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MAKE SURE YOUR DOCS DON’T COST YOU MONEY By Eric Glazer, Esq.

MAKE SURE YOUR DOCS DON’T COST YOU MONEY By Eric Glazer, Esq.

MAKE SURE YOUR DOCS DON’T COST YOU MONEY

By Eric Glazer, Esq.

Let’s start with what some of you already know……..foreclosures are on the rise.  Incredibly, this is happening before huge special assessments are kicking in for many of you and before mandatory reserves go into effect.  If foreclosures are already on the rise, what’s going to happen when special assessments and reserves take hold of most communities?

If a bank forecloses on either a home in an HOA or on a unit in a condominium, the association is likely to take a huge financial hit if that home or unit is also delinquent to the association.  When a bank forecloses on a property, most of the time that bank winds up becoming the owner of that property because nobody bids against the bank at a foreclosure sale.  For example, if an owner fails to pay the mortgage, the bank eventually forecloses and gets a final judgment against the owner for the amount of the delinquency plus interest and attorney’s fees.  The judge sets an auction date.  At the auction, the bank usually bids the amount of their final judgment, there are no other bids and the bank winds up owning the property.

Now that the bank owns the property, do they have to pay all of the assessments that are owed to the association on that home or condominium unit?  Not even close.  The law states that the bank would only have to pay the lesser of:

  • One year of assessments or;
  • One percent of the original mortgage debt;

So, let’s say the bank is foreclosing on a $300,000.00 mortgage.  One percent of that mortgage is $3,000.00.  Let’s say the assessments are $600.00 per month.  One year of assessments is $7,200.00.  Therefore, at most the bank is responsible for $3,000.00 and not $7,200.00 and this is even if the prior owner has not paid for several years.  There can be $15,000.00 in delinquent assessments owed on the unit —the bank would still only have to pay $3,000.00 at most.

Here’s where the association can really get stung.  If the governing documents let the bank off the hook and state that the bank does not have to pay anything if they wind up foreclosing and owning the property.  Even though the law would require the bank to pay $3,000.00 in the above example, the association’s governing documents may allow the bank to pay zero!  SO……………MAKE SURE YOUR GOVERNING DOCUMENTS DO NOT CONTAIN SUCH A PROVISION AND IF THEY DO – AMEND IT IMMEDIATELY BEFORE FORECLOSURES IN YOUR COMMUNITY POSSIBLY BECOME ROUTINE!  DON’T LET THE BANKS OFF THE HOOK!

Next week we’ll talk about what happens when a third party buys the property at a foreclosure sale and not the bank.  You definitely will want to find out the good and the potential for disaster.

 

You can read more articles from Eric Glazer on his Blog. 

 

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Preparing for Extreme Heat: The New Natural Disaster by Donna DiMaggio Berger of Becker

Preparing for Extreme Heat: The New Natural Disaster by Donna DiMaggio Berger of Becker

  • Posted: Jul 28, 2023
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Preparing for Extreme Heat: The New Natural Disaster

by Donna DiMaggio Berger / Becker

The word “hot” has many connotations: it can reveal anger when you say someone is “hot around the collar”; it can invoke personal appeal or desirability “he’s so hot”; it can refer to a disorganized person or situation, hence the description as “a hot mess”; and can also be used to describe an emotional issue or topic as a “hot button”. However, since the earliest of times, the word hot has been used to describe the temperature and we’ve been hearing this word a lot lately in many parts of the US given the ongoing heat waves. More than 61,000 people died in 2022 because of the heat waves that swept the European continent. We won’t know for some time how many US fatalities have occurred due to our extreme heat during the summer of 2023.

Extreme heat can cause dehydration, heat exhaustion, exacerbation of existing medical and mental health conditions, respiratory distress, and heatstroke. Dehydration can cause dizziness, fatigue, and muscle weakness. Heat exhaustion may result in heavy sweating, nausea, headache, rapid heartbeat, faintness, and muscle cramps. Extreme heat can more greatly affect people with underlying respiratory, cardiovascular and kidney disorders with extreme heat being tied to an increased risk of heart attacks or other cardiovascular events. Heatwaves have also been linked to diminished air quality in urban areas which can worsen respiratory conditions such as asthma. Lastly, extreme heat can impact mental well-being, leading to irritability, mood swings and difficulty concentrating, all of which can make communal living more stressful.

Dealing with extreme heat events in a multifamily building, especially for those on fixed incomes, can be challenging. What should your association board and management team be doing in response to an extreme heat event? Certainly, including preparation for heat waves into your emergency disaster plan is recommended. The following are some items you may wish to consider:

  • If your association has employees, work with counsel to review your employee guidebook particularly for employees whose work requires them to be outdoors. For those employees, you will want to be sure that they have access to plenty of water throughout the day to stay hydrated and replace fluids lost through perspiration. If those employees are required to wear a certain uniform that is not well suited to an extreme heat event, you should consider an alternate uniform for extreme heat event. You may also want to be confirm that your outside vendors who provide services outdoors have provided adequate water and protection from the sun for their workers.
  • Create shade around the building by using umbrellas, awnings, or strategically placed vegetation to reduce the impact of direct sunlight. Bear in mind that some of these shade additions may require advance membership approval.
  • Revisit any architectural control guidelines you have in place which may restrict or prohibit the use of fans on patios, balconies and lanais. Fans are used to circulate air and can create a cooling effect. Consider how curtains, blinds and blackout shades may reduce the temperature inside units particularly if a unit owner is not running the AC at reasonable temperatures. Allow people to close their blinds and/or their hurricane shutters during the day to block out direct
    sunlight and prevent heat from entering the living space.
  • Consider limiting daytime hours of play for outdoor tennis and pickleball courts as well as any other outdoor recreational areas when temperatures are soaring. Installing thermometers on the common areas may also help remind your residents about climbing temperatures.
  • Consider purchasing a whole building generator if you don’t already have one. In the event that increased electric demands during a heat wave cause a blackout or brownout that generator may save lives in your building. Naturally, a generator will also help in the aftermath of a windstorm which knocks out electricity.
  • Check in with your residents who may be living alone and dealing with physical or mental health challenges as well as economic burdens. These residents may not be running their A/C as often or at a
    temperature that is needed for their wellbeing. This is also the time to confirm that you have emergency contacts for your residents.
  • Reach out to local community organizations, social services, or government agencies that provide assistance during extreme weather events. They may offer cooling centers, fan distribution programs, or other resources for your residents.

The strategies your board and management team use in response to an extreme heat event depends, in large part, on your building’s location and infrastructure as well as the available monetary and personnel resources. However, there are some basic steps all associations can take to educate their residents about the dangers of extreme heat. The phrase, “we’re having a heat wave” doesn’t have to spell disaster in a well-prepared community.

For additional information please listen to my podcast conversation with Jane Gilbert, Miami-Dade’s Chief Heat Officer which can be found here.

 

 Donna DiMaggio Berger is a Shareholder with the Becker law firm, is Board-certified, is a Fellow with the College of Community Association Lawyers (CCAL) and is a keynote speaker and the host of the popular Take It To The Board podcast on association issues.

Donna DiMaggio Berger is a Shareholder in Becker’s Community Association Practice in Ft. Lauderdale, Florida. She is a member of the College of Community Association Lawyers (CCAL), a prestigious national organization that acknowledges community association attorneys who have distinguished themselves through contributions to the evolution or practice of community association law and who have committed themselves to high standards of professional and ethical conduct in the practice of community association law. She is also one of only 190 attorneys statewide who is a Board Certified Specialist in Condominium and Planned Development Law.

As Founder and Executive Director of Becker’s Community Association Leadership Lobby (CALL), Ms. DiMaggio Berger has led various community association advocacy initiatives, working with legislators and other public policymakers on behalf of those who live, serve, and work in common interest ownership communities. She has testified before the Florida Legislature regarding community association law and frequently appears on radio talk shows and in print media discussing these issues.

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NEW LAW MAKES IT CLEAR THE ASSOCIATION MUST MAKE THE REPAIRS. BUT SUPPOSE MONEY IS TIGHT AND THE DOCS ARE RESTRICTIVE?

NEW LAW MAKES IT CLEAR THE ASSOCIATION MUST MAKE THE REPAIRS. BUT SUPPOSE MONEY IS TIGHT AND THE DOCS ARE RESTRICTIVE?

  • Posted: Jul 27, 2023
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NEW LAW MAKES IT CLEAR THE ASSOCIATION MUST MAKE THE REPAIRS. BUT SUPPOSE MONEY IS TIGHT AND THE DOCS ARE RESTRICTIVE?

NEW CONDO LAW MAKES IT CLEAR THAT THE CONDO MUST MAKE THE REPAIR

By Eric Glazer, Esq.

I get so many calls and e-mails each week about whether the condominium or the unit owner is responsible to fix something that’s broken.  Florida Statute 718.113 was recently amended and here’s what it says:

 

(1)   Maintenance of the common elements is the responsibility of the association, except for any maintenance responsibility for limited common elements assigned to the unit owner by the declaration. The association shall provide for the maintenance, repair, and replacement of the condominium property for which it bears responsibility pursuant to the declaration of condominium.

 

That kind of clarifies it, doesn’t it?  The association shall provide for the maintenance, repair, and replacement of the condominium property for which it bears responsibility pursuant to the declaration of condominium.  Notice the word shall is used.  In simple terms, shall means must.  So there is no argument……if the declaration says the association is responsible, the association must repair it.

But suppose the association does not have money to make the repair?  Now what?  The association can certainly special assess right?  But suppose the docs place a limit on the amount of the special assessment or require a unit owner vote to approve a special assessment and the unit owners won’t vote in favor of it?  Now what can you do?

Of course you may be able to borrow money.  Florida’s not for profit statute allows condominiums to borrow money.  So, the condo is in the clear right?  Not so fast.  Suppose the condo docs require a vote of the owners in order for the condo to borrow money and the owners won’t vote in favor of a loan?

 

How can the condominium make the repairs it is required by law to make if it can’t assess or borrow?

So here is this attorney’s opinion.  I don’t care about any language in a declaration that prevents an association from passing an assessment in order to make mandatory repairs.  The board can and must pass the assessment in order to comply with their statutory obligation to repair and maintain the common property.

On the other hand, if the governing documents do not prevent an association from borrowing money, the association certainly can.  However……if the governing documents will not allow the association to borrow money unless a certain number of the owners approve, the association cannot borrow unless the owners vote to approve.  No bank will approve a loan if the governing documents require the owners to vote in order to borrow, and the vote has not been obtained.  Get legal advice if you need money and you feel tied up by your docs.

 

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ANOTHER NEW LAW:  HB 437 — FLAGS, TURFS AND BOATS

ANOTHER NEW LAW:  HB 437 — FLAGS, TURFS AND BOATS

ANOTHER NEW LAW:  HB 437

By Eric Glazer, Esq.

I can’t tell you how may fights I have been involved in regarding flags other than the U.S. flag flying above someone’s home and the fact that someone put down fake grass or stored a boat, that nobody can see, in their backyard.  Well, here’s a new statute that solves both of those problems:

Florida Statute 718.113

If any covenant, restriction, bylaw, rule, or requirement of an association prohibits a homeowner from displaying flags permitted under this paragraph, the homeowner may still display one portable, removable United States flag or official flag of the State of Florida in a respectful manner up to two of the following, and one portable, removable flags official flag, in a respectful manner, not 48 larger than 4 1/2 feet by 6 feet:, which represents

  1. The United States flag.
  2. The official flag of the State of Florida.
  3. A flag that represents the United States Army, Navy,  Air Force, Marine Corps, Space Force, or Coast Guard., or
  4. A POW-MIA flag.
  5. A first responder flag. A first responder flag may incorporate the design of any other flag permitted under this paragraph to form a combined flag. For purposes of this subsection, the term “first responder flag” means a flag that recognizes and honors the service of any of the following: a. Law enforcement officers as defined in s. 943.10(1).
  6. Firefighters as defined in s. 112.191(1).
  7. Paramedics or emergency medical technicians as those terms are defined in s. 112.1911(1).
  8. Correctional officers as defined in s. 943.10(2).
  9. 911 public safety telecommunicators as defined in s. 401.465(1).
  10. Advanced practice registered nurses, licensed practical nurses, or registered nurses as those terms are defined in s. 464.003.
  11. Persons participating in a statewide urban search and rescue program developed by the Division of Emergency Management under s. 252.35.
  12. Federal law enforcement officers as defined in 18 U.S.C. s. 115(c)(1), regardless of any covenants, restrictions, bylaws, rules, or requirements of the association.

In addition, in an HOA, the homeowner may erect a 20 foot flagpole on any portion of their property and fly the U.S. flag and any of the flags mentioned above.

Florida Statute 720.3045 now states:

Regardless of any covenants, restrictions, bylaws, rules, or requirements of an association, and unless prohibited by general law or local ordinance, an association may not restrict parcel  owners or their tenants from installing, displaying, or storing any items on a parcel which are not visible from the parcel’s frontage or an adjacent parcel, including, but not limited to, artificial turf, boats, flags, and recreational vehicles.

I’m getting ready for lots of fights regarding visibility of boats as boat owners will look to save the costs of monthly storage.

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COMMUNITY ASSOCIATION WEBSITES By Eric Glazer, Esq.

COMMUNITY ASSOCIATION WEBSITES By Eric Glazer, Esq.

COMMUNITY ASSOCIATION WEBSITES

By Eric Glazer, Esq.

As you all know by now, Florida condominiums having 150 or more units must have a website that only owners can access and which posts the official records of the association.  Here’s a little background as to how the law was passed.  When originally drafted, the law was only to apply to condominiums with 500 or more units.  That was ridiculous.  So, I flew up to Tallahassee and met with the then Speaker of the House and informed him that the law was a fake, inasmuch as less than one percent of all condominiums in the state contained 500 or more units.  I suggested 50 units.  The compromise was 150.

I never heard one person tell me this was a bad law.  In fact, it’s a great law.  It’s about transparency.  It takes the burden off of managers having to respond to requests for records.  It prevents lawsuits or arbitrations, as long as the website is kept up to date.

Just because the law requires condominiums of 150 units or more to have a website does not mean that condominiums of less than 150 units cannot have a website.  In fact, in this attorney’s opinion, if your condominium contains 50 units or more, you can and should have a website for the same reason that condominiums with 150 units should.

Think about how large some HOAs are.  Many contain well in excess of 500 homes and are sprawling mini cities.  You would think that those communities should be required to post their records on an official website as well.  But no.  HOAs are not required to have a website.  There is simply a hands off approach when it comes to HOAS.

Again, just because the law requires condominiums of 150 units or more to have a website does not mean that HOAs cannot have a website.  In fact, in this attorney’s opinion, if your HOA contains 50 homes or more, you can and should have a website for the same reason that condominiums with 150 units should.

This is one law the legislature should amend.  All communities, both condos, co-ops and HOAs with 50 or more units or homes should be required to have a community association website where the official records and notices of meetings are posted.  Bottom line…….it will make the residents less suspicious and happier.

Community associations, whether condominiums, co-ops, or HOAs, are responsible for providing transparency to their owners. One way to achieve this is through a community association website. In Florida, the state recognizes the importance of transparency in community associations and requires condominiums with 150 or more units to have an owners-only website that posts official records. However, this requirement should extend beyond just large condominiums.

Community associations of all sizes should consider having their website to give owners transparency. Even if a community does not meet the state-mandated requirement, having a website is still a good idea.

A website can provide owners with easy access to official records, notices of meetings, and other important information. It can also help reduce the burden on managers to respond to document requests. Additionally, it can prevent lawsuits or arbitrations if the website is kept up-to-date. It’s about more than just meeting legal requirements. It’s about providing owners with a sense of transparency and openness. This can build trust between the board, management, and owners and foster a happier community.

However, it’s important to note that the community association website should be more comprehensive than just the required information. It should also include commonly asked questions, how to apply to the association, how to pay fees, and other relevant information owners may need. This will help to make the website more user-friendly and informative for owners.

In conclusion, having a community association website is essential for transparency, no matter the size of the community. It can build trust and create a more positive living experience for all owners. The state of Florida has recognized the importance of transparency in condominiums, and it is time for all community associations to follow suit by establishing their websites with informative content.

I guess the Florida Legislature thought they did a great job to assure transparency in condominiums when they enacted bills in 2017 and 2018 [FS 718.111(12)(g)], that required condominium associations with more than 150 units to operate a website featuring all so-called “public documents”.

They would have done a great job — the bills were actually well intended – if there would be as well some sort of enforcement.

In the real world we are seeing lots of totally incomplete websites, only showing what board members and CAMs want the owners to see – and otherwise it’s business as usual.

The fights over record requests are keeping arbitrators and courts busy – and the attorneys are still smiling at their bank account statements.

If the legislators thought that they finally found a solution to end litigation about association records they were dead wrong.

Everybody knows that laws without enforcement are pretty useless and all these laws created each year are only laws for the rich, meaning the folks who have enough money to hire attorneys and fight for their rights, given to them by these kinds of laws, in district and appeals courts.

Wouldn’t that mean that all these laws, created year for year adding to the community association statutes, are only LAWS FOR THE  RICH?

Every other owner who might dare to mention at a board meeting that the board is violating statutes can still be told by the association attorney: “Sit down and shut up. You don’t have the money to sue the association!”

 

Read more industry articles on Florida HOA & Condo Blog – 

 

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Is There Liability for Dangerous Wild Animals in Your Community?

Is There Liability for Dangerous Wild Animals in Your Community?

Is There Liability for Dangerous Wild Animals in Your Community?

by JEFFREY REMBAUM, ESQ., KAYE BENDER REMBAUM

With the ever-increasing development in Florida, especially in South Florida, we are once again reminded that we live in close proximity to a number of native, exotic, invasive, and at times dangerous wild animals.

Tragically, and all too recently, in St. Lucie County an 85-year-old woman died while trying to rescue her dog from an alligator. Whether her community association will be held liable will largely depend upon what the association knew and when they knew it regarding the existence of alligators within the association’s property.

Simply put, if there is a foreseeable zone of risk, then the association’s members should be made aware of it. Phrased differently, where the association, acting by and through its board of directors, is aware or should reasonably be aware of a dangerous animal within association property, then there is a duty to act. Such action should minimally include notice to the entire community, and for those situations where reoccurrence is a likely possibility, then posting signs could be warranted, too.

What can and should happen when your community association is confronted with that unexpected wild animal that causes a disturbance or, even worse, the wild animal has become a source of imminent danger to the members of the association or their guests? Guidance is presented from Hanrahan v. Hometown America, LLC, 90 S.3d 915 (Fla. 4th DCA 2012), decided on June 20, 2012, by Florida’s Fourth District Court of Appeal. In this case, the personal representative of a deceased resident, Ms. Hanrahan (Hanrahan), sought damages for the negligent death of Mr. Hanrahan, who died from fire-ant bites sustained on the common areas of Pinelake Gardens and Estates, a mobile home park (Pinelake Gardens).

By way of background, Mr. Hanrahan was walking his dog in the common area of Pinelake Gardens known as the “Preserve.” Mr. Hanrahan claimed that he brushed up against a bush, at which point the fire ants gained access to his body. Mr. Hanrahan attempted to wash the fire ants off of his body but collapsed on the shower floor. He died two days later. During the trial, the Pinelake Gardens community manager testified that she was not aware of any resident in Pinelake Gardens being exposed to or attacked by fire ants on the premises, nor was she aware of any fire ants in the area of Pinelake Gardens where the incident allegedly occurred. She testified that Pinelake Gardens regularly contracted with an exterminator to spray insecticide, which included killing ants (not specifically fire ants). She further testified that maintenance employees would treat observed ant mounds with granules and would contact the exterminator if there was anything out of the ordinary observed.

The trial court ruled in favor of Pinelake Gardens. The trial court determined that Pinelake Gardens was not on sufficient notice of a fire-ant infestation at the area of the alleged incident, and therefore did not have a duty to Mr. Hanrahan to guard against the fire ants or otherwise take action in this situation. As a result, Hanrahan appealed. On appeal, Hanrahan claimed that the trial court improperly determined whether Pinelake Gardens could foresee the specific injury that actually occurred, instead of, as Hanrahan claimed, whether Pinelake Gardens’ conduct created a “foreseeable zone of risk.”

The general rule in regard to wild animals in Florida, as explained by the appellate court citing another case, Wamser v. City of St. Petersburg, 339 So.2d 244 (Fla. 2d DCA 1976), is that

…the law does not require the owner or possessor of land to anticipate the presence of, or guard an invitee against harm from, animals “ferare naturae” (which is a common law doctrine where wild animals are considered owned by no one specifically but by the people generally) unless such owner or possessor harbors such animals or has introduced wild animals to the premises which are not indigenous to the locality.

The Wamser case involved a shark attack, in which the city did not have any knowledge of prior shark attacks and therefore did not have any foreseeability of the possibility of shark attacks nor a duty to guard against shark attacks. As in Wamser, the appellate court in Hanrahan v. Hometown America, LLC, ruled that there was no evidence in the record to show Pinelake Gardens had any knowledge of a “ferae naturae” attack in the alleged area. The appellate court held that the presence of the fire ants was not caused by any act of Pinelake Gardens and that Pinelake Gardens did not harbor or introduce them. Furthermore, Pinelake Gardens regularly attempted, by maintenance staff and exterminators, to treat the ant mounds and other manifestations of fire ants. To add a further caveat to its ruling, the appellate court quoted from another fire-ant case, State of Texas, Nicholson v. Smith, 986 S.W,2d 54 (Tex. App. 1999), in which it was stated:

…we do not say a landowner can never be negligent with regard to the indigenous wild animals found on its property. A premises owner could be negligent with regard to wild animals found in artificial structures or places where they are not normally found; that is, stores, hotels, apartment houses, or billboards, if the landowner knows or should know of the unreasonable risk of harm posed by an animal on its premises and cannot expect patrons to realize the danger or guard against it. [emphasis added]

Thus, in the end, the appellate court ruled that there was no evidence that Pinelake Gardens knew or should have known of the unreasonable risk of harm posed by the fire ants. Even though the Hanrahan case concerned fire ants, the case could be applied by analogy to any number of wild animals that you could encounter in your community association, including, without limitation, alligators.

When it comes to injuries caused by wild animals, the board of directors should examine whether there is a foreseeable zone of danger. The question is not whether an injury occurred (as strict liability does not exist), but rather was it foreseeable that an injury could occur? If so, then the board has a duty to act. Remember, the basic rule is that if the association is aware of a dangerous animal or if it is foreseeable that a dangerous wild animal could be within the lands governed by the association, then the association has a duty to act. Importantly, please be certain to discuss the situation with the association’s legal counsel for proper guidance.

 Jeffrey Rembaum, Esq. of Kaye, Bender, Rembaum attorneys at law, legal practice consists of representation of condominium, homeowner, 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.
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Update: ‘Veto SB 360, Governor DeSantis. It makes residents in older condo buildings less safe.’

Update: ‘Veto SB 360, Governor DeSantis. It makes residents in older condo buildings less safe.’

UPDATE:

So Governor DeSantis signed SB 360 into law which effectively eviscerates many property owners’ rights to pursue contractors and developers for latent defects. A latent defect is one which is not readily apparent to the naked eye which is often the case with concrete restoration and roofing projects. This is a slap in the face to the millions of Floridians struggling right now to pay large special assessments to fund these projects. Why would people who profess to care about the safety of older multifamily buildings vote to pass SB 360? The developers’ lobby certainly achieved their goals. Too bad the people who will now pick up the tab for defective construction are the ones least able to pay for it-Florida homeowners.

 

‘Veto SB 360, Governor DeSantis. It makes residents in older condo buildings less safe.’

Becker Shareholder Donna DiMaggio Berger, Esq’s op-ed in Miami Herald explores how the Florida Legislature passed a bill that will make it harder for you to hold contractors accountable for defective work. Why she says the Governor should veto this bill right now. Read the entire article below.

…………………………………………………………………………………

Last year, the Florida Legislature passed SB 4-D with the stated purpose of safeguarding the millions of Floridians living in older multifamily buildings. Known as the Condo Safety Law, SB 4-D requires periodic engineering inspections for buildings three stories and higher and mandates that associations reserve funds to pay for ongoing maintenance and repair projects.

How then, did the Florida Legislature this session pass SB 360, a bill that extinguishes homeowner rights and destroys developer/contractor accountability for the work they perform?

Certainly our legislators must understand that thousands of Floridians are struggling to pay massive special assessments to fund mandated maintenance and repair projects? Why would those same legislators determine that Floridians should not be able to receive the value of those multimillion-dollar projects? It is hoped that Gov. DeSantis will understand that SB 360 undermines both the physical and fiscal security of millions of Floridians.

Safe buildings start with the developers who build them and the contractors who repair them. It’s a simple concept. If the governor signs SB 360 into law or allows it to pass into law without his signature, nearly every Florida community association, at some point, will feel the following impacts:

  • The deadline by which a community association must take legal action against contractors and developers for latent or hidden construction defects will be shortened from 10 years to seven. Ultimately, this will compromise homeowner warranty protection because latent defects are defects that cannot be seen. This includes foundation issues, most structural defects, and leaks behind stucco and under roofs, for both new construction and renovations.

Many condominiums and cooperatives in Florida are moving forward with concrete renovations and repairs, roof replacements and other work deemed necessary in their engineering reports. SB 360 will prevent associations from holding negligent contractors liable for their defective work product and poor performance.

  • Developers and contractors could maintain control of an association long enough to run out the clock on the applicable statutes of limitations. Currently, the deadline for a developer to turn over control of a condominium association to the owners is seven years, at the latest. Even under the current 10-year statute of repose, boards must move quickly to preserve their associations’ rights. Under SB 360’s new shortened seven-year statute of repose, it would be virtually impossible to protect the association’s rights against a developer who decides to retain control of the association for up to seven years since the statutes only empower associations to bring those causes of action after the community is turned over from the developer to the owners.

Under SB 360’s new shortened seven-year statute of repose, it would be virtually impossible to protect the association’s rights against a developer who decides to retain control of the association for up to seven years since the statutes only empower associations to bring those causes of action after the community is turned over from the developer to the owners.

  • The new triggering action to start the clock running on the statutes of limitation would no longer be the issuance of a final certificate of occupancy and “actual possession by the owner” but instead will be the issuance of a temporary certificate of occupancy. A temporary certificate of occupancy is issued many months or even years before an owner closes and takes possession of the home. Naturally, an owner living in a unit is in a better position to notice and report construction defects than someone who has not yet closed and moved in.
  • Developers and contractors would no longer be required to meet the minimum standards imposed by The Florida Building Code when an owner brings a private cause of action.

Unfortunately, SB 360 has been sent to the governor. It is now up to him to determine whether this new law making it more difficult to hold developers and contractors accountable makes sense with the heightened safety standards imposed on community associations.

If SB 360 becomes law, the net effect will be the imposition of a massive financial burden on the people who are least able to afford it — individual association members.

Donna DiMaggio Berger is a shareholder in Becker’s Community Association Practice in Fort Lauderdale, Florida and is a member of the College of Community Association Lawyers.

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PENNY WISE POUND FOOLISH By Eric Glazer, Esq.

PENNY WISE POUND FOOLISH By Eric Glazer, Esq.

PENNY WISE POUND FOOLISH

By Eric Glazer, Esq.

In light of the new laws requiring mandatory inspections, mandatory repairs and mandatory reserve studies, some associations are looking to cut back and save money. 

That’s not a bad idea; unless you’re cutting back on your legal counsel reviewing all of the contracts provided to you by those engineers, architects or general contractors who perform any of these inspections or repairs.

I’m starting to see more of this and it’s an alarming trend.  It boggles my mind that an association would spend millions of dollars on a contract for repair of their property, but won’t spend a few hours on their attorney reviewing that contract first.  No question in my mind that the failure of the Board to have that contract reviewed by counsel before signing, is a breach of their fiduciary duty to the unit owners they represent.

I teach a class called “Before You Sign That Contract.”  It talks about so many ways in which the association can suffer financial loss by having the wrong clauses in the contract or by failing to insert certain clauses into the contract.  Once sentence can potentially cost the association hundreds of thousands of dollars.  And you chose to cheap out on a few hours of attorney’s time?  Really?

Even smaller contracts need to be reviewed.  If the association does not have the proper remedies in the contract for the contractor’s breach, the situation can turn into a long lasting nightmare where the association will never be made whole.  And…….the association will have to spend its own attorney’s fees now to correct the problem with no chance of recovering them later on.

We are about to enter into a historic time here in Florida where these types of contracts will be flying off the shelves. 

They will be everywhere, in every condominium.  Be careful.  If you didn’t hear me the first time, I said BE CAREFUL AND DON’T BE CHEAP.  GET LEGAL HELP BEFORE SIGNING.

DON’T COME TO ME AFTER YOU SIGNED A CONTRACT AND SAY “HEY ERIC…OUR ASSOCIATION SIGNED THIS MULTI MILLION DOLLAR CONTRACT.  CAN YOU NOW GET US OUT OF IT?

THE ANSWER IS OFTEN TIMES……NO I CANNOT.  YOU SHOULD HAVE ASKED ME TO LOOK AT IT BEFORE SIGNING IT.

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Apr 19 Free Lunch & Learn: How To Select A Contractor. | Sponsored by KBRLegal

Apr 19 Free Lunch & Learn: How To Select A Contractor. | Sponsored by KBRLegal

This one-hour class will guide association members, CAMs, and building managers through the process of how to select a contractor for an upcoming commercial project. It starts with knowing your stakeholder, creating an RFP, hosting a pre-bid meeting, evaluating the quotes, and ends with making your contractor recommendation.

Wednesday, April 19, 2023

Meet the sponsors at 11:30 a.m.

Class begins at 12 p.m.

 

Capriccio Ristorante

2424 N University Drive, Pembroke Pines, FL 33024

1 Credit OPP/ELE

Course #9631934 | Provider #0007984

 

Register on Eventbrite by April 18. Space is limited.

Lunch is generously sponsored by: SFPMA Members.

Bashor & Legendre, LLP

Centennial Bank

Kaye Bender Rembaum

M.A. Construction Group

Rainbow Roofing Solutions

United Claims Specialists

Wayne Automatic Fire Sprinklers, Inc.

WeDry USA

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Presented by Castle Group Season 4, Episode 7 of ‘Association Leadership’ Florida’a Newest Insurance Laws

Presented by Castle Group Season 4, Episode 7 of ‘Association Leadership’ Florida’a Newest Insurance Laws

Presented by Castle Group

Season 4, Episode 7 of ‘Association Leadership’

Florida’a Newest Insurance Laws

Wednesday, April 19, 2023 | 12 Noon to 1:00pm Est.

Webinar live via Zoom

REGISTER NOW

Castle Group invites you to join us for Season 4, Episode 7 of Association Leadership. This week’s discussion is on Florida’s newest insurance laws- how they could affect your association, and the proposed legislative changes to the milestone, structural integrity, and reserve study requirements.
Castle Group CFO Craig Vaughan will host the live webinar. He will be joined by Attorneys Jeffrey A. Rembaum & Michael S. Bender- Kaye Bender Rembaum, P.L.- Board Certified Specialists in Condominium and Planned Development Law.
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