To simplify, the 14th Amendment made The Bill of Rights (The first ten amendments to the Constitution) applicable to the states.  So this law basically says no provision of your governing documents can infringe upon the rights you have under the Bill of Rights.  All of you know several of these rights such as the right to free speech, freedom of assembly, and freedom of religion.

There is plenty of law out there that says when you move into an association, you may give up some of the rights you may ordinarily have in your private home. You do this by agreeing to be bound by the governing documents.   For example, courts have upheld the rights of Florida associations to prevent the use of the common elements for religious purposes, allowed associations to impose reasonable restrictions on speech through time limitations at meetings, impose restrictions on placement of political signs on the property or even placement of religious symbols in excess of certain sizes on your windows and doors.

The adoption of this proposed amendment by The Florida Legislature may throw all of these restrictions into doubt, including another one I haven’t mentioned yet.  The Second Amendment is the right to bear arms.  Inasmuch as Florida law allows associations to prohibit alcohol use on the common elements and prohibit religious ceremonies on the common elements I always opined that the association had the right to ban weapons on the common elements via a rule. If this proposed amendment passes, no way would an association be allowed to ban guns from the common areas.

I have serious concerns that if this amendment passes, associations will potentially be embroiled in case after case, where the association attempted to impose all of the reasonable restrictions mentioned above, and unit owners taking the position that the association is prohibited from doing so because it violates their constitutional rights.  Until now, you couldn’t sue an association for a violation of these rights inasmuch as the action by the association did not constitute “state action.”  This new statute changes all that if it passes and will open a Pandora’s box and flood of litigation between associations and their owners.

If you are a believer that associations are notorious for not providing their owners with rights guaranteed by the U.S. Constitution, this new proposed law may not bother you.  If on the other hand you believe that the association should still be able to impose reasonable restrictions in order for all of us to live in harmony with each other, this new law should bother you.  A LOT.

 

 

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Association Foreclosures Are Obsolete

Association Foreclosures Are Obsolete

  • Posted: Jan 10, 2020
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Association Foreclosures Are Obsolete

The Foreclosure Process and How HOAs Recover Money

In a condo or HOA the normal method to collect delinquent maintenance fees is to send an owner to the attorney. The attorney will then move the process through the courts. This means foreclosure for delinquent maintenance fees. The object is to foreclose and take “intervening title” on properties.

It’s “intervening title” because in most cases the unit still has a mortgage. Soon enough the lender is coming for their collateral. The association can hold title but they cannot sell the unit as it may have a debt attached to it. With luck the association can get this title without too much expense and rent out the unit. That is the only way the association can recover money if somebody does not bid the unit when it goes for sale.

The association foreclosure worked in the past but now it is becoming obsolete.

The rental revenue may cover losses for maintenance fees. It may also cover the rehabilitation of the unit, commissions and marketing of the unit to a renter. There are also the legal costs & fees that the association spent to get the title.

With luck the association can hold on to this unit long enough to recover their money. Its a hard way to recover delinquent maintenance fees. It is also an obsolete maneuver to foreclose to recover money.

This is how it has always been, especially during the real estate meltdown of the last decade. Now, the times they are a changing.

 

New Law Proposed in FL Removes Ability for Associations to Collect Rents

In Florida, an amendment to Florida Statute § 697.07 has been proposed. This new law will entitle banks to step in and take those rents. In essence this completely neutralizes the benefit of foreclosure for community associations.

Delinquent maintenance fees, legal costs, late fees, late interest will remain a loss. Only the lender will benefit when an association forecloses. In other words there will be no good reason for a community association to foreclose on a unit. They will not be able to monetize it should they prevail in court.

These are not isolated events but a trend. Banks may be slow learners but they will always make decisions that will benefit their bottom line in the end.

 

 

New Law Proposed in SC Removes Foreclosure as an Option for HOAs

In South Carolina a bill pre-filed this month would prohibit HOAs from foreclosing at all. This bill would strip this power from associations. “Real property used as a primary residence may not be sold if the action was instituted by a homeowners association attempting to collect unpaid dues, fee, or fines”, the proposed bill states.

These are not isolated events but a trend. Banks may be slow learners but they will always make decisions that will benefit their bottom line in the end.

Association foreclosures are likely to become less common nationwide. This is a good thing! Community associations and their attorneys have long abused this power. Small debts get inflated with legal fees, and the case gets moved to foreclosure. Ultimately this does little to benefit the association.

Eliminating foreclosures will limit community association’s power to collect delinquent assessments. Fortunately, there are other alternatives to recovering delinquent maintenance fees.

 

The Real Estate Meltdown is Over, But We’re Acting Like It’s Still Going On

People are fallible and don’t always manage their financial affairs well. Such people need a wake up call, NOT their home confiscated.

In 2009, during the height of the real estate meltdown, many properties did not have equity. Originally purchased by “Flippers and investors,” many were simply abandoned. Banks were stalling foreclosure and these properties were sitting there rotting. In those times it made good sense for the association to rush to the courthouse and foreclose on delinquent units.

Today most homes have equity and are appreciating in value. It’s unlikely the current owners would let the property be taken from them if they can avoid it. If equity outweighs the debt it would be foolish to lose a property. Most units delinquent in their maintenance payments will pay without legal intervention.

 

A Viable Alternative to Foreclosure Is Available for Smart Community Associations

Eliminating foreclosures will limit community association’s power to collect delinquent assessments. Fortunately, there are other alternatives to recovering delinquent maintenance fees.

Retaining a collection agency that specializes in community association debt is becoming an increasingly popular option.

Many collection agencies work on a contingency basis, while Lawyers get paid regardless of the outcome of the cases they take. This means collection agencies are much more motivated to seek a timely resolution.

 

Less Negative Impact on Community Members

Strategies employed by debt collectors have a much lower impact on your community. With a strategy of engagement and education, these agencies are looking to resolve issues and improve communications within the community. This is done with the use of proper notifications, outbound calls, credit bureau reporting, letters sent to mortgage holders, placing of liens, and other techniques.

Frankly, association foreclosure on delinquent owners is obsolete. Even without the change in the laws this method to collect on delinquencies needs to be reconsidered.

It’s time for management companies and boards of directors to think how the future collects and engage specialized collection companies to collect delinquent condo and HOA debts.

 

 

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As we get ready to start a new year, attention is turned to setting goals and resolutions.

As we get ready to start a new year, attention is turned to setting goals and resolutions.

As we get ready to start a new year, attention is turned to setting goals and resolutions

One goal you may want to consider for 2020 is getting your legal affairs in order. Preparing vital legal documents will help you to be ready for life emergencies and unforeseen events. Three of the top legal documents that should be a part of everyone’s legal life strategy are will, living will, and power of attorney forms.

A will is a legal document that lets you communicate your last wishes regarding distribution of your possessions, such as cars, home, money, and other items, to the people who you want to receive these assets upon your death.  It also lets you appoint a guardian for minor children.

A living will is a document that enables you to express in writing what type of medical treatment you want in the event you are no longer capable of making decisions yourself.  The living will lets you decide in advance if you want your life to being artificially prolonged by various medical procedures and equipment.

With a power of attorney form, you can appoint a trusted person to be your agent to handle financial, health, property or other matters when you cannot take care of things yourself.

USLegal makes it easy to access all of these vital legal documents and more with its LegalLife Legacy Bundle Special. See more details below.

 

LegalLife Legacy Bundle Special

Organize your legal life with one of U.S. Legal Form’s best-selling packages. It includes State Specific Last Will, Living Will and Power of Attorney PLUS (1) Credit Report Form, (2) Financial Statement, (3) Personal Life Planning Form, (4) Estate Planning Worksheet and (5) Monthly Cash Flow Statement. Normally $59, you can save now with this special offer price of $45.00. Act Fast. Offer expires January 3, 2020     

Click here to Download the Forms

Residential Lease Forms Package

If purchased individually, these forms would total $129.80. For just $59.95, get tremendous savings on forms you will need and use. Including state specific Lease, Lease Application, Reference Check Consent, Pre and Post Inventory Checklist, Lead Paint Disclosure, Welcome Letter, Rent Warning Letter, Rent Termination Notice, Closing Statement and more. Our most popular item. Click below to select the package for your state.

 
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Legal Eviction Information in every State.
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Community Associations Threatened With Website Litigation Under the ADA

Community Associations Threatened With Website Litigation Under the ADA

  • Posted: Dec 30, 2019
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Community Associations Threatened With Website Litigation Under the ADA

In the last few months, a growing number of community associations across Florida are being threatened with litigation because their websites are allegedly not friendly to visually impaired users.

  • So what does pizza have to do with a community association website?

Frankly, not a darn thing. It appears that the lawyers and firms threatening these specious lawsuits are conveniently conflating the obligations found under Title III of the ADA for places of public accommodation with the different set of obligations found in the Fair Housing Amendments Act (FHA) for housing providers.

Or, these lawyers are simply trying to avoid application of the ADA altogether since most private residential communities are not considered places of public accommodation. The ADA requires that every owner, lessor or operator of a “place of public accommodation” provides equal access to users who meet ADA standards for disability.

These lawsuits are attempting to apply the ADA standards for websites to housing providers impacted by the FHA.

These threatened website lawsuits are uniform in style (mostly forms sent in mass) and generally allege that a “tester” was unable to navigate an association’s website, resulting in a discriminatory impact on those who are visually impaired.

The suits allege that community association websites were not accessible to visually impaired persons thus violating the FHA. Community associations are considered housing providers under the FHA and, as such, must make reasonable accommodations for residents and guests with verifiable disabilities.

This is true in the realm of service and support animal requests and these new website lawsuits attempt to expand that obligation to include visually impaired visitors to an association website. It is curious that these testers did not reach out first and request that the allegedly deficient websites be modified for a visually impaired person to more easily navigate the site. Instead, demands are being summarily sent to community associations statewide who have websites in an attempt to reach a quick settlement.

The demand letters offer a conditional release for payment of “reasonable attorney fees” because the attorney sending the letter claims the firm is entitled to compensation for work completed to investigate, research and determine the community association’s noncompliance.

Of course one cottage industry begets another. In addition to a handful of law firms who believe they can generate some revenue with these tester lawsuits, we now also have a number of companies advising communities that they can make their websites compliant for fees ranging anywhere from $2,000-$5,000 and annual hosting around $300-$1,000 per year.

In actuality, the cost depends on the content and functionality of the website including the number of features that must be optimized for the visually impaired. There are also some solutions that are free depending on the website platform.

Many of the demands and threatened lawsuits appear to lack any merit and seem to be merely an attempt to obtain a quick settlement payment from community associations or their insurers.

Many of the communities who have been threatened have website features that are password-protected, are accessible only to owners, or don’t have the features that are the subject of the complaint, so the allegations appear to be specious.

While we can debate the merits of these tester lawsuits and even seek legislative clarification in the upcoming 2020 Legislative Session, in the interim, associations with websites need to speak with experienced counsel to confirm whether or not their association’s website must have the necessary software for disabled users.

This confirmation is particularly important if your community uses its website to list properties for sale or lease. As for the attorneys who have decided to send out these blanket demands without the benefit of further investigation, let’s hope they have a change of heart when associations push back.

Donna DiMaggio Berger is a board certified specialist in condominium and planned development law, a shareholder at Becker Law and the executive director of the Community Association Leadership Lobby.

 

 

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Statutory Limitation on Condominium Transfer Fees

Statutory Limitation on Condominium Transfer Fees

Statutory Limitation on Condominium Transfer Fees

A Reminder that the Limit is the Limit

Transfer fees are those fees an association may charge in connection with the sale or lease of a unit. There are significant differences between allowable transfer fees for homeowners’ associations as compared against condominium associations. When it comes to transfer fees for condominium associations, Florida law is patently clear – in no event may such a fee exceed $100 per applicant. In spite of this clear limitation, some condominium associations charge more than the statutory maximum, and doing so is not without significant consequence.

 

In fact, unit owners of a condominium association recently brought a successful class action lawsuit in Miami-Dade County against their condominium association that charged transfer fees beyond the statutory limit. That association now faces a significant financial impact from the suit. Not only must the association return the money charged over the statutory limit to each member of the class, the settlement stipulated that the association must pay $95,000.00 in attorney fees to the law firm representing the residents. The class period was from 2014 to 2019, and the association may end up paying over $200,000.00 to satisfy all the claims in the class. Yikes!

 

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Specifically, section 718.112(2)(i), Florida Statutes, provides that “no charge shall be made by a condominium association in connection with the sale, mortgage, lease, sublease, or other transfer of a unit unless i) the association is required to approve such transfer and ii) a fee for such approval is provided for in the declaration. In no event may such fee exceed $100 per applicant other than husband/wife or parent/dependent child, which are considered one applicant.” The law does allow the association to require a prospective lessee place a security deposit, not to exceed the equivalent of one month’s rent, into an escrow account maintained by the association.

 

It is important to note that the statute requires that the condominium’s declaration provide authority to the association to approve a transfer and to impose the transfer fee. If these powers are not granted in your declaration of condominium, the condominium association may not charge any transfer fee. If the declaration of condominium does provide for a transfer fee, then the association must abide by the statutory maximum.

 

It is not unheard of for more than one condominium association to attempt to circumvent the statutory limitation by changing the name of the fee. Some may call the charges “screening fees” or “move in fees,” but that does not change the fact that the fees are still legally considered transfer fees. Remember, the limit is the limit, regardless of whether the condominium association’s expenses in obtaining credit and criminal history reports exceeds the $100.00 limitation. Any condominium association charging more than the statutory maximum is violating the statute and opens itself up to liability. With the award of attorney fees, there is an incentive for attorneys to bring more cases challenging any transfer fees that violate the statute. Your condominium association could be liable for hundreds of thousands of dollars for charging improper transfer fees.

 

On the other hand, there is good news for homeowners’ associations, these statutory maximums only apply to condominium associations. However, homeowners’ associations are not without some statutory limitation. Section 689.28, Florida Statutes, declares that transfer fee covenants violate public policy by impairing marketability of real property. However, section 689.28(2)(c)7., Florida Statutes, does allow a homeowners’, condominium, cooperative, mobile home, or property owners’ association to charge a fee if the declaration allows such a charge. So, a homeowners’ association may only charge a transfer fee if the authority is granted to the association in the declaration. Just keep in mind, if your declaration specifies a set fee, your association is limited to the fee provided in the declaration.

 

Now is a good time for all board members to review their community’s governing documents and seek advice from the association’s lawyer as to whether any existing transfer fee complies with the statutory requirements. A simple check now can help your association avoid costly litigation in the future.

Article written by Jeff Rembaum of KBRLegal.com 
with permission for SFPMA to republish for our industry.

 

Kaye Bender Rembaum, Attorneys at Law

The law firm of Kaye Bender Rembaum, with its 19 lawyers and offices in Broward, Palm Beach and Hillsborough Counties, is a full service law firm devoted to the representation of more than 1,200 community and commercial associations, developers, and their members throughout the State of Florida. Under the direction of attorneys Robert L. Kaye, Michael S. Bender and Jeffrey A. Rembaum, the law firm of Kaye Bender Rembaum strives to provide its clients with an unparalleled level of personalized and professional service that takes into account their clients’ individual needs and financial concerns.

Thank You, SFPMA.COM

 

 

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HURRICANE SEASON IS HERE – IF YOU SUFFER A CASUALTY, YOU NEED TO KNOW ABOUT THIS NEW LAW

HURRICANE SEASON IS HERE – IF YOU SUFFER A CASUALTY, YOU NEED TO KNOW ABOUT THIS NEW LAW

HURRICANE SEASON IS HERE – IF YOU SUFFER A CASUALTY, YOU NEED TO KNOW ABOUT THIS NEW LAW

A good reason why society provides for prevailing party attorney fees and costs is to make a potential plaintiff think twice before filing a lawsuit. Imagine being able to sue your adversary in court without worry that if you lose you will NOT have to pay prevailing party attorney fees and costs to the other side. Such a situation could lead to an avalanche of lawsuits, and that is exactly what happened when Florida laws permitted contractors holding an “assignment of benefits” in their favor, who were unhappy with the award from the insurance company, to sue the insurance company with nothing to lose but to pay for their own attorney. Simply put, an assignment of benefits is an agreement transferring a homeowner’s insurance benefits to a contractor who may then file a claim against the homeowner’s insurance policy without the involvement of the homeowner. Notwithstanding the assignment of benefits, the homeowner is still responsible to pay the insurance premium and deductible. If the contractor then makes a claim against the insurance policy and is unhappy with the insurance proceeds received, the contractor can sue the insurance company with no threat of having to pay prevailing party attorney fees if the contractor lost its lawsuit against the insurance company. Without the fear of a prevailing party attorney fees award, these types of lawsuits became very prevalent. Insurers claim that this led to ever increasing insurance premiums. Not anymore!

 

Due to the passage of House Bill 7065 (“HB 7065”), officially taking effect on July 1, 2019, consumers may begin to notice a decrease in their insurance premiums as HB 7065 creates liability for the contractor for attorney fees and costs based upon the difference between the amount recovered and the amount offered during settlement negotiations as compared to the disputed amount. When HB 7065 takes effect, if the contractor holding the assignment of benefits sues and the difference between the judgment obtained by the contractor and the presuit settlement offer by the insurer is less than 25% of the disputed amount, the insurer is entitled to an award of reasonable attorney fees. On the other hand, if the difference between the judgment obtained by the contractor and the presuit settlement offer by the insurer is at least 50% of the disputed amount, the contractor is entitled to an award of reasonable attorney fees. Finally, if the difference between the judgment obtained by the contractor and the presuit settlement offer by the insurer at least 25%, but less than 50%, of the disputed amount, no party is entitled to an award of attorney fees.

 

Insurers claim that the old system resulted in abuse of property insurance claims, as contractors were inflating repair costs and essentially operating without significant financial risk during insurance litigation, thus allowing contractors to assert numerous claims in hopes that one would stick. As a result, insurance companies were left bearing the costs of these lengthy litigation’s, and thus, sought to recover their litigation expenses through the consumer – the homeowner – by increasing insurance premiums. While a homeowner is still able to enjoy the benefits of the one-way attorney fee privilege, this right is no longer transferable to the contractors through assignment of benefits. Clearly, this is a drastic change that will affect contractors around the entire State.

If you have any questions regarding the impact of this new law, please discuss them with your association’s attorney.

With hurricane season approaching, in the event you experience a casualty, before signing an assignment of benefits in favor of the contractor who shows up, often uninvited, not only do you need to read the fine print, but it is strongly suggested you have an attorney review the assignment of benefits contract first.

http://rembaumsassociationroundup.com/2019/06/19/hurricane-season-is-here-if-you-suffer-a-casualty-you-need-to-know-about-this-new-law/

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EMERGENCY POWERS  

HOMEOWNERS’ ASSOCIATIONS

 

720.316 Association emergency powers.—

(1) To the extent allowed by law, unless specifically prohibited by the declaration or other recorded governing documents, and consistent with s. 617.0830, the board of directors, in response to damage caused by an event for which a state of emergency is declared pursuant to s. 252.36 in the area encompassed by the association, may exercise the following powers:

(a) Conduct board or membership meetings after notice of the meetings and board decisions is provided in as practicable a manner as possible, including via publication, radio, United States mail, the Internet, public service announcements, conspicuous posting on the association property, or any other means the board deems appropriate under the circumstances.
(b) Cancel and reschedule an association meeting.
(c) Designate assistant officers who are not directors. If the executive officer is incapacitated or unavailable, the assistant officer has the same authority during the state of emergency as the executive officer he or she assists.
(d) Relocate the association’s principal office or designate an alternative principal office.
(e) Enter into agreements with counties and municipalities to assist counties and municipalities with debris removal.
(f) Implement a disaster plan before or immediately following the event for which a state of emergency is declared, which may include, but is not limited to, turning on or shutting off elevators; electricity; water, sewer, or security systems; or air conditioners for association buildings.
(g) Based upon the advice of emergency management officials or upon the advice of licensed professionals retained by the board, determine any portion of the association property unavailable for entry or occupancy by owners or their family members, tenants, guests, agents, or invitees to protect their health, safety, or welfare.
(h) Based upon the advice of emergency management officials or upon the advice of licensed professionals retained by the board, determine whether the association property can be safely inhabited or occupied. However, such determination is not conclusive as to any determination of habitability pursuant to the declaration.
(i) Mitigate further damage, including taking action to contract for the removal of debris and to prevent or mitigate the spread of fungus, including mold or mildew, by removing and disposing of wet drywall, insulation, carpet, cabinetry, or other fixtures on or within the association property.
(j) Notwithstanding a provision to the contrary, and regardless of whether such authority does not specifically appear in the declaration or other recorded governing documents, levy special assessments without a vote of the owners.
(k) Without owners’ approval, borrow money and pledge association assets as collateral to fund emergency repairs and carry out the duties of the association if operating funds are insufficient. This paragraph does not limit the general authority of the association to borrow money, subject to such restrictions contained in the declaration or other recorded governing documents.
(2) The authority granted under subsection (1) is limited to that time reasonably necessary to protect the health, safety, and welfare of the association and the parcel owners and their family members, tenants, guests, agents, or invitees, and to mitigate further damage and make emergency repairs.
History.—s. 19, ch. 2014-133.

EMERGENCY POWERS  

CONDOMINIUM ASSOCIATIONS

 

718.1265 Association emergency powers.—

(1) To the extent allowed by law and unless specifically prohibited by the declaration of condominium, the articles, or the bylaws of an association, and consistent with the provisions of s. 617.0830, the board of administration, in response to damage caused by an event for which a state of emergency is declared pursuant to s. 252.36 in the locale in which the condominium is located, may, but is not required to, exercise the following powers:

(a) Conduct board meetings and membership meetings with notice given as is practicable. Such notice may be given in any practicable manner, including publication, radio, United States mail, the Internet, public service announcements, and conspicuous posting on the condominium property or any other means the board deems reasonable under the circumstances. Notice of board decisions may be communicated as provided in this paragraph.
(b) Cancel and reschedule any association meeting.
(c) Name as assistant officers persons who are not directors, which assistant officers shall have the same authority as the executive officers to whom they are assistants during the state of emergency to accommodate the incapacity or unavailability of any officer of the association.
(d) Relocate the association’s principal office or designate alternative principal offices.
(e) Enter into agreements with local counties and municipalities to assist counties and municipalities with debris removal.
(f) Implement a disaster plan before or immediately following the event for which a state of emergency is declared which may include, but is not limited to, shutting down or off elevators; electricity; water, sewer, or security systems; or air conditioners.
(g) Based upon advice of emergency management officials or upon the advice of licensed professionals retained by the board, determine any portion of the condominium 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.
(h) Require the evacuation of the condominium property in the event of a mandatory evacuation order in the locale in which the condominium is located. Should any unit owner or other occupant of a condominium fail or refuse to evacuate the condominium property where the board has required evacuation, the association shall be immune from liability or injury to persons or property arising from such failure or refusal.
(i) Based upon advice of emergency management officials or upon the advice of licensed professionals retained by the board, determine whether the condominium property can be safely inhabited or occupied. However, such determination is not conclusive as to any determination of habitability pursuant to the declaration.
(j) Mitigate further damage, including taking action to contract for the removal of debris and to prevent or mitigate the spread of fungus, including, but not limited to, mold or mildew, by removing and disposing of wet drywall, insulation, carpet, cabinetry, or other fixtures on or within the condominium property, even if the unit owner is obligated by the declaration or law to insure or replace those fixtures and to remove personal property from a unit.
(k) Contract, on behalf of any unit owner or owners, for items or services for which the owners are otherwise individually responsible, but which are necessary to prevent further damage to the condominium property. In such event, the unit owner or owners on whose behalf the board has contracted are responsible for reimbursing the association for the actual costs of the items or services, and the association may use its lien authority provided by s. 718.116to enforce collection of the charges. Without limitation, such items or services may include the drying of units, the boarding of broken windows or doors, and the replacement of damaged air conditioners or air handlers to provide climate control in the units or other portions of the property.
(l) Regardless of any provision to the contrary and even if such authority does not specifically appear in the declaration of condominium, articles, or bylaws of the association, levy special assessments without a vote of the owners.
(m) Without unit owners’ approval, borrow money and pledge association assets as collateral to fund emergency repairs and carry out the duties of the association when operating funds are insufficient. This paragraph does not limit the general authority of the association to borrow money, subject to such restrictions as are contained in the declaration of condominium, articles, or bylaws of the association.
(2) The special powers authorized under subsection (1) shall be 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 and make emergency repairs.
History.—s. 15, ch. 2008-28.

 

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BECOMING A PAPERLESS ASSOCIATION

BECOMING A PAPERLESS ASSOCIATION

BECOMING A PAPERLESS ASSOCIATION

by Enrolled Agent Steven J. Weil, Ph.D., EA, LCAM,
Royale Management Services, Inc.
Is it time your association did away with paper records? Paper records take up lots of space, are difficult to share and expensive to store, not to mention the fact that they often attract bugs and other vermin.
Digital records, on the other hand, allow nearly unlimited storage using little or no physical space. Combine this with easy back-up, ease of access and decreased probability of loss of records or mis”ling, and digital records can be very appealing. They are also easier to search, harder to change and can be easily protected from loss due to “re, $ood or other disasters via “cloud” back up. Computer data storage in the “cloud” is inexpensive or sometimes free, and it is encrypted for security. Files can be organized into folders and quickly and easily accessed. Best of all, digital records can be shared and still remain intact so that records are never missing.
The State of Florida is on board. Condominiums with 150 or more units are now required by law to maintain a website and to post a myriad of association documents on it that are accessible only by unit owners.
There are legal considerations in any transition to paperless. It’s a good idea to be sure that the Statutes and the association’s governing documents do not mandate the use of paper documents delivered by mail. Association documents are generally silent on the topic of digitized
records. In fact, they typically don’t even cover paper records since many were written when no other form of record keeping existed. In the absence of any reference to how records are to be maintained other than that they must be maintained, electronic records meet all the requirements.
Florida community associations are permitted to send membership meeting notices and certain board meeting notices to the owners electronically only if the association obtains the written consent of the subject owner.
Further, association business conducted by Board members via email must be retained since they may need to be accessed in the event of a lawsuit.
Association business should be conducted on a dedicated email account, and document storage should be handled with care.
Here at Royale Management, we have been digitizing our associations’ records for many years; and while we still have a few clients that have insisted on keeping paper records, we are in the process of converting those associations to digital records as well.

 

Royale Management Services, a registered and licensed community association management corporation in Florida, works with association Boards of Directors throughout South Florida to oversee the daily activities required for proper management, helping to educate them on their responsibilities, duties, and obligations. Royale’s team members are highly trained in all aspects of community association management and customer service to ensure that proper procedures are followed that keep the association in compliance with all of the rules governing elections, budgeting, accounting, operation, collection and assessment. The #rm and its president are members of the Community Association Institute (CAI),State of Florida Property Management Association (SFPMA) and the Fort Lauderdale Chamber of Commerce.
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