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LEGISLATIVE CHANGES Are you up to date in your Condo or HOA?

LEGISLATIVE CHANGES Are you up to date in your Condo or HOA?

2017 LEGISLATIVE CHANGES

The 2017 Legislative Session was fairly active with respect to issues involving Community Associations. The following is a brief outline of some of the significant changes that became effective July 1, 2017.

Estoppel Certificates: Senate Bill 398: Applies to Condominium, Cooperative & Homeowners’ Associations.

Content and cost limits for estoppel certificates were issues attempted to be addressed several times in the past few years, but this year, SB 398 passed and substantially changed the content and procedure for responding to requests for information when a unit or property within the community is transferring, as well as setting up specific costs for the information. An “estoppel certificate” is defined to be a signed document establishing certain specific facts related to a particular transaction. In the past the estoppel certificate typically consisted of a basic statement of account, notifying the buyer/lender whether the account was current and identifying upcoming or ongoing financial obligations. The new law has the following affects: (a) reduces the time period for responding to a request for an estoppel certificate from 15 days to 10 business days, and if not delivered within 10 business days no fee can be charged for the estoppel; (b) the association’s website, if it exists, must contain the name and street address or e-mail address of the person to whom requests for estoppel certificates are to be sent; and, estoppel certificates must be delivered by hand, mail or e-mail on the date the estoppel is issued.

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APPELLATE COURT LIMITS ASSOCIATION ABILITY TO STOP OWNER POSTING OF NEGATIVE OPINIONS ON SOCIAL MEDIA

APPELLATE COURT LIMITS ASSOCIATION ABILITY TO STOP OWNER POSTING OF NEGATIVE OPINIONS ON SOCIAL MEDIA

APPELLATE COURT LIMITS ASSOCIATION ABILITY TO STOP OWNER POSTING OF NEGATIVE OPINIONS ON SOCIAL MEDIA

Many community associations throughout Florida have experienced an owner who opposes the board and is vocally negative toward the efforts of the association representatives. With the development of social media and the internet, many have also experienced these disgruntled owners posting their opinions on the internet through blogs, website and the like. Quite often these owners are not expressing accurate information regarding the association and boards look for help from their attorneys to stop what they consider to be abusive and harassing conduct. The Florida Fifth District Court of Appeal has recently issued a ruling that identifies some limits that court action can take in dealing with such disputes and leaving questions regarding other actions that can be taken unanswered.

 

Read more on Legal Issues: 

REMBAUM’S ASSOCIATION ROUNDUP

 http://www.kbrlegal.com/rembaums-association-roundup/

 

In Fox. V. Hampton at Metro West Condominium Association, Inc., Case No. 5D16-1822 (July 21, 2017), the Appellate Court was presented the situation in which the Condominium Association had initially brought a legal action against the unit owner to obtain an injunction to stop the owner from what they claimed to be conduct that was harassing, intimidating and otherwise threatening to other owners, and for his on-going publishing of negative claims about the Association and/or the Board on the internet. No trial was held as the parties entered into a settlement agreement that was ultimately incorporated into a final judgment under which Fox agreed to stop certain actions. Soon thereafter, however, the conduct began again and the Association filed a motion for contempt and enforcement of the agreement, claiming that Fox had willfully and intentionally violated the terms of the agreement.

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A few tips and reminders with everyone, as associations plan their annual meetings

A few tips and reminders with everyone, as associations plan their annual meetings

As associations plan their annual meetings, we thought we would share a few tips and reminders with everyone.

Annual Meetings

RePublished with permission from Our Members:  http://royalemanagement.com/home/

Royale Management Services, Inc.
2319 N. Andrews Avenue, Fort Lauderdale FL 33311
Phone: (954) 563-1269 | (800) 382-1040 | Fax: (954) 563-2153 | Email: CAM@rmsaccounting.com

 

The annual meeting is a member meeting, hence every member can participate. Participation is by properly made motions, seconds, taking part in discussion of motions and through voting.

The first order of business is to appoint the chairperson to run the meeting.  The chairperson can be anyone that the members agree should chair the meeting.  In many associations the board president chairs the meeting; however this requires approval of the members. Some associations ask their manager or attorney to chair the meeting which is acceptable as long as this is approved by the membership.  In large associations having a professional chair the meeting can help to keep it on track and see that the required business gets done properly.

A motion can be made by any member of the association as to who shall chair the meeting.  This motion must be seconded and then voted on by the members present. If the motion is approved by a majority of the member’s present, the chairperson is elected for the meeting.

The Second order of business is to determine whether a quorum of the members is present in person or by proxy.  The quorum requirement is spelled out in the association documents or by state statute.  Without a quorum no business can take place at the meeting.  However, ballots must still be collected.

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A Guide to Being Politically Smart for Board Members

A Guide to Being Politically Smart for Board Members

A Guide to Being Politically Smart for Board Members

RePublished with permission from Our Members:  http://royalemanagement.com/home/

Royale Management Services, Inc.
2319 N. Andrews Avenue, Fort Lauderdale FL 33311
Phone: (954) 563-1269 | (800) 382-1040 | Fax: (954) 563-2153 | Email: CAM@rmsaccounting.com

 

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Rembaum’s Association Roundup: Florida’s Newest Non-Native Invasion – Overnight Rentals

Rembaum’s Association Roundup: Florida’s Newest Non-Native Invasion – Overnight Rentals

  • Posted: May 30, 2017
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With little doubt, purchasing a home is one of the most significant investments you can make. In order to help protect that investment, many purchasers choose to buy homes within community associations that include homeowners’, cooperative and condominium associations. Behavior within community associations is governed by a declaration of condominium or declaration of restrictions, along with the bylaws, articles of incorporation and, importantly, and more often than not, the rules and regulations generated by the board of directors. Those of us living within community associations, for the most part, did not sign up to live in a community with transient overnight housing. Yet, if left to the vices of VRBO and AirBnB that is exactly what can happen in your community. Do you know what to look for? Do you know how to prevent this from occurring? What if it is occurring in your neighborhood? What can your community association do about it?

For a variety of reasons, none which are the subject of today’s column, local governments may have difficulty in promulgating local ordinances prohibiting overnight housing offered by VRBO and AirBnB. Therefore, it is left up to your community association’s board of directors to ensure proper measures are in place to prevent homes in your community from becoming the newest unnamed hotel/motel.

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E-Mails and E-Mail Addresses

E-Mails and E-Mail Addresses

Who is entitled to the e-mail addresses of your association’s members? Are e-mails sent between board members part of an association’s official records? What about e-mails sent by a board member to the manager?

 

Only the e-mail addresses of unit owners who have either consented to receive notice by e-mail or have consented in writing to the disclosure of their e-mail addresses are subject to review during an official record inspection. Section 718.111(12), Florida Statutes, provides, with regard to unit owner e-mail addresses, that “[t]he association shall also maintain the electronic mailing addresses… of unit owners consenting to receive notice by electronic transmission. The electronic mailing addresses… are not accessible to unit owners if consent to receive notice by electronic transmission is not provided in accordance with [this subsection].” This topic was discussed in Cohen v. Harbour House (Bal Harbour) Condominium Association, Inc., Arb. Case No. 2012-02-3139 (Summary Final Order / Lang / June 29, 2012).

 

In the Cohen case, a unit owner requested a list of all of the e-mail addresses of the members, however did not receive such a list. The unit owner alleged that she was improperly denied the e-mail addresses. However, it was discovered that the association did not have consent from any members to use their e-mail for the purposes of receiving official notices nor did the association have written consent to disclose the protected information from any member. Therefore, the arbitrator held that “[b]ecause, under the statute, no unit owner has submitted his or her email address for notice requirements or consented in writing to disclosure of his or her email address, the [a]ssociation did not improperly deny access by [the unit owner] to its list of email addresses.”

 

In today’s instant world, e-mail allows us to express our thoughts at anytime, anywhere. It is so convenient that it is unavoidable for board members to use it to discuss association business. As the official records of condominium, homeowner and cooperative associations are subject to inspection with limited exception, the question often asked is whether e-mails, including e-mails between board members and between one or more board members and the association’s manager, constitute part of the association’s official records that are subject to inspection by the members.

 

Several categories of records, while still constituting a part of the official records, are not subject to a member’s inspection request. For example, attorney-client privileged correspondence, medical records, information obtained by an association in connection with the approval of the lease, sale or other transfer of a unit and social security numbers, just to name a few, are not subject to a member’s inspection request but still constitute a part of the association’s official records.

 

On March 6 2002, the then Chief Assistant General Counsel of the Department of Business and Professional Regulation (“DBPR”) issued an opinion which provided that “[c]ondominium owners do have the right to inspect e-mail correspondences between the board of directors and the property manager as long as the correspondence is related to the operation of the association and does not fall within the… statutorily protected exceptions… [The DBPR does not have] regulations expressly requiring archiving e-mails, but… if the e-mail correspondence relates to the operation of the association property, it is required to be maintained by the association, whether on paper or electronically, under chapter 718, Florida Statutes.”

 

In Humphrey v. Carriage Park Condominium Association, Inc., Arb. Case No. 2008-04-0230 (Final Order / Campbell / March 30, 2009), an arbitrator of the Division of Florida Condominiums, Timeshares, and Mobile Homes held that “…e-mails… existing… on the personal computers of individual directors… are not official records of the association… Even if directors communicate among themselves by e-mail strings or chains, about the operation of the association, the status of the electronic communication on their personal computer would not change. Similarly, an e-mail to an individual director or to all directors as a group, addressed only to their personal computers, is not written communication to the association.” The arbitrator reasoned that “this must be so because there is no obligation to turn on [the] personal computer with any regularity, or to open and read emails before deleting them.”

 

Simply stated, if one was to rely on the guidance cited herein, e-mails solely between board members, even a board majority, are not part of the official records, e-mails between the board and the manager are part of the official records and unit owner e-mail addresses are only subject to inspection where a unit owner has either consented to receive notice by e-mail or has consented in writing to the disclosure of his/her e-mail address. That having been said, it is in my opinion that e-mail communications that involve a board majority are still subject to the board meeting notice requirements already required by Chapter 718, Florida Statutes, more commonly known as the “Condominium Act.”

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What is “Transition or Turnover?”

What is “Transition or Turnover?”

  • Posted: Oct 20, 2015
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“Transition” is the term of art describing the multi-step process to transfer responsibility for the Community Association to the homeowners/unit owners.

Transition is a process, not an event. At the end of that process, control of the Community Association is ultimately turned over to the owners.

 

For condominiums, the Declaration establishes a “Period of Declarant Control” based upon statute. For property owners’ associations, the Declaration may establish such a period, but currently, the declarant control period is is not addressed by statute.

During the Period of Declarant Control, the Developer appoints members of the board of directors for the Association; hires and has contact with the Association’s management company; and is the architectural control committee. At the expiration of the Period of Declarant Control, the Developer resigns its board of director positions. The owners hold a meeting to elect a new board of directors comprised of owners. The Developer turns over the Association’s books and records, and relinquishes control of the Association to the owners.

How do we begin the transition process?

As transition nears, it is time for the Declarant and the owners to initiate discussions on the transition process, and for owners to become familiar with the governing documents. There are several suggestions to help get the process started in earnest. For example, owners can propose adding one or more homeowners to the Board prior to transition; can set up a transition committee or advisory committee; can schedule a community meeting to explain that control of the Association will soon be turned over to the owners; and can seek volunteers for the transition committee. Some of the owners may have experience and expertise in the issues the community may face, and these owners can be very helpful druing transition.

 

Conclusion

Transition requires a thorough review and understanding of all aspects of your Association, including knowledge of financial issues; maintenance and engineering needs; the need to transfer common area (in non-condominium associations); insurance policies and needs; management responsibilities; covenant enforcement; and so on. Without knowledgeable guidance from an independent attorney experienced in common interest communities, owners can be overwhelmed with the immense responsibilities. Start early with your transition committee and contact a knowledgeable attorney to begin the process with your association.

 

Stop us if you’ve heard this one before: You announce an HOA election providing proper notice, yet only a handful of owners show up to vote. You end up short of your quorum requirements, and you have to start all over again with your fingers crossed that next time, your luck will be better, and your election will be successful. Or instead, you hold your election, get definitive results—you think—but then the election gets challenged.
We can help you do better!  many community association lawyers who’ve devoted their extensive—and impressive—careers to solving the challenges HOAs face every day. You’ll learn from members valuable, workable tactics you can implement immediately to make your election process smoother, more successful, and less contentious.
You’ll learn:

1- How to determine the specific steps your HOA must follow to conduct proper elections
2- Details on the most common mistakes boards make from election start to finish, and the most likely challenges to your election—and how to nip them in the bud
3- Information to help you identify your quorum requirements and creative tactics to ensure you get a quorum
4- Common rules governing who can run for your HOA board, along with insights on the pros and cons of changing your eligibility requirements—and tips on how to do it if you decide you should
5- Suggestions for general rules your board may want to consider passing to make holding elections easier
6- Tips to provide effective notice—and undercut any attempt to unwind your completed election based on claims of insufficient or improper notice
7- What you must know about proxies
8- Techniques you can deploy on the day of the election to avoid on-the-spot glitches
Plus much more!
It’s just an hour of your time, but you’ll walk away much wiser and better prepared for your HOA’s next election.

 

 

contact KBRLegal.com They are the experts in Association Law in South Florida. The Courses they give monthly can help you with understanding what is needed as a board member and your community.

 

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Associations Right to Evict

Associations Right to Evict

Associations Right to Evict

Associations Right to Evict . .

Associations can evict Tenants of property owners. In response to the unreasonable amount of property owners who are renting out their properties and collecting rents but have unpaid Association dues or assessments, the Florida legislature changed added a new weapon for Associations. For Condominium Associations, its Sec. 718.116, Florida Statutes, and for Homeowners Associations, its Sec. 720.3085, Florida Statutes, which allow for the evictions of tenants directly by Associations.

 

When Can Associations Evict Tenants?

A unit owner owes a duty to pay assessments and dues to the Association. If a unit owner has unpaid assessments, dues, or owes any other sums to the Association, the Association can perform an eviction of the tenant as if the Association was the landlord of the tenant.

What Are the Conditions to the Association Evicting a Tenant?

The Association must first send a Notice to the unit owner and tenant, informing them that future rents must be paid to the Association until all unpaid sums due the Association are paid.

 

Is There Specific Language for the Notice?

The Notice to be sent to the unit owner and tenant should state, in materially the following form, as follows:

 

For Condominium Associations:

Pursuant to section 718.116(11), Florida Statutes, the association demands that you pay your rent directly to the condominium association and continue doing so until the association notifies you otherwise.

Payment due the condominium association may be in the same form as you paid your landlord and must be sent by United States mail or hand delivery to …(full address)…, payable to …(name)…

Your obligation to pay your rent to the association begins immediately, unless you have already paid rent to your landlord for the current period before receiving this notice. In that case, you must provide the association written proof of your payment within 14 days after receiving this notice and your obligation to pay rent to the association would then begin with the next rental period.

Pursuant to section 718.116(11), Florida Statutes, your payment of rent to the association gives you complete immunity from any claim for the rent by your landlord for all amounts timely paid to the association.

 

For Homeowners Associations:

Pursuant to section 720.3085(8), Florida Statutes, we demand that you make your rent payments directly to the homeowners’ association and continue doing so until the association notifies you otherwise.

Payment due the homeowners’ association may be in the same form as you paid your landlord and must be sent by United States mail or hand delivery to (full address), payable to (name) .

Your obligation to pay your rent to the association begins immediately, unless you have already paid rent to your landlord for the current period before receiving this notice. In that case, you must provide the association written proof of your payment within 14 days after receiving this notice and your obligation to pay rent to the association would then begin with the next rental period.

Pursuant to section 720.3085(8), Florida Statutes, your payment of rent to the association gives you complete immunity from any claim for the rent by your landlord.

 

 

Can the Unit Owner Evict the Tenant if they Pay Rent to the Association?

Under Florida law, the unit owner complying with the Notice requiring the tenant to pay the rent to the Association is precluded from evicting the tenant for alleged failure to pay the rent to the Association.

THE LANDLORD’S LIEN

– LANDLORD IS SEEKING MONEY FOR UNPAID RENT

The following procedure can be used when the tenant(s) is evicted and Removed by the Sheriff, but leaves personal property in the rental property and the Landlord wants to sell the personal property to satisfy money owed for accrued rent. Note that the best procedure is to allow the Sheriff to perform the Removal even if the Landlord knows that the tenant(s) has vacated or abandoned the rental property. The lease agreement must be consulted to ensure there are no provisions therein which contradict the procedures allowed a Landlord as to asserting and enforcing a Landlord’s Lien. The process involves filing a new lawsuit against the tenant(s) which includes a count for foreclosure of a Landlord’s Lien. It is commenced after the eviction is concluded, including the Sheriff’s Removal. The starting point is for the Landlord to determine that there is personal property in the rental property after the tenant(s) is evicted. Also, the Landlord does not have a lien on property that is not the tenant(s). The Landlord’s Lien Foreclosure Action is a separate lawsuit, and general rules of court apply. However, the Landlord is allowed expedited proceedings, meaning the Court must move the case along quickly to conclusion, and only the 5 day summons, such as in evictions, is used. However, generally, the evicted tenant(s) must be personally served by a process server with the Landlord’s Lien Foreclosure Action and Summons, as compared to an eviction where the process server can post the notice on the door. Thus, an address to the evicted tenant(s), such as a new residence or work, has to be determined. The conclusion of the case allows the Sheriff to hold a public sale wherein the evicted tenant(s)’ personal property is sold. The Sheriff takes a small fee for the services it provides, and the remainder, up to the amount owed the Landlord for unpaid accrued rent and the Landlord’s attorney’s fees as well as costs, are given to the Landlord.

 

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