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What is in store for new condo laws? MANDATORY EDUCATION!

What is in store for new condo laws? MANDATORY EDUCATION!

  • Posted: Jul 07, 2024
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What is in store for new condo laws? MANDATORY EDUCATION!

In 2009, attorney Eric M. Glazer began a career in radio, starting and hosting the weekly Condo Craze and HOAs Radio Show on 850 WFTL. During the show, Eric answers questions from the callers week in and week out and the show has become incredibly popular throughout the state.

links:

Condo Craze Blog    condocrazeandhoas.com

watch the Shows, every Sunday at 11am     www.youtube.com/@CondoCrazeandHOAs

 

Property Management Legal Forms: forms are always needed for proper operation.

Property Management Legal Forms: forms are always needed for proper operation.

  • Posted: Jun 26, 2024
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Property Management Legal Forms

As you become a CAM Manager and start your business or have a Property Management Business that is established, forms are always needed for proper operation.

 

We offer Subscriptions – Where for a small fee you can download and get access to EVERY FORM YOU WILL NEED FROM THOUSANDS OF FORMS

 

View the Property Management Forms

 

PMLegalForms.com – Property Management, Eviction, Notices to Tenants and Owners, Letters, and many other Legal Documents can be found, View from over 85,000+ Legal Forms simply find and download!  

With our New Subscription Plans you can subscribe and get access to all of our Forms at any time!  We now have Forms for every State in the US. You can buy just the single form you need or Subscribe and get access to all of the Forms for one low price!

 

Just some of the essential forms to assist Property Managers with: leasing your premises, complying with legal requirements, and keeping relations with your tenants amicable. Forms include the 1. Landlord Tenant Closing Statement to Reconcile Security Deposit, 2. Residential Rental Lease Application, 3. Residential Rental Lease Agreement, 4. Commercial Building or Space Lease, 5. Security Deposit Agreement and other forms.

 

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Condominium Legislative Spotlight-House Bill 1021

Condominium Legislative Spotlight-House Bill 1021

By now, you likely have heard that House Bill 1021 was signed into law by the Governor on June 14, 2024. This new law impacts condominium associations governed under Chapter 718 of the Florida Statutes and for the most part has an effective date of July 1, 2024 (one Section is effective January 2026). There have been several local (and even national) news stories focusing on various aspects of these wide-ranging changes, which are intended to strengthen what is perceived as a lack of oversight of board members and other stakeholders in the operation of condominium associations. If you have not done so already, we encourage you to review our comprehensive update that includes all of the 2024 relevant legislative changes impacting both condominium and homeowners’ associations (which can be found HERE).

As these new changes can be overwhelming to digest all at once, for this article, we will focus on a few key new items that will directly impact your day-to-day operations:

(A) Official Records:

(i) Website: Currently, only an association managing a condominium of 150 or more units must post copies of its official records on its website. With the new changes, by January 1, 2026, any association managing a condominium of 25 or more units must have a website with its records posted and available for unit owner review.  Further, in response to a record request, an association may direct the requesting party to its website (rather than having to schedule a physical inspection appointment).

(ii) Organization and Checklist:  The Official Records must be maintained in an “organized” manner, and in the event any of the records are lost, destroyed, or otherwise unavailable, the association will have a “good faith obligation” to obtain and recover the records as soon as reasonably possible. Further, in response to a record inspection request, the association must provide a “checklist”, which identifies the records that were provided and the records that were not made available (the “checklist” is an Official Record itself and must be maintained for 7 years).

(iii) Emails:  The law clarifies that owner email addresses are NOT part of the official records that are open for inspection by the owners unless: (i) the subject owner has consented to receiving notices of association meetings via email; or (ii) the subject owner has expressly indicated that his or her email address can be shared with other owners.

*Key Takeaway:  The new laws include increased penalties (including potential criminal charges for board members or managers who knowingly, willfully, and repeatedly violate the record inspection requirements, or who intentionally defaces or destroys financial/accounting records), so it is extremely important for your board to review its official record practices and procedures to avoid potential sanctions.  As a reminder, the law allows a board to adopt reasonable rules regarding the frequency, time, location, notice, and manner of record inspections and copying. Accordingly, we recommend contacting your association counsel to discuss these new requirements, and to consider reviewing (or modifying) your current record inspection rules.

(B)  Board Meetings/Board Education:

(i)  Frequency and Content of Board Meeting Notice/Agenda: The board must now hold a meeting at least once each quarter during the calendar year. Further, at least four (4) times each year, the agenda for the board meeting must include the opportunity for owners to ask questions of the board, including the right to ask questions relating to the status of construction/repair projects and the revenues/expenditures of the association. Also, if the board meeting has an agenda item regarding the approval of a contract for goods or services, a copy of the contract must be included with the notice.

*Key Takeaway: While the law does not expressly require the board to provide a substantive answer to these owner questions, be sure that the notice of your board meetings (at least 4 times a year) contains an agenda item for “owner questions” or words of similar effect.

(ii)  Continuing Education for the Board:  Board Members are now required to satisfactorily complete at least four (4) hours of State-approved “new board member” education curriculum (check our website at kbrlegal.com for upcoming approved classes) that include instruction on a host of important topics, including milestone inspections, structural integrity reserve studies, elections, and financial literacy and transparency.  The educational certificate must be submitted within 1 year before or within 90 days after election or appointment to the Board, and is valid for 7-years (and does not need to be resubmitted as long as the directors serves without interruption during the 7-year period).  Any Board Member elected or appointed prior to July 1, 2024 will have unitl July 1, 2025 to comply with this 4-hour education requirement.

Additionally, within one year after submitting the 4-hour educational certificate (and annually thereafter), all Board Members must complete one (1) hour of continuing education by a State-approved provider that addresses legislative changes from the past year. This is in addition to the “new board member” educational requirement.

*Key Takeaway: Simply signing a statement that you have read the governing documents and will work to uphold them to the best of your ability, in and of itself, is no longer sufficient to comply with the Board Member certification requirement.  It is clear that the new changes are aimed at ensuring that Board Members cannot “bury their heads in the sand” regarding the legal requirements of operating condominiums and will be proactive in ensuring awareness of the requirements of serving their communities.

C. Prohibition on Board Members “Retaliating” against Owners

The new changes expressly prohibit associations from “retaliating” against an owner, who, in good faith, does any of the following actions:

(i) filed a complaint with a governmental agency against the association;
(ii) organized, encourages, or participated in a unit owner’s organization;
(iii) exercised his or her rights under the Florida Statutes (for instance, by submitting a record inspection request or submitting questions via certified mail to the association); and/or,
(iv) made public statements critical of the operation or management of the association.

Further, associations may not expend association funds to bring a lawsuit for defamation against an owner or any other claim against an owner based on the conduct described in paragraphs “(i)-(iv)” above.

*Key Takeaway:  There is no doubt that every community, from time to time, has to deal with at least one difficult owner.  However, the law makes clear that public criticism from owners is “part of the job” of serving on the Board, and an owner expressing his or her opinion (even in a not-so-nice fashion) on operational issues is not a valid basis for the Board to pursue enforcement action with the common funds of the association.  As such, prior to considering sending a “cease and desist” demand letter (or other enforcement measures) to an owner regarding his or her public comments or criticism, it is suggested to review the situation with legal counsel to evaluate the most appropriate option to pursue.

As noted, the topics discussed here are only a small part of the larger changes contained in the new laws for 2024 and beyond. In the coming weeks and months, we will offer additional information regarding other such changes in future editions of Legal Morsels. In the interim, should you have any questions regarding these or any other changes, feel welcome to check with your association attorney.

Kaye Bender Rembaum
Reach any office: 800-974-0680

 

Architectural Committees Formal Procedures, Published Standards, and Self Help by REMBAUM’S ASSOCIATION ROUNDUP

Architectural Committees Formal Procedures, Published Standards, and Self Help by REMBAUM’S ASSOCIATION ROUNDUP

  • Posted: Jun 19, 2024
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Architectural Committees Formal Procedures, Published Standards, and Self Help

by REMBAUM’S ASSOCIATION ROUNDUP

Formal Procedures

There are strict legal requirements that a homeowners’ association’s (HOA) architectural review committee (ARC) must follow, most especially if the ARC intends to deny an owner’s request. As this author has witnessed countless times, it is likely that many ARCs do not conduct their activities in conformity with Florida law such that an ARC denial may not withstand judicial scrutiny. If these legal requirements are not followed, and the ARC denies the owner’s architectural request, then it would be quite easy for the owner to challenge the ARC’s decision and prevail. Upon prevailing, the owner would be entitled to their prevailing party attorney’s fees and costs, as well. It is so easy to avoid this outcome, yet so few associations take the time to do it right.

Pursuant to §720.303(2), Florida Statutes, a meeting of the ARC is required to be open and noticed in the same manner as a meeting of the association’s board of directors. Notice of the ARC meeting must be posted in a conspicuous place in the community at least 48 hours in advance of the meeting, and the meeting must be open for all members to attend. Further, pursuant to §720.303(2)(c)(3), Florida Statutes, members of the ARC are not permitted to vote by proxy or secret ballot. Also, bare bone minutes should be taken to create a record of ARC decisions—especially denials.

We often hear from many HOAs that the ARC does not meet openly and does not notice their meetings. This leaves decisions made by the ARC vulnerable to challenge. If the ARC denies an application but fails to do so at a properly noticed board meeting, the owner can challenge the denial, claiming that it is not valid because the ARC did not follow proper procedure. In such cases, the ARC’s denial of an application is not valid because the ARC failed to comply with the procedural requirements for the meeting even if an application violates the declaration or other association-adopted architectural standards. However, by complying with the provisions of Chapter 720, Florida Statutes, your HOA can work to avoid this debacle.

 

 

Published Standards

Often a top priority for an HOA is ensuring that homes in the community maintain a harmonious architectural scheme in conformity with community standards and guidelines, and because the ARC is at the frontline of owners’ alterations and improvements to their homes, it is instrumental in ensuring that the community standards and guidelines are met. Pursuant to §720.3035(1), Florida Statutes, an HOA, or the ARC, “has the authority to review and approve plans and specifications only to the extent that the authority is specifically stated or reasonably inferred as to location, size, type, or appearance in the declaration or other published guidelines and standards.” But not every owner request is typically addressed in the declaration or other published guidelines and standards. If not, then the association may not be in a good position for proper denial. Therefore, the ARC is only as effective as the objective guidelines and standards (set forth in the declaration and other published guidelines and standards) are inclusive. So, what is the association to do when the ARC receives an owner’s application for an alteration to the home, but the association does not have any architectural guidelines or standards regulating the requested alteration?

While not court tested yet, a possible solution for this conundrum is to include a “catch-all” provision in the declaration to proactively address those ARC applications where a member may request a modification that is not directly addressed by the governing documents. Such a “catch-all” provision stands for the proposition that, if such a request is made, then the existing state of the community is the applicable standard by which the ARC application is to be judged. For example, imagine if an owner applies to the ARC to paint the owner’s house pink. If there are no architectural guidelines or standards that address what color a house must be, and there are no pink houses in the community, then the existing state of the community may provide a lawful basis for the ARC to deny the request because there are no existing pink houses in the community.

The Trouble With Self-Help Provisions

What if an owner refuses to maintain the owner’s property, such as pressure washing a dirty roof, despite the HOA sending demand letters, levying a fine, and perhaps even suspending the owner’s right to use the HOA’s recreational facilities? What is the HOA’s next step? Is it time to file a lawsuit to compel compliance? Well, Chapter 718 (governing condominiums), Chapter 719 (governing cooperatives), and Chapter 720 (governing HOAs) of the Florida Statutes authorize the association to bring an action at law or in equity to enforce the provisions of the declaration against the owner. Additionally, many declarations contain “self-help” language that authorizes the association to cure a violation on behalf of the owner and even, at times, assess the owner for the costs of doing so. These “self-help” provisions generally contain permissive language, meaning the association, may, but is not obligated to, cure the violation. Sadly, in this instance the word “may” means “shall,” and to find out why, read on.

There is a general legal principal that, if a claimant has a remedy at law (e.g., the ability to recover money damages under a contract), then it lacks the legal basis to pursue a remedy in equity (e.g., an action for injunctive relief). Remember, too, that an association’s declaration is a contract. In the context of an association, the legal remedy would be exercising the “self-help” authority granted in the declaration. An equitable remedy would be bringing an action seeking an injunction to compel an owner to take action to comply with the declaration. Generally, a court will only award an equitable remedy when the legal remedy is unavailable, insufficient, or inadequate.

Assume that the association’s declaration contains both the permissive “self-help” remedy and the right to seek an injunction from the court. Accordingly, it would appear the association has a decision to make—go to court to seek the injunction or enter onto the owner’s property, cure the violation, and assess the costs of same to the owner. However, recent Florida case law affirmed a complication to what should be a simple decision. In two cases decided ten years apart, Alorda v. Sutton Place Homeowners Association, Inc., 82 So.3d 1077 (Fla. 2nd DCA 2012) and Mauriello v. Property Owners Association of Lake Parker Estates, Inc., 337 So.3d 484 (Fla. 2nd DCA 2022), Florida’s Second District Court of Appeal decided that an association did not have the right to seek an injunction to compel an owner to comply with the declaration if the declaration provided the association the authority, but not the obligation, to engage in “self-help” to remedy the violation. Expressed simply, this is because the legal contractually based “self-help” remedy must be employed before one can rely upon equitable remedy of an injunction. Therefore, even though the declaration provided for an optional remedy of “self-help,” it must be used before seeking the equitable remedy of an injunction.

In Alorda, the owners failed to provide the association with proof of insurance required by the declaration. Although the declaration allowed the association to obtain the required insurance, the association filed a complaint against the owners seeking injunctive relief, asking the court to enter a permanent mandatory injunction requiring the owners to obtain the requested insurance. The owners successfully argued that even though they violated the declaration, the equitable remedy of an injunction was not available because the association already had an adequate legal remedy—the “self-help” option of purchasing the required insurance and assessing them for same. The Court agreed.

In Mauriello, the declaration contained similar language as in Alorda but involved the issue of the owners failing to keep their lawn and landscaping in good condition as required by the declaration. The association filed a complaint seeking a mandatory injunction ordering the owners to keep their lawn and landscaping in a neat condition. However, the facts were complicated by the sale of the home in the middle of the suit when the new owners voluntarily brought the home into compliance with the declaration. The parties continued to fight over who was entitled to prevailing party attorney’s fees with the association arguing it was entitled to same because the voluntary compliance was only obtained after the association was forced to commence legal action. The owners, citing Alorda, argued that the complaint should have been dismissed at the onset because the association sought an equitable remedy (injunction) when a legal remedy was already available—the exercise of its “self-help” authority. The Court considered the award of attorney’s fees after the dismissal of the association’s action for an injunction. Ultimately, the Court held that the owners were the prevailing party as the association could not seek the injunction because it already had an adequate remedy at law.

Accordingly, if your association’s declaration contains a “self-help” provision, and your association desires to seek an injunction against an owner rather than pursue “self-help,” the board should discuss the issue in greater detail with the association’s legal counsel prior to proceeding. Also, remember that if the association wants to enforce architectural standards, then they must be published to the membership; and always remember to notice ARC meetings and take minutes.

 

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“Video Cameras—for Surveillance Purposes Only” by Kevin L. Edwards of Becker Lawyers

“Video Cameras—for Surveillance Purposes Only” by Kevin L. Edwards of Becker Lawyers

“Video Cameras—for Surveillance Purposes Only”

Many associations have installed video surveillance cameras within the community common areas as a means to provide security for their residents. However, good intentions often lead to unanticipated consequences. In fact the use of video cameras may expose an association to liability.

Generally, an association is not a guarantor or insurer of any person’s safety and is not obligated to provide “security” to its residents. However, once an association assumes a duty to provide security, it must do so in a non-negligent manner. This may very well be the case with installing “security cameras.” Florida courts have routinely held that if an association undertakes, or appears to undertake, the duty to provide security for its community, it must also take certain measures to prevent criminal activity from occurring on the premises.

For example, the court in Vazquez v. Lago Grande Homeowners Ass’n, 900 So. 2d 587 (Fla. 3d DCA 2004), ruled that the association had a duty to exercise reasonable care to guard its residents against crime or criminal activity because the association had undertaken the responsibility to provide such security. In this case the association was a gated community with a guardhouse staffed 24 hours a day. The developer marketed the complex on the basis of safety, and the association collected a specific part of its assessments to provide for security. A resident of the association moved into the community because it appeared safe and was gated. The resident had many visitors, including a former neighbor and the neighbor’s children. One day the  former neighbor’s estranged husband came into the community to pick up his children and got into an argument with the resident. Thereafter, the resident instructed the association’s security guards not to let the estranged husband into the community. Despite this, the security guards allowed the estranged husband to enter the community, and he shot the resident, shot and killed his ex-wife, and killed himself. The court found that the association had breached its duty to provide security because it continued to employ the security guards despite knowing that they routinely let unauthorized individuals into the community. Therefore, the association was found liable for the death of a visitor and  injury of a resident.

Thus, associations may wish to be careful not to label the video cameras as “security cameras” and instead let the owners know that the cameras are for surveillance purposes only. As previously mentioned, associations have no duty to provide security, and having “security cameras” will lead owners to believe that the association is providing security.

Regardless of whether the association uses video cameras, it is still liable for criminal conduct that is reasonably foreseeable. In Czerwinski v. Sunrise Point Condominium, 540 So. 2d 199 (Fla. 3rd DCA 1999), the court ruled that a landlord generally has no duty to ensure the safety of its tenants or to protect them from the criminal acts of third persons unless the criminal occurrence is reasonably foreseeable. The court further noted that the landlord’s knowledge of prior crimes, against both persons and property, is relevant to the issue of foreseeability, even if the prior criminal acts are lesser crimes than the one committed against the plaintiff.

Based on these cases, community associations have been held liable in tort for failure to take precautions against criminal activities committed against the owners and residents if those criminal activities are reasonably foreseeable; and in addition they have been held liable when they voluntarily provide security services but fail to provide them in a reasonable manner.

Thus, if the association is inclined to install video cameras, it must do so in a reasonably prudent manner and should make sure the cameras are always being maintained in good condition and repaired as needed.

Another issue with providing cameras in the community is whether or not the cameras record audio. Florida law (Section 934.03, FS) makes it illegal to intentionally intercept, attempt to intercept, or procure any other person to intercept any wire, electronic, or oral communication through the use of a device if one does not have the prior consent of all parties. Therefore, the association’s cameras must be limited to visual images. The process of taking and recording video is perfectly legal, and you do not need to notify the owners or post signs upon the property that the association is taking or recording video. There is no privacy issue as long as the cameras are not directed into a resident’s home or into a bathroom, shower, changing room, or other area where there is a reasonable expectation of privacy. There is no reasonable expectation of privacy for persons who use the common areas or come onto the association’s property (with the exception of bathrooms, showers, units, etc.).

Lastly, a surveillance camera’s video recordings are not part of the association’s official records. The association’s official records are limited to written records, and a video recording is not a written record. As such, video camera recordings are not open for review by the association’s membership. Moreover, an association is not legally obligated to store the recordings for any specific period of time. However, if stored for any amount of time, the association must be sure to preserve the video in case it may be used as evidence in a court proceeding. Video footage should, therefore, be made and stored in a location where it will not be tampered with or duplicated. The footage should be stored in a secure location with access limited to authorized personal. Any footage that is to be kept should be preserved in an original and unaltered version by saving it in a secure manner that is incapable of being edited.

 

Mr. Edwards manages the community association practice in Becker’s Sarasota office and serves as corporate counsel to hundreds of condominium, cooperative, mobile home, and homeowners’ associations located in Sarasota, Manatee, Charlotte, and Highlands Counties. Mr. Edwards is also one of only 190 attorneys statewide who is a board-certified specialist in condominium and planned development law.

In addition to his extensive experience as a community association lawyer, Mr. Edwards has trial and appellate experience in many areas of corporate and civil litigation, construction litigation, covenant enforcement, real estate, and foreclosure law.

For more information email kedwards@beckerlawyers.com, or visit www.beckerlawyers.com.

 

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SECURING YOUR GATED COMMUNITY Exactly Who Is Allowed In? by KBR Legal

SECURING YOUR GATED COMMUNITY Exactly Who Is Allowed In? by KBR Legal

  • Posted: May 20, 2024
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SECURING YOUR GATED COMMUNITY  Exactly Who Is Allowed In?

by  Kaye Bender Rembaum

 

While living in a gated community can add peace of mind for the residents who live behind the gates, there are many important considerations for the association when crafting rules and regulations regarding who may and who may not be permitted to enter the community. In today’s gated communities, there are three entry control options: (i) live personnel to monitor the gate, (ii) a virtual gate guard where the gate guard who allows guests to pass through is off-site and monitoring electronically, or (iii) a simple call box.

Many associations adopt rules which require visitors to the community to present valid identification to ensure that the visitors are authorized by the association or a resident to enter the community. But, what kind of identification can an association require? Are there limits? In the end, the association must balance its interest in ensuring that only authorized visitors enter the community with the rights of the owners and the visitors entering the community.

One question which bears analysis is, is the association permitted to “swipe” a driver license? Section 322.143, Fla. Stat. (2021), defines “swiping” a driver license as the act of passing a driver license or identification card through a device that is “capable of deciphering, in an electronically readable format, the information electronically encoded in a magnetic strip or bar code on the driver license or identification.”

Pursuant to §322.143, Fla. Stat. (2021), a private entity is not permitted to “swipe” an individual’s driver license or identification card to capture and store information contained in the magnetic strip unless the individual consents to allow this, and the association informs the individual what information will be collected and the purpose or purposes for which it will be used. However, an exception exists in that the association is allowed to “swipe” the driver license to verify the authenticity of the driver license, as long as the association is not capturing and storing the information on the magnetic strip. More specifically, §322.143(2)(a), Fla. Stat. (2021), provides, in pertinent part, the following:

    (2) Except as provided in subsection (6), a private entity may not swipe an individual’s driver license or identification card, except for the following purposes:

        (a) To verify the authenticity of a driver license or identification card or to verify the identity of the individual if the individual pays for a good or service with a method other than cash, returns an item, or requests a refund.

 

 

In accordance with the foregoing, an association is permitted to “swipe” a driver license but is not permitted to store, sell, or share the personal information collected from swiping the driver license. Although swiping without storing the information is permitted, this author recommends that the association fully avoid swiping the driver license. If the information was inadvertently or even temporarily stored on the device that the association used to swipe the driver license, the association would be in violation of this statute. Note that manually collecting personal information or making a photocopy or other copy of the front of the driver license is not prohibited by the statute and is a far safer practice.

Another question worth addressing is, can the association require a valid United States driver license for any drivers entering the community? Be warned, such a requirement could land the association in hot water. Although the association can likely require any driver entering the community to have a valid driver license, the association cannot require that the license be issued in the United States.

Pursuant to §322.04(1), Fla. Stat. (2021), “a nonresident who is at least 16 years of age and who has in his or her immediate possession a valid noncommercial driver license issued to the nonresident in his or her home state or country” is permitted to operate a vehicle without a Florida license. In other words, a driver with a proper license in another state or another country is legally permitted to drive in Florida as long as they have their valid noncommercial driver license in their possession. Similarly, an association should accept a valid license issued from another state or country for entry into the community.

If the above is not enough to encourage your associations to accept driver licenses from all countries and states, consider that a policy requiring a driver license issued in the United States may be considered a violation of the Fair Housing Act in that doing so may be deemed discrimination based upon national origin and may form the basis of a discrimination lawsuit based on disparate treatment or disparate impact. “Disparate treatment” is an intentional form of discrimination, whereas “disparate impact” discrimination occurs when a policy has an unintentional negative effect on members of a protected class. Thus, while this author is not aware of any such appellate decisions issued in the State of Florida, the last thing any association needs is to be the first defendant in such a Fair Housing Act lawsuit.

 

With regard to all rules adopted by the board of the association, rules regarding who can enter the community are only enforceable if they are within the board’s scope of authority and are reasonable for the purpose. If a rule is outside the board’s scope of authority as set out in the governing documents of the association, or if the rule represents arbitrary or capricious decision-making, such rule will not be enforceable. When adopting rules, remember the following:

  1. The board or the body making the rule must have authority from the governing documents or statute to adopt the rule.
  2. The rule cannot conflict with any rights afforded by documents of higher priority, whether express or implied rights.
  3. The rule must be reasonable. Reasonableness is hard to define, but the case law provides that the rule must be rationally related to a legitimate association objective. The rule cannot be wholly arbitrary or capricious.
  4. The rule cannot contravene any law or compelling public policies.
  5. The rule must be adopted in a procedurally correct manner, which includes proper notice.

 

On a different note, remember that material alterations to the gate area may require a vote of the membership.

In regard to official records and as to homeowners associations, §720.303(5)(c), Fla. Stat. (2021), provides, in relevant part, that although part of the official records of the association, “[i]nformation an association obtains in a gated community in connection with guests’ visits to parcel owners or community residents” are not accessible to members.

As is evident from this discussion, there are many different issues to take into consideration when drafting rules governing who is permitted in your community. To ensure that your rules comply with Florida law, we recommend that the association have its counsel review any rules prior to their adoption.

Jeffrey A. Rembaum, Esq., BCS

Jeffrey Rembaum’s, Esq. legal practice consists of representation of condominium, homeowners, commercial and mobile home park associations, as well as exclusive country club communities and the developers who build them. Mr. Rembaum is a Certified Specialist in Condominium and Planned Development Law. He is the creator of “Rembaum’s Association Roundup,” an e-magazine devoted to the education of community association board members, managers, developers and anyone involved with Florida’s community associations. His column appears monthly in the Florida Community Association Journal. Every year since 2012, Mr. Rembaum has been selected to the Florida Super Lawyers list, and was also named Legal Elite by Florida Trends Magazine. He can be reached at 561-241-4462.

 


If you are looking for a company to help with securing your Gates, Doors to your Amenities, Our members can help.

Florida’s Top Access Control System Companies, CCTV, Security Gates and Card Readers. keeping your properties safe and secure. State Approved Members of SFPMA

Search for Security & Access Control Members

 

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Find everything you need to know about Florida Building Inspections SB-4D

Find everything you need to know about Florida Building Inspections SB-4D

Florida Condo Building Inspections (SB4d)

http://FLBuildingInspections.com  (a division of SFPMA)

Find everything you need to know about Florida Building Inspections SB-4D

It’s a confusing time for everyone affected, and we can all use some extra clarity. Our experts dove through the 88 page document and outline what you need to know about SB-4D so you can focus on making your building safer instead of deciphering the wordy documents.

Florida state legislature took swift action to implement inspection reform to mitigate the risk of a similar tragedy in the future. As of May 27th, 2022, Florida passed several laws to keep building safer in the state by requiring specific inspections and funding mechanisms. These new Florida condo laws mean significant changes for building owners across Florida, all within a relatively short time.

 

The State of Florida Property Management Association with Legal & Engineering Members are here to help you understand the new laws and how to take the correct action now to ensure you are in full compliance.

When you need your condo inspection contact us!

 

More about Florida Building Inspections:

Our Building Services Division, With the addition of the new Law, (SB4D) We have had many calls, emails and messages sent to SFPMA. There are so many with questions, many are still asking what can they do? How do we go about doing these inspections! We are Bringing this information to Boards, Owners and Management Professionals throughout Florida.

Condos need to take action for Registration before January 2023. Next is Inspections by an Engineer or Architect along with Mandatory Reserve Funding.

SFPMA and our Members will provide information to make these new legal requirements easier to understand and learning through the articles re: Legal, Maintenance, Engineering, Services to name a few.

 

Florida Condo Building Inspections (SB4d)

Milestone Inspections

Structural Integrity Reserve Studies

Mandatory Reserves

 

 

On our website and social media we have pages where we post daily with updates, Laws and the Top Companies/Members who are ready to inspect your buildings.

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Mandatory Condominium & Cooperative Building Inspections and Non-Waivable Reserve Requirements | SENATE BILL 4-D

Mandatory Condominium & Cooperative Building Inspections and Non-Waivable Reserve Requirements | SENATE BILL 4-D

  • Posted: Mar 28, 2024
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Mandatory Condominium & Cooperative Building Inspections and Non-Waivable Reserve Requirements | SENATE BILL 4-D

brought to us by: REMBAUM’S ASSOCIATION ROUNDUP

We are getting so many calls from condo owners about inspections.  SFPMA thought why not re-post a great article about the inspections  what led up to this changes and what going forward are the requirements in Florida.  

With home insurers leaving Florida in droves, and following pressure from members of both political parties in the legislature to actually do something about it, in May 2022, the governor called a special legislative session to address the problem. A very real concern to the insurers is the effect of both time and inclement weather on Florida’s aging high-rise buildings. Until now, and for the most part, Florida law largely ignored these concerns. Enter Senate Bill 4-D (SB 4-D) which already became effective upon being signed into law by Governor DeSantis on May 26, 2022. This new piece of legislation addresses condominium and cooperative building inspections and reserve requirements (while this article primarily addresses these new laws in the context of condominium association application, they are equally applicable to cooperative associations).

By way of background, during the regular legislative session, there were several bills introduced in the Florida House of Representatives (House) and in the Florida Senate (Senate) addressing building safety issues, but none of them were passed into law due to the inability to match the language of the bills in both the House and the Senate which is a requirement for legislation to pass and go to the governor for consideration. As such, it was a little surprising to many observers that the legislature was able to approve SB 4-D in essentially a 48-hour window during the special session in May. The language used in SB 4-D was initially drafted into a proposed bill in November 2021. At that time, and during the most recent legislative session, input was provided by many industry professional groups including engineers, reserve study providers, and association attorneys. Many of these industry professionals indicated that there were challenges with some of the language and concepts being proposed in SB 4-D during session.

Notwithstanding these challenges, and in an effort to ensure some form of life safety legislation was passed this year, SB 4-D was unanimously approved in both the House and Senate and signed by the governor. A plain reading of this well intended, but in some instances not completely thought-out, legislation evidences these challenges. Some will say it is a good start that will need significant tweaking, which is expected during the 2023 Legislative Session. Others praise it, and yet others say it is an overreach of governmental authority, such as an inability to waive or reduce certain categories of reserves. You be the judge. We begin by examining the mandatory inspection and reserve requirements of SB 4-D.

I. MILESTONE INSPECTIONS: MANDATORY STRUCTURAL INSPECTIONS FOR CONDOMINIUM AND COOPERATIVE BUILDINGS. (§553.899, Fla. Stat.)

You will not find these new milestone inspection requirements in Chapters 718 or 719 of the Florida Statutes, but rather in Chapter 553, Florida Statutes, as cited above.

MILESTONE INSPECTIONS:

The term “milestone inspection” means a structural inspection of a building, including an inspection of load-bearing walls and the primary structural members and primary structural systems as those terms are defined in section 627.706, Florida Statutes, by a licensed architect or engineer authorized to practice in this state for the purposes of attesting to the life safety and adequacy of the structural components of the building and, to the extent reasonably possible, determining the general structural condition of the building as it affects the safety of such building, including a determination of any necessary maintenance, repair, or replacement of any structural component of the building. The purpose of such inspection is not to determine if the condition of an existing building is in compliance with the Florida Building Code or the fire safety code.

SUBSTANTIAL STRUCTURAL DETERIORATION:

The term “substantial structural deterioration” means substantial structural distress that negatively affects a building’s general structural condition and integrity. The term does not include surface imperfections such as cracks, distortion, sagging, deflections, misalignment, signs of leakage, or peeling of finishes unless the licensed engineer or architect performing the phase one or phase two inspection determines that such surface imperfections are a sign of substantial structural deterioration.

MILESTONE INSPECTIONS FOR BUILDINGS THREE STORIES OR MORE IN HEIGHT:

A condominium association under chapter 718 and a cooperative association under chapter 719 must have a milestone inspection performed for each building that is three stories or more in height by December 31 of the year in which the building reaches 30 years of age, based on the date the certificate of occupancy for the building was issued, and every 10 years thereafter.

WITHIN THREE MILES OF COASTLINE:

If the building is three or more stories in height and is located within three miles of a coastline, the condominium association or cooperative association must have a milestone inspection performed by December 31 of the year in which the building reaches 25 years of age, based on the date the certificate of occupancy for the building was issued, and every 10 years thereafter.

The condominium association or cooperative association must arrange for the milestone inspection to be performed and is responsible for ensuring compliance.

The condominium association or cooperative association is responsible for all costs associated with the inspection.

IF THE CERTIFICATE OF OCCUPANCY WAS ISSUED BEFORE JULY 1, 1992:

If a milestone inspection is required under this statute and the building’s certificate of occupancy was issued on or before July 1, 1992, the building’s initial milestone inspection must be performed before December 31, 2024. If the date of issuance for the certificate of occupancy is not available, the date of issuance of the building’s certificate of occupancy shall be the date of occupancy evidenced in any record of the local building official.

Upon determining that a building must have a milestone inspection, the local enforcement agency must provide written notice of such required inspection to the condominium association or cooperative association by certified mail, return receipt requested.

Within 180 days after receiving the written notice the condominium association or cooperative association must complete phase one of the milestone inspection. For purposes of this section, completion of phase one of the milestone inspection means the licensed engineer or architect who performed the phase one inspection submitted the inspection report by e-mail, United States Postal Service, or commercial delivery service to the local enforcement agency.

A MILESTONE INSPECTION CONSISTS OF TWO PHASES:

    (a) PHASE 1: For phase one of the milestone inspection, a licensed architect or engineer authorized to practice in this state must perform a visual examination of habitable and non-habitable areas of a building, including the major structural components of a building, and provide a qualitative assessment of the structural conditions of the building. If the architect or engineer finds no signs of substantial structural deterioration to any building components under visual examination, phase two of the inspection (discussed below) is not required. An architect or engineer who completes a phase one milestone inspection shall prepare and submit an inspection report.

    (b) PHASE 2: A phase two of the milestone inspection must be performed if any substantial structural deterioration is identified during phase one. A phase two inspection may involve destructive or nondestructive testing at the inspector’s direction. The inspection may be as extensive or as limited as necessary to fully assess areas of structural distress in order to confirm that the building is structurally sound and safe for its intended use and to recommend a program for fully assessing and repairing distressed and damaged portions of the building. When determining testing locations, the inspector must give preference to locations that are the least disruptive and most easily repairable while still being representative of the structure. An inspector who completes a phase two milestone inspection must prepare and submit an inspection report.

POST-MILESTONE INSPECTION REQUIREMENTS:

Upon completion of a phase one or phase two milestone inspection, the architect or engineer who performed the inspection must submit a sealed copy of the inspection report with a separate summary of, at minimum, the material findings and recommendations in the inspection report to the condominium association or cooperative association, and to the building official of the local government which has jurisdiction. The inspection report must, at a minimum, meet all of the following criteria:

(a) Bear the seal and signature, or the electronic signature, of the licensed engineer or architect who performed the inspection.

(b) Indicate the manner and type of inspection forming the basis for the inspection report.

(c) Identify any substantial structural deterioration within a reasonable professional probability based on the scope of the inspection, describe the extent of such deterioration, and identify any recommended repairs for such deterioration.

(d) State whether unsafe or dangerous conditions, as those terms are defined in the Florida Building Code, were observed

(e) Recommend any remedial or preventive repair for any items that are damaged but are not substantial structural deterioration

(f) Identify and describe any items requiring further inspection.

LOCAL GOVERNMENT ENFORCEMENT:

A local enforcement agency may prescribe time lines and penalties with respect to compliance with the milestone inspection requirements.

A board of county commissioners may adopt an ordinance requiring that a condominium or cooperative association schedule or commence repairs for substantial structural deterioration within a specified time frame after the local enforcement agency receives a phase two inspection report; however, such repairs must be commenced within 365 days after receiving such report. If an association fails to submit proof to the local enforcement agency that repairs have been scheduled or have commenced for substantial structural deterioration identified in a phase two inspection report within the required time frame, the local enforcement agency must review and determine if the building is unsafe for human occupancy.

BOARD’S DUTY AFTER OBTAINING THE MILESTONE REPORT:

Upon completion of a phase one or phase two milestone inspection and receipt of the inspector-prepared summary of the inspection report from the architect or engineer who performed the inspection, the association must distribute a copy of the inspector-prepared summary of the inspection report to each unit owner, regardless of the findings or recommendations in the report, by United States mail or personal delivery and by electronic transmission to unit owners who previously consented to receive notice by electronic transmission; must post a copy of the inspector-prepared summary in a conspicuous place on the condominium or cooperative property; and must publish the full report and inspector-prepared summary on the association’s website, if the association is required to have a website.

WHO PAYS FOR THE MILESTONE INSPECTION:

Pursuant to section 718.112, Florida Statutes, if an association is required to have a milestone inspection performed, the association must arrange for the milestone inspection to be performed and is responsible for ensuring compliance with all of the requirements thereof. The association is responsible for all costs associated with the inspection.

FAILURE TO OBTAIN THE MILESTONE INSPECTION:

If the officers or directors of an association willfully and knowingly fail to have a milestone inspection performed pursuant to section 553.899, Florida Statutes, such failure is a breach of the officers’ and directors’ fiduciary relationship to the unit owners.

MANAGER’S DUTY:

If a community association manager or a community association management firm has a contract with a community association that has a building on the association’s property that is subject to milestone inspection, the community association manager or the community association management firm must comply with the requirements of performing such inspection as directed by the board.

EXEMPTIONS:

For clarity, the otherwise required milestone inspection does not apply to a single family, two-family, or three-family dwelling with three or fewer habitable stories above ground.

FLORIDA BUILDING COMMISSION REQUIREMENTS:

The Florida Building Commission must review the milestone inspection requirements and make recommendations, if any, to the legislature to ensure inspections are sufficient to determine the structural integrity of a building. The commission must provide a written report of any recommendations to the Governor, the President of the Senate, and the Speaker of the House of Representatives by December 31, 2022.

The Florida Building Commission must consult with the State Fire Marshal to provide recommendations to the legislature for the adoption of comprehensive structural and life safety standards for maintaining and inspecting all types of buildings and structures in this state that are three stories or more in height. The commission must provide a written report of its recommendations to the Governor, the President of the Senate and the Speaker of the House of Representatives by December 31, 2023.

II.    STRUCTURAL INTEGRITY RESERVE STUDIES AND MANDATORY RESERVES:

The reserve legislation set out in section 718.112 (f)(2)(a), Florida Statutes, is, for all intents and purposes, re-written. Prior to examining these most recent revisions, it is necessary to first examine the definitions set out in section 718.103, Florida Statutes, where a brand new term is added as follows:

Structural integrity reserve study means a study of the reserve funds required for future major repairs and replacement of the common areas based on a visual inspection of the common areas applicable to all condominiums and cooperative buildings 3 stories or higher.

Hereafter, the structural integrity reserve study is referred to as “SIRS”. Now we can turn our attention to the requirements of the SIRS as set out in section 718.112 (f)(2)(a), Florida Statutes

THE STRUCTURAL INTEGRITY RESERVE STUDY (required for all condominium and cooperative buildings three stories or higher regardless of date of certificate of occupancy):

An association must have a SIRS completed at least every 10 years after the condominium’s creation for each building on the condominium property that is three stories or higher in height which includes, at a minimum, a study of the following items as related to the structural integrity and safety of the building:

a. Roof
b. Load-bearing walls or other primary structural members
c. Floor
d. Foundation
e. Fireproofing and fire protection systems
f.  Plumbing
g. Electrical systems
h. Waterproofing and exterior painting
i.  Windows
j. Any other item that has a deferred maintenance expense or replacement cost that exceeds $10,000 and the failure to replace or maintain such item negatively affects the items listed in subparagraphs a.-i., as determined by the licensed engineer or architect performing the visual inspection portion of the structural integrity reserve study.

The SIRS may be performed by any person qualified to perform such study. However, the visual inspection portion of the structural integrity reserve study MUST be performed by an engineer licensed under chapter 471 or an architect licensed under chapter 481.

As further set out in the legislation, at a minimum, “a structural integrity reserve study must identify the common areas being visually inspected, state the estimated remaining useful life and the estimated replacement cost or deferred maintenance expense of the common areas being visually inspected, and provide a recommended annual reserve amount that achieves the estimated replacement cost or deferred maintenance expense of each common area being visually inspected by the end of the estimated remaining useful life of each common area.”

The amount to be reserved for an item is determined by the association’s most recent structural integrity reserve study that must be completed by December 31, 2024. If the amount to be reserved for an item is not in the association’s initial or most recent structural integrity reserve study or the association has not completed a structural integrity reserve study, the amount must be computed using a formula based upon estimated remain useful life and estimated replacement cost or deferred maintenance expense of each reserve item.

If the condominium building is less than three stories then the legislation provides that, “in addition to annual operating expenses, the budget must include reserve accounts for capital expenditures and deferred maintenance. These accounts must include, but are not limited to, roof replacement, building painting, and pavement resurfacing, regardless of the amount of deferred maintenance expense or replacement cost, and any other item that has a deferred maintenance expense or replacement cost that exceeds $10,000.”

The association may adjust replacement reserve assessments annually to take into account any changes in estimates or extension of the useful life of a reserve item caused by deferred maintenance.

If an association fails to complete a SIRS, such failure is a breach of an officer’s and director’s fiduciary relationship to the unit owners.

NON-WAIVABLE AND WAIVABLE RESERVES IN THE UNIT OWNER CONTROLLED ASSOCIATION:

As to the SIRS, the legislation is patently clear that unit owners may not vote for no reserves or lesser reserves for items set forth SIRS report. There is on-going debate amongst attorneys in regard to whether a condominium under three stories can waive or reduce reserves for any of the reserve items required to be in the SIRS that are included in the under three story condominium reserve, for example, roof and painting (For those interested, examine lines 1029 to 1033 and 1050 to 1071 in SB 4-D).

MANDATORY RESERVES IN THE DEVELOPER CONTROLLED ASSOCIATION:

Before turnover of control of an association by a developer to unit owners other than a developer pursuant to section 718.301, Florida Statutes, the developer-controlled association may not vote to waive the reserves or reduce the funding of the reserves (Previously, a developer could fully waive all reserves for the first two years, meaning this is a monumental change).

PRE-TURNOVER DEVELOPER DUTY:

Before a developer turns over control of an association to unit owners other than the developer, the developer must have a SIRS completed for each building on the condominium property that is three stories or higher in height.

III.    OFFICIAL RECORDS:

Official records of the condominium and cooperative association include structural integrity reserve studies, financial reports of the association or condominium, and a copy of the inspection reports and any other inspection report relating to a structural or life safety inspection of condominium or cooperative property.

In addition to the right to inspect and copy the declaration, bylaws and rules renters have the right to inspect the milestone inspection report and structural integrity reserve study inspection reports as well.

Structural integrity reserve studies must be maintained for at least 15 years after the study is completed. In addition, inspection reports report and any other inspection report relating to a structural or life safety inspection of condominium property must be maintained for 15 years after receipt of such report.

IV.    ASSOCIATION WEBSITES:

In addition to other positing requirements, the inspection reports described above and any other inspection report relating to a structural or life safety inspection of condominium property and the association’s most recent structural integrity reserve study must be posted to the website.

V.    JURISDICTION OF DIVISION OF CONDOMINIUMS, TIMESHARES, AND MOBILE HOMES:

Pre-turnover, the Division of Florida Condominiums, Timeshares, and Mobile Homes (Division) may enforce and ensure compliance with rules relating to the development, construction, sale, lease, ownership, operation, and management of residential condominium units, and complaints related to the procedural completion of milestone inspections. After turnover has occurred, the Division has jurisdiction to investigate complaints related only to financial issues, elections, and the maintenance of and unit owner access to association records, and the procedural completion of structural integrity reserve studies.

VI. NEW REPORTING REQUIREMENTS FOR ALL CONDOMINIUM AND COOPERATIVE ASSOCIATIONS:

On or before January 1, 2023, condominium associations existing on or before July 1, 2022, must provide the following information to the Division in writing, by e-mail, United States Postal Service, commercial delivery service, or hand delivery, at a physical address or e-mail address provided by the division and on a form posted on the division’s website:

    1. The number of buildings on the condominium property that are three stories or higher in height.
    2. The total number of units in all such buildings.
    3. The addresses of all such buildings.
    4. The counties in which all such buildings are located.

An association must provide an update in writing to the division if there are any changes to the information in the list within six months after the change.

VII.    APPLICABLE TO ALL SELLERS OF UNITS:

As a part of the sales process, the seller of a condominium or cooperative unit and developers must provide to potential purchasers a copy of the inspector-prepared summary of the milestone inspection report and a copy of the association’s most recent structural integrity reserve study or a statement that the association has not completed a structural integrity reserve study.

VIII.    GLITCHES:

As with any new legislation of such a substantial nature, there often follow in subsequent years what are referred to as “glitch bills” which help provide additional clarity, remove ambiguity, and fix unintended errors. To name a few: (i) the term “common areas” is used in the legislation when in fact the correct term is “common element;” (ii) clarity needs to be provided regarding whether reserve items that are required to be in SIRS, but show up in the under three story reserves, such as paint and paving, can be waived or reduced by the membership; and (iii) for those buildings that are within three miles of the coastline, additional clarity could be provided to provide better guidance as to how to perform the measurement.

 

 

 

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HB 1203: LOTS OF NEW PROTECTIONS FOR MEMBERS LIVING IN HOAs MAKES IT HARDER FOR CAMs

HB 1203: LOTS OF NEW PROTECTIONS FOR MEMBERS LIVING IN HOAs MAKES IT HARDER FOR CAMs

  • Posted: Mar 27, 2024
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HB 1203: LOTS OF NEW PROTECTIONS FOR MEMBERS LIVING IN HOAs MAKES IT HARDER FOR CAMs

House Bill 1203 and SB 7046 merged to eventually create a huge bill for the protection of homeowners in HOAs.  It starts by placing lots of responsibilities on community association managers.

A community association manager or community association management firm that is authorized by contract to provide community association management services to a homeowners’ association must do all of the following:

(a) Attend in person at least one member meeting or board meeting of the homeowners’ association annually.

(b) Provide to the members of the homeowners’ association the name and contact information for each community association manager or representative of a community association management firm assigned to the homeowners’ association, the manager’s or representative’s hours of availability, and a summary of the duties for which the manager or representative is responsible. The homeowners’ association must also post this information on the association’s website or application required under s.720.303(4)(b). The community association manager or community association management firm must update the homeowners’ association and its members within 14 business days after any change to such information.

(c) Provide to any member upon request a copy of the contract between the community association manager or community association management firm and the homeowners’ association and include such contract with association’s governing documents.

So what do you think so far of the new protections for members of an HOA?

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Glazer and Sachs presents a forum for board members and owners to tell their side of the story. Hosted by Eric Glazer, a recognized authority in community association law, Condo Craze and HOAs offers valuable insights and lively discussions, attracting a diverse audience of homeowners and board members.

 

Fort Lauderdale Personal Injury Attorney at Maus Law Firm is here to support you.

Fort Lauderdale Personal Injury Attorney at Maus Law Firm is here to support you.

  • Posted: Feb 26, 2024
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Suffering a personal injury is a daunting experience, and it requires an empathetic and personal approach.

Fort Lauderdale Personal Injury Attorney at Maus Law Firm is here to support you.

We believe in fighting for your rights and ensuring you get the compensation you deserve, tailoring our approach to your unique situation.

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