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Release of Liability and Hold Harmless Agreements by JEFFREY REMBAUM, ESQ., KAYE BENDER REMBAUM

Release of Liability and Hold Harmless Agreements by JEFFREY REMBAUM, ESQ., KAYE BENDER REMBAUM

Release of Liability and Hold Harmless Agreements

by JEFFREY REMBAUM, ESQ., KAYE BENDER REMBAUM

If Your Association Requires One, Then You Must Read This…

Many communities offer a host of amenities for their residents and guests to enjoy, such as clubhouses, fitness centers, playgrounds, swimming pools, tot lots, tennis courts, etc. One of the upsides to providing such amenities is that the residents and their guests have a variety of activities to choose from, which enhances the quality of life within the community. However, one of the potential significant downsides to offering such benefits is that the association often incurs liability if a resident or guest is injured while using one of the amenities.

Accordingly, it has become commonplace for associations to require that residents and guests sign a document that releases the association from liability and holds the association harmless when a resident or guest uses the amenities. Although the title of the document may vary—“Hold Harmless,” “Indemnification Agreement,” “Release of Liability,” or “Waiver and Release”—there is usually language included within the document along the lines of the following:

“I, Mr. Owner, on my own behalf and on behalf of all other occupants and guests to my home, for and in consideration for use of the association’s facilities, equipment, etc. hereby release and hold harmless the association, its members, officers, directors, agents, etc. from any and all liability which may arise out of or in connection with my participation or use of the foregoing facilities, equipment, etc.”

This language is often referred to as an “exculpatory clause,” which is a clause that is designed to relieve a party from blame or liability. Such language has traditionally served to help prevent an association’s liability to an owner or guest when he or she is injured while using the amenities. It may have been a while since anyone has taken a good look at the specific language included in the association’s release, and it may be taken for granted that such language will automatically protect the association from liability. Many such form documents do not provide the protection you might think they should. A recent Florida appellate court case dealing with such exculpatory clauses highlights this potential issue and offers pause.

Specifically, The Estate of Nicholas Adam Blakely, By and Through Michele Wilson, as Personal Representative v. Stetson University, Inc., WL 17997526 (Fla. 5th DCA 2022), involved the tragic death of a young man who played football at Stetson University. As described in the written appellate opinion, the young man pulled himself out of an afternoon football practice complaining to an assistant athletic trainer that he felt dizzy and that his chest felt tight. Although the trainers continued to monitor his symptoms on the sidelines, after approximately 45 minutes the young man collapsed. Thereafter, university employees attempted various emergency medical procedures in an unsuccessful effort to revive him. The young man was transported to the hospital where, sadly, he died.

The trial court found that the two identical releases signed by the young man were sufficiently clear to bar claims brought against the university arising from his death after participating in the football practice. On appeal, however, one of the arguments focused on whether the language in the releases that the young man signed were sufficient to be enforceable. The appellate court determined it was not. Although the entirety of the written releases are unable to be reproduced here, the particular language that the court focused on is set out below. Specifically, the appellate court placed emphasis on the following:

I understand that the dangers and risks of playing or participating/practicing may include, but are not limited to: death…Because of the dangers and risks involved in participating in intercollegiate athletics, I recognize the importance of following the Coaches and Sports Medicine staff instructions regarding playing techniques, conditioning, rehabilitation/treatment recommendations and team rules, etc. and agree to obey such instructions…I hereby assume all risks associated with participation and agree to hold Stetson University…from any and all liability…of any kind or nature which may arise by or in connection with my participation in any activities related to the Stetson University athletic program. The terms hereof shall serve as a release and assumption of risk for myself, my heirs, estate, executor, administrator, assignees and for all members of  my family. The terms hereof shall serve as a complete release and waiver of liability for myself, my heirs, estate, executor, administrator, assignees, and for all members of my family.

 

On its face, it sounds complete. But is it? In its analysis of the language included in the releases, the appellate court began by expressing that

[A]n exculpatory clause purports to deny an injured party the right to recover damages from a person negligently causing his injury. They are disfavored in the law because they relieve one party of the obligation to use due care and shift the risk of injury to the party who is probably least equipped to take the necessary precautions to avoid the injury and bear the risk of loss. Such claims are strictly construed against the party seeking to be relieved of liability. Thus, exculpatory clauses are enforceable only where and to the extent that the intention to be relieved from liability is made clear and unequivocal. The wording must be clear and understandable that an ordinary and knowledgeable person will know what he is contracting away (quoting UCF Athletics Ass’n, v Plancher, 121 So. 3d 1097, 1101 [Fla. 5th DCA 2013]).

 

Unlike the trial court, the appellate court took issue with the language contained within the releases because the release forms

  1. failed to expressly inform the young man that he was contracting away his rights to sue the university for its own negligence,
  2. used language that could reasonably lead one to believe that the university would be supervising and training [him] properly such that the young man was only being asked to sign the exculpatory clause to cover injuries inherent in a sport, and
  3. used language suggesting that the terms of the releases were for the young man’s benefit.

 

Accordingly, the appellate court determined that the foregoing supported a determination that the releases were not clear and unambiguous. So, what does the appellate court’s decision mean for exculpatory clauses as related to an association’s release? It means that associations need to review the language in such exculpatory clauses with counsel to assist in aligning the language with the thinking of the court. For example:

  1. Is the language in the release clear, unambiguous, and written in such a way that an ordinary and knowledgeable person would know that he or she is contracting away his or her right to sue the association if an injury occurs?
  2. Is the language in the release free from any indication whatsoever that training and/or supervision is being provided by the association to avoid a mistaken belief by the owner or guest that he or she is merely signing away his or her right to sue for injuries inherent in a particular activity?
  3. Is it unequivocally clear that the individual is giving up all rights to litigate against the association in regard to any accident that may occur, even if the association was negligent?
  4. Are there terms in the release that would make it seem as though the release is for the benefit of the homeowner or guest and not the association?
    If you are in doubt as to the exculpatory language included in your association’s release, do not wait until a homeowner or guest is injured, or possibly worse, to discover that the language is not appropriate for protecting the association from liability. In light of this most recent opinion, you should discuss with your association’s legal counsel when there would be a good opportunity to review and amend such release of liability and hold harmless agreements.
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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As a homeowner, it is important to know Common Property Damage Claims. by Joseph Maus

As a homeowner, it is important to know Common Property Damage Claims. by Joseph Maus

  • Posted: Apr 02, 2023
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Common Property Damage Claims. As a homeowner, it is important to know

A home or office building is the most important purchase most of us will make during our lifetime. Most of us buy insurance coverage – windstorm, liability, flood, homeowners, and business interruption – to protect our homes and businesses. Yet, today’s insurance policies are lengthy, complex contracts full of exceptions, exclusions, deductibles, and conditions that make the policy difficult to read, and sometimes even more difficult to recover from for your damage. When you call the Maus Law Firm, a top Fort Lauderdale property damage lawyer will handle property damage claims.

Disagreeing with Your Insurance Claim for Property Damage

You have four options if you disagree with the amount the insurance company is offering you for your damage:

Most insurance companies create entire TV marketing campaigns designed to say that you’re part of the insurance company’s “family”. However, the reality of the insurance business is that insurance companies exist to make money. That means that insurance company needs to minimize the amount of claims it pays out; meanwhile, maximizing the premiums that it collects.

When an insurance company doesn’t offer to pay you the full (or fair) amount of your property damage, you need to be prepared to fight. While many homeowners are hesitant to go to court – fearful of a lengthy or expensive legal battle against a big-name insurer – settling for less than your claim was worth can end up costing you more in the long-term. The repairs your home needed can continue to pile up, lowering the value of your property. Hiring the best Fort Lauderdale property damage lawyer you can find will save you the headache later.

The Process for Property Damage Claims & Florida Property Owner’s Obligations

When making insurance claims for property damage, it is helpful to know how the process typically unfolds. Our Fort Lauderdale property damage lawyer knows that while there are many potential scenarios, the property owner should first understand their own obligations under the insurance policy. Second, the property owner should understand the reasons for the insurance company’s denial of their claim.

Any property insurance policy will place some obligations on the property owner when they make a claim for property loss. These obligations will differ from policy to policy, but the following are several of the most common requirements.

  • Notice of Loss: The property owner is generally required to provide notice of the loss to the carrier promptly. The policy should provide a specific deadline. Failure to meet this deadline could result in the claim being barred.
  • Protect Against Further Damage: The property owner is also required to take reasonable steps to protect the property from further damage. For example, if the roof of a property is damaged by a hurricane, the property owner must attempt to place temporary covering to protect the interior. However, the exact conduct that is considered “reasonable steps” will often be subject to interpretation.
  • Proof of Loss: After making a claim, the property owner will need to submit a proof of loss statement. This statement is generally signed under penalty of perjury and itemizes the damages. A typical deadline for the proof of loss is 60 days after a request by the insurance carrier.

How a Fort Lauderdale Property Damage Lawyer Can Help You with Your Homeowner’s Insurance Claim

Unfortunately, even if you have paid your homeowners’ insurance premiums on time for decades, this does not guarantee that your insurance company will treat you fairly if you need to file a claim. Bad-faith insurance claim denials are common, and homeowners can run into various other issues with their property damage claims as well. As a result, if you need to file a homeowners’ insurance claim, it is a good idea to hire an attorney. Here are just a few examples of the ways an experienced Fort Lauderdale property damage lawyer like Joseph Maus can help:

1. Determining If Your Claim is Covered

Before you devote the time, energy and resources to pursuing a property damage claim, you first need to determine if your claim is covered. An experienced Fort Lauderdale property damage lawyer will be able to review your homeowners’ insurance policy and assess the damage to your home in order to determine if your insurance company is liable.

2. Dealing with Your Insurance Company On Your Behalf

If you have a claim, your attorney will be able to deal with your insurance company on your behalf until your claim has been fully and finally resolved. This important for a few different reasons: (i) Florida’s insurance laws are complicated, and asserting your legal rights can be difficult; (ii) in some cases, there will be a legitimate dispute as to whether a homeowners’ insurance policy applies; and, (iii) successfully pursuing a homeowners’ insurance claim for significant property damage takes time, and you will need someone to handle your claim while you focus on work and your day-to-day life.

3. Overcoming Bad-Faith Coverage Delays and Denials

As we mentioned above, insurance companies routinely deny policyholders’ property damage claims in bad faith. If your insurance company is not handling your claim appropriately, you may need your attorney to take legal action on your behalf. If you have a claim for insurance bad faith, then you can seek compensation above and beyond the amount of coverage to which you are entitled under your policy.

Common Claims for Property Damage in Fort Lauderdale

When can you file a property damage claim? As a homeowner, it is important to know when you are entitled to insurance coverage and when you may need to come out of pocket to cover repairs to your home. With this in mind, here are some examples of common property damage claims in Fort Lauderdale:

  • Storm Damage Claims – While homeowners’ insurance policies do not cover flood damage caused by hurricanes and tropical storms, they do cover other types of storm damage.
  • Tree Damage Claims – If a tree in your yard fell on your home, your homeowners’ insurance policy should provide coverage.
  • Water Damage Claims – Water damage caused by leaking pipes, HVAC system failures and other similar types of issues should be covered under your homeowners’ insurance policy.
  • Fire Damage Claims – Fires from lightning strikes and other causes are generally covered as well, and your policy should cover your home as well as its contents.
  • Mold Claims – Mold claims are often disputed; but, if your house has mold from a “covered peril,” then the costs of remediation should be covered.
  • Theft Claims – If your home has been burglarized, your homeowners’ insurance policy may provide coverage for any damage that occurred during the break-in in addition to the value of your stolen property.

Here are 6 common property damage claims;

#1 Storm Damage, #2 Tree Damage, #3 Water Damage., #4 Fire Damage, #5 Mold, #6 Theft.

Where do you turn to get help?

The Maus Law Firm has been successfully handling insurance-related claims since 1993. We will competently and aggressively represent you in your homeowner property damage insurance claim, or commercial business insurance claim.

Call 954-784-6310 or

visit our website now, for a free consultation.

SFPMA & Members are ready to Handle Storm Damage & Claims for Condo and HOA Properties!

Trusted Members are; Legal Firms, Public Adjusters, Roofing, Engineering & Restoration Service Companies that work with you on Solutions to Storm Related Damage.

This is a Division of SFPMA – http://FloridaAdjusting.com

 

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“Notice of Board Meeting Must Include Agenda” by Becker

“Notice of Board Meeting Must Include Agenda” by Becker

Q: The board of directors of my condominium association recently voted on an issue that was not on the posted agenda. Following the meeting, the board realized that this was an error and there is a question as to how to correct the mistake. Should the board address this at the next board meeting and vote to undo what they voted on? (S.G., via e-mail)

A: Section 718 112(2)(c) of the Florida Condominium Act requires that notice of board meetings be posted on the condominium property at least 48 hours in advance (certain notices must be posted and sent to all owners 14 days in advance). The law goes on to say that the posed notice specifically must identify all agenda items. The public policy is that if owners know what the board will be voting on, they can decide if they would like to come to the meeting to observe or offer input.

The statute goes on to provide that an item not included on the notice may be taken up on an “emergency” basis by a vote of at least a majority plus one of the board members. Any emergency action so taken must be noticed and ratified at the next regular board meeting.

It is not suggested that the issue taken up was an emergency, but rather it was just a mistake. While there is no way to go back in time and cure the mistake, the most appropriate cure would be for the association to add the issue on the agenda at the next board meeting and have the board properly address the issue and revote on the motion.

Interestingly, for homeowners’ associations, while there is a requirement that notice of board meetings generally be posted at a conspicuous place in the community at least 48 hours in advance, there is no requirement that an agenda for the meeting must be posted. However, given that the Homeowners’ Association Act, Chapter 720, Florida Statutes, provides that members have the right to speak on all “designated items,” posting an agenda is a “best practice” and an agenda should be available at the meeting to confirm what issues owners may address.

Q: What does “plurality of the votes” mean when there are five seats up for election in a homeowners’ association? (J.Y., via e-mail)

A: Plurality means that the candidates who get the most votes win, whether they received votes from a majority of those who cast ballots or not.

Q: From what I understand, Florida law does not require directors to reside in the community, but our condominium documents do require residency within the community to be eligible to serve on the board of directors. Which would control? (S.F., via e-mail)

A: Florida law controls over your condominium documents in this instance, and the residency requirement in your condominium documents are not enforceable as being contrary to Florida law.

Section 718.112(2)(d)4 of the Florida Condominium Act states that every unit owner has the right to serve on the board. There are also certain limitations on board eligibility within the Act itself. For example, certain convicted felons are ineligible for board service. Certain financial defaults to the association can also disqualify a person from running for or serving on the board.

Other than the criteria for ineligibility set forth in the Act, limitations on the right to serve on the board are not legally valid. The Division of Florida Condominiums, Timeshares, and Mobile Homes, the state agency which has specified regulatory oversight of condominiums, has also ruled that “residency requirements” for board service contained in association bylaws are invalid. However, term limits contained in bylaws are valid in condominiums.

Joe Adams is an attorney with Becker & Poliakoff, P.A., Fort Myers. Send questions to Joe Adams by e-mail to jadams@beckerlawyers.com. Past editions may be viewed at floridacondohoalawblog.com.

 

Florida Legislature Considering Bills Proposing Changes to Condo Safety Reforms, Construction Defect Lawsuits

Florida Legislature Considering Bills Proposing Changes to Condo Safety Reforms, Construction Defect Lawsuits

Florida Legislature Considering Bills Proposing Changes to Condo Safety Reforms, Construction Defect Lawsuits

As the 2023 Florida legislative session gets underway, there are several bills impacting associations and real estate

Senate Bill 154 and House Bill 1395

Perhaps the most important of these are Senate Bill 154 and House Bill 1395, which deal with issues such as inspections and condominium association financial reserves that were addressed in the condo safety reform law that was passed last May with the adoption of Senate Bill 4D during a special legislative session. Under the new law, inspections are required for buildings that have been occupied for 30 years — or 25 years if they are within three miles of a coastline. After these initial inspections, the buildings will have to go through the process again every 10 years.

Flalegislature-300x169If adopted, the new bills could result in changes to the time by which buildings, including those within three miles of a coastline, will have to be inspected. The two bills include different timeframes by which the initial milestone inspection may have to be performed (e.g., SB 154 triggering all such inspections at 30 years with discretion for local officials and authorities having jurisdiction to compel some at 25 years depending on “local circumstances, including environmental conditions such proximity to salt water”; or HB 1395 requiring the initial inspections at 25 years for all buildings regardless of proximity to salt water).

 

SB 154 also includes provisions that would allow local officials to extend inspection deadlines if building owners have entered into contracts with architects or engineers but the inspections cannot be finished in time.

HB 1395 further proposes to increase the types of professionals that may perform phase 1 of the milestone inspections from architects and engineers to also include general contractors licensed under Chapter 489, Florida Statutes, with at least five years of experience in building/constructing threshold buildings, or as a building code administrator or licensed building code inspector.

The bills also include changes to portions of the statutes governing the financial reserves studies and requirements that were implemented under last year’s law. Some of the changes provided in SB 154 include clarification as to which building components must be included as part of the required reserve funding. It would also allow reserve studies to “recommend that reserves do not need to be maintained for any item for which an estimate of useful life and an estimate of replacement cost or deferred maintenance expense cannot be determined.” The bill’s sponsor says that provision could apply to building foundations.

HB 1395 includes different proposed changes pertaining to the structural integrity reserve items, such as providing for modified deadlines to the December 31, 2024, deadline established under last year’s reforms.

These are just a sampling of the various changes being considered by the legislature this session. As is usually the case with the legislative process, the provisions of SB 154 and HB 1395 will likely undergo various changes and may become mirror images of each other via lawmakers’ negotiations resulting in a final version that may be voted into law. Condominium association stakeholders should keep an eye on these bills given that their adoption by the legislature could surely result in significant changes to the monumental laws adopted last year affecting condominium associations in Florida.

House Bill 85

The legislature is also considering changes to the state’s statute of repose for construction defect lawsuits, which is used to determine how long a party has to file a claim for latent construction defects after a structure or improvement has been completed.

Currently, the state’s 10-year period of repose starts to run from the latest of these four events: 1) the date of actual possession by the owner, 2) the date of the issuance of a certificate of occupancy, 3) the date of abandonment of construction if not completed, or 4) the date of completion of the contract or termination of the contract between the professional engineer, registered architect, or licensed contractor and his or her employer. After the 10-year period expires, a claim for latent defects can no longer be brought.

If adopted, House Bill 85 would revise the triggering events for the period of repose for suits brought for latent construction defects to the earliest of: 1) the issuance of a temporary certificate of occupancy, 2) the date of the issuance of a certificate of occupancy, 3) or the date of issuance of a certificate of completion, or 4) the date of abandonment if construction is not completed.

The repose period would start to run seven years from the earliest of the foregoing four events. These changes, if adopted, could have significant changes to the time frame within which an association may assert a claim against parties responsible for construction defects.

As the legislative session unfolds and reaches its conclusion on May 5th, our firm’s attorneys will continue to monitor these and other bills impacting the state’s community associations and real estate industry.

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A FEW BIG CHANGES IN THE LAW By Eric Glazer, Esq.

A FEW BIG CHANGES IN THE LAW By Eric Glazer, Esq.

A FEW BIG CHANGES IN THE LAW

By Eric Glazer, Esq.

Believe it or not, it’s getting harder to sue someone or to sue a business in the State of Florida.

First, it’s more risky now to sue your insurance company.  The typical case that comes to mind is the one where a condominium association sues its own insurance company for failing to pay for roof damage because the insurance company does not believe the storm caused all that damage.  Until now, there was no risk for the condominium association.  The attorney took the case on a contingency and, if the association won the case the association would be entitled to an award of attorney’s fees against the insurance company.  And, even if the association lost, the association did not have to pay attorney’s fees to the lawyers for the insurance company.  In other words, the risk of paying attorney’s fees only ran one way.  No longer.  Now the association has no right to collect attorney’s fees against their insurer even if the case is settled or won.  The association bears the risk of not having their fees paid by their carrier which should ultimately result in a smaller recovery.

Perhaps the biggest change to the law since I’m in practice went into effect last week.  The statute of limitations regarding negligence actions went from four (4) years to two (2) years.  That is a bombshell.

The law is primarily intended to go after personal injury lawyers and prevent personal injury cases from winding up in the courtroom.  From a condominium and HOA perspective the change in the law will also have major effects.  For example, all claims for damages to condominium or HOA property caused by someone else now have to be filed in two years and not four.  This could be damage caused by contractors the association hire, or unit owners who live or rent on the property.

There are some other bills of interest that may pass during the legislative session and if they do, I’ll let you know.

 

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NAVIGATING THE TWISTS & TURNS FOR NEW BOARD MEMBERS

NAVIGATING THE TWISTS & TURNS FOR NEW BOARD MEMBERS

  • Posted: Mar 08, 2023
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   New to the Board or Thinking about Elections and running for a Board Position?

You’re now on the Board. Congratulations! And Thank You! You have now become a board member of your association. Serving on the board as a volunteer is important work and we want to be the first to let you know we appreciate your willingness.

Probably the most important thing to realize is that by becoming a board member you now have the awesome responsibility to think about the welfare of the entire association, distinct from the needs and desires of any single owner including yourself. This is not easy, but it is extremely important.

Being on the Board of Directors is important for a variety of reasons. Most importantly you will be able to make a positive and direct impact on the future direction of your community and hopefully a positive impact on the value of your investment and your home. As an increasing number of buyers are evaluating the features of living in a condominium there is more awareness of how value is created and maintained in a homeowner’s association. It is more than square footage and number of bedrooms in the living space. The value of your home is directly affected also by the quality of common area maintenance of the amenities, the enforcement of the rules and regulations, the adequacy of reserve funds, and the community spirit.

Every owner should serve on the Board of Directors at some time during their ownership. As they do they will gain a better understanding and appreciation for the role of the Board. We appreciate your willingness to serve on this board. We look forward to a very productive future together.

Since your prior Association Board made a decision to go with professional property management company they are there to help. You are partners together in managing the affairs of your association. They are able to provide guidance and direction on issues facing the association. The issues you face, for the most part, are not new to them.

SFPMA is here to support you as you volunteer for the association and offer you information making your job easier. Read Articles on our website learn and ask questions.

 

   The “Governing Documents” – What are they, are they important?

The “governing documents” are critically important. As a new Board member, you actually should find a copy and review them, if you haven’t already before now. You were likely given a copy when you purchased. The governing documents consist primarily of two types: the bylaws, and the Covenants, Conditions and Restrictions, also known as “C.C. & R’s. Additionally, the following may be considered part of the governing documents may also include the Articles of Incorporation, and the Condominium Plan. But primarily you will mostly need to be familiar with the By-laws and the C.C. & R’s. These documents are not good bedtime reading unless you are wanting to fall asleep. While you should look at the entire documents, you should especially focus in the By-laws on the sections pertaining to the Board, and also the requirements pertaining to meetings. In the C.C. & R’s, the important sections will pertain to maintenance responsibility and financial management. However, we urge you to find the time with sufficient coffee to review the entire document.

Also, the other information that you may want to become familiar with is the Florida state law, Read the “Statutes 718 – CONDOMINIUMS” and “Statutes 720 HOMEOWNERS’ ASSOCIATIONS”. A great web-site, OnlineSunshine.com is an excellent resource.

 

   What are the Board Positions? What does each Board member do?

Homeowner association boards that operate in effective and healthy ways for the benefit of their associations operate with every Board member playing a distinct and active role relating to a specific area of responsibility. Each board member should be the point person on their given area of responsibility, so that there is no potential of confusion communicated to third parties, such as the management company or other association vendors.

Generally those positions are: President, Vice-President, Treasurer, Secretary, and Director-at-Large. These are typical board positions for a five member board which is most common.

Some by-laws provide for a three member board, in which case some roles have to combine into one. Read the Governing Documents and the Bi-Laws for your Community.

The President

• Facilitates the process of each Board finding their specific role on the board.
• Allows the other Board members to fulfill their role.
• Sets time/place for meetings and Chairs the board meetings and annual meeting.
• Prepares the Board meeting agenda
• Leads the Board with the same voting power as any other board member.

May represent the association or board to third parties, such as the management company. In those cases, the President should always seek to speak for the majority of the Board, not just his or her own thoughts on an issue.

The President may NOT unilaterally speak for the board, but must always be the “voice” of the board.

Qualities that would be helpful for the President: manager, leader, able to delegate, speaks well, organizer.

 

The Vice-President

Assumes the duties of President as needed when the President is unavailable. Available for special tasks as needed, such as architectural issues, internal dispute resolution, community building efforts, or landscaping.

Maintenance Liaison. A Maintenance Liaison would coordinate with the management company representative on issues that may require board interaction between meetings. This person could speak for the board on maintenance issues between meetings. This may mean that this board member would need to poll board members on a particular decision that could not wait until a meeting can occur.

Qualities that would be helpful for the Vice- President: same as President, willingness to learn and grow into the role of President manager, leader, able to delegate, speaks well, organizer.

 

The Secretary

• Records the minutes of all meetings, prepares them for approval by the Board, and arranges for distribution to the owners and the Association Manager.

• Prepares the Notice of the meeting and Agenda and posts it on the property, so that owners are aware of the meeting and have an opportunity to attend.

• Maintains a record of all previous minutes in a “Minutes” book

Qualities that would be helpful for the Secretary: comfortable on a computer and word programs, able to prepare notices and minutes for distribution. Short hand is not required.

 

The Treasurer

• Primarily responsible for the financial affairs of the association.
• Receives and reviews weekly payables, signs checks and mails to vendors.
• Receive the reconciliation’s and copy of reserve statements as they are processed.
• Responsible to safely invest the reserve funds according to the direction of the board, and transfer to the operating account funds as they are needed for reserve projects.
• Reviews monthly financial reports
• The link between the Board and the management company on financial issues
• Coordinates transfers into and out of the reserve account.
• Need to be aware of and understand the reserve study.

Qualities that would be helpful for the Treasurer: able to read and understand basic financial concepts. It is possible to be overqualified for this role for some people who have been involved professional in high level accounting positions as a CFO or controller. Association finances are fairly basic and involve a great deal of common sense. A person who balances their own checkbook is likely able to learn what is necessary.

The Member-at-Large – available for special projects, subject to the direction of the President. The director-at-large may serve as the maintenance liaison.

Member– At-Large: Same as Vice President, perhaps with background or knowledge of maintenance would be helpful.

NEXT, NOW THAT THE OFFICERS ARE DETERMINED:

  1. Notify your manager of the names and positions of each board member.

  2. Bank Signature card. It will be necessary to sign a new signature card for your operating and reserve accounts. Contact your association manager who will set you up with one of the staff in the office who is trained on this process. At least four Board members should sign the bank card so there is back-up in the event someone is unavailable to sign the weekly checks. In addition, there are a couple of other forms to sign. These have to do with instructions regarding the possible need for filing of liens, as required by the law firm handling liens, and another form regarding owners having the ability to pay their dues by automatic debit

  3. Meetings – determine the best time and place to meet. Normally meetings occur at the home of one of the Board members or in a recreation room if one exists. Notify your manager of the dates of your meeting (i.e. third Wednesday) so that we can be sure to have your management reports to you before your meeting. Most associations meet monthly. However, if your By-laws permit, and you do not have many issues pending, you may be able to meet less often.

 

The President should also designate a board member to communicate directly with your manager just after board meetings. Your association manager may or may not be contracted to attend your Board meetings. If it is in your contract to attend, they should certainly will do so. The issue of whether they attend meetings or not can be altered by mutual agreement if the Board deems it necessary.

If you need a manager at a specific meeting, and if they are not contracted for evening meetings, some contract may allow them to charge per hour and this is paid directly to the manager to help compensate for them working a very long day. We would respectfully ask that you allow the manager to present their report and handle questions as early in the meeting as possible and then in some cases, be excused.

  1. Contact Information and Survey – In order to help serve you better, please take the time to complete a list or outline for the information to be discussed. It will help them get to know you better and how best to serve you. This keeps everyone on topic and point for why the meeting took place.

Find Upcoming Events; Educate yourself and the Board Members

Great Board Member practices – How do the best run Associations operate?

We have worked with great boards for many years, and we have worked with Boards who had great difficulty in leading their associations. Here is what we have observed in working with great boards:

  1. Great boards learn to work as a team. There is a balanced sharing of the work load among all board members.

  • The directors listen to others perspective, respecting those on the Board or the association with different opinions. The best decisions are made after a lively discussion of all the issues and concerns. Decisions made, even though not unanimous, become THE decision of the Board. Minority members accept the decision of the majority.

  • No single board member controls or dominates the Board or association. Board discussion is balanced with all members contributing. Board members with dissenting opinion are encouraged. The President leads, but should not dominate.

  • There are no decisions or actions outside of Board meeting, unless the President is required to take emergency action, in which case it is reported to the other members as soon as possible.

  • Board members do no not directly undertake tasks/jobs, that are more suitably handled by a designated professional….. CPA, attorney, consultant. Outside counsel is sought and followed from Management Company, attorney and other consultants as needed.

  • Decisions are made for the best interests of the entire association.

  • Board members understand that they are “serving” their members, not acting as managers.

  • The job of the board is to establish policies and review the work done by others.

  • The Board utilizes professional and competent vendors and they have reasonable expectations of their vendors.

  • Board members realize that they are Board members at Board meetings, or while conducting board business outside of a meeting, and homeowners the rest of the time. After all, this is your home too.

  • Board meetings are regularly scheduled, with proper notice to owners, to which Board members are prepared in advance with material read, and arrive ready to make decisions.

  • Minutes are taken that reflect the decisions made and distributed to owners in a timely fashion.

  • On the awarding of maintenance jobs cost is not the primary issue, rather a concern for the long term effectiveness. In other words, value, is more important than cost. Also, vendors are paid promptly upon satisfactory completion.

  • In the association there is a great community spirit. Owners voices are given consideration, and there is healthy dialogue when needed on important issues. Communication with owners is viewed as important.

  • Conflicts of interest: in a homeowners association the potential for this can occur frequently. Examples of this include relationships with association vendors, having work done on a portion of the common area that would benefit a board member and avoiding the same kind of work elsewhere, keeping the assessments low, at the expense of necessary repairs or reserve funding, so that a unit can be sold in the near future, are all examples of conflicts of interest. Be aware of them, and avoid even the hint of a conflict of interest.

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    THE FLORIDA LEGISLATURE – AFRAID TO PASS REQUIRED EDUCATION

    THE FLORIDA LEGISLATURE – AFRAID TO PASS REQUIRED EDUCATION

    THE FLORIDA LEGISLATURE – AFRAID TO PASS REQUIRED EDUCATION

    DOES THE FLORIDA LEGISLATURE WANT YOU TO REMAIN DUMB?

    By Eric Glazer, Esq.

    For those of you who are intelligent and decided to come to a Board Certification class in the last few months and learn all about the new safety and reserve laws, I applaud you.  It was my honor meeting you and teaching you all over the state.

    I love that look in your eyes and the groan that comes over the crowd when I tell you that you do not need to be here today.  You did not have to get certified by taking what I believe is both a board certification and a life safety class.  The Florida Legislature still allows Board members to get certified by signing a ridiculous form that says you have read your governing documents and you promise to enforce them.

    Are the new safety and reserve laws found in your governing documents?  Of course not.  You have to be taught them to know what you are now required to do in order that another Champlain Towers disaster never happens again.  You don’t learn these laws by staying home in your pajamas, printing a form off the computer and signing it.  When the members of your Board can get certified by signing that self-serving form, lives are at risk.

    It’s ironic that they placed language in the new laws requiring the directors to follow them or face breach of fiduciary duty charges.  So…..according to The Florida Legislature, you must apply these new laws in your condominium, you just don’t have to learn them and know what is actually required of you.

    Every legislator I have ever spoken to about a mandatory educational course in order to get Board certified is in favor of it.  Yet, it remains a mystery why in the past it has been removed from the statute.  The classes are free and are even accessible via ZOOM.  This year, there are several condominium bills floating around at the moment.  Not a single one has any mention of mandatory education for Board members.

    Back to the title “Does The Florida Legislature Want You To Remain Dumb?”  How else would you explain it?

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    ELECTRIC VEHICLE CHARGING STATIONS – CONDOMINIUMS GOING GREEN/ KBR Legal

    ELECTRIC VEHICLE CHARGING STATIONS – CONDOMINIUMS GOING GREEN/ KBR Legal

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    ELECTRIC VEHICLE CHARGING STATIONS – CONDOMINIUMS GOING GREEN

    Is your condominium association prepared to accommodate unit owners who request EV charging stations?

    The purchase and use of electric vehicles (EVs) are forecasted to grow exponentially in the next decade. To accommodate the need for new facilities associated with EVs, Florida law has required condominium associations to accommodate owner’s requests for EV charging stations.

    While gasoline powered vehicles are still dominant on Florida’s roads, the ever-growing presence of electric vehicles cannot be ignored. The number of electric vehicles on our highways and streets continue to climb as they become more and more affordable. As consumers continue to embrace a greener lifestyle, Florida’s lawmakers have paved the way for condominium unit owners’ need to have access to electric vehicle charging stations. Effective July 1, 2018, new legislation, section 718.113(8) of the Florida Statutes, became effective which facilitates a unit owner’s ability to install and use an electric vehicle charging station within the unit owner’s limited common element parking space.

    This new legislation prohibits the condominium association’s board of directors and a declaration of condominium provision or other restrictive covenants from prohibiting (or being enforced to prohibit) any unit owner from installing an electric vehicle charging station within the boundaries of the unit owner’s limited common element parking space, subject to certain conditions as laid out in this new legislation.

    It is important to note that the right of installation of an electric vehicle charging station is ONLY applicable to the “limited common element” parking space and does not apply to a “common element” parking space. There is an important difference between a common element and a limited common element parking space. While all unit owners own an undivided interest in both, the limited common element parking space vests an individual use right to the owners of the unit to which the limited common element is appurtenant (connected to). Therefore, associations may prohibit the installation of electronic vehicle charging stations within the common elements or other portions of the condominium property that are maintained for the general use and benefit of all unit owners, but not as applied to a limited common element parking space, subject to the limitations and conditions of the legislation.

     

    Thus, section 718.113(8) of the Florida Statutes, provides that, in considering a unit owner’s request to install an electric vehicle charging station, the association first must determine whether the charging station is to be installed within the boundaries of the requesting unit owner’s limited common element parking space. Whether a parking space is a limited common element is determined by the provisions of the declaration of condominium designating the parking space for the exclusive use and benefit of the owners of a specific unit.

     

    If it is determined that the parking space is a limited common element, the unit owner may have the electric vehicle charging station installed subject to the requirements of the new legislation. These requirements provide that:

    1) The installation cannot cause irreparable damage to the condominium property.

    2) The unit owner is responsible for the costs of installation, operation, insurance, maintenance, repair, and removal of the charging station.

    3) The electricity for the electric vehicle charging station must be separately metered and payable by the unit owner.

    All of the above costs, if left unpaid by a unit owner, are enforceable by the association as any other assessment due pursuant to section 718.116, Florida Statutes, meaning if left unpaid their condominium unit can be foreclosed.

     

    Additionally, as provided by the new legislation, the association can and should require that the unit owner:

    1) comply with bona fide safety requirements, consistent with applicable building codes or recognized safety standards, for the protection of persons and property;

    2) comply with reasonable architectural standards adopted by the association that govern the dimensions, placement, or external appearance of the electric vehicle charging station, provided that such standards may not prohibit the installation of such charging station or substantially increase the cost thereof;

    3) engage the services of a licensed and registered electrical contractor or engineer familiar with the installation and core requirements of an electric vehicle charging station;

    4) provide a certificate of insurance naming the association as an additional insured on the owner’s insurance policy for any claim related to the installation, maintenance, or use of the electric vehicle charging station within 14 days after receiving the association’s approval to install such charging station; and

    5) reimburse the association for the actual cost of any increased insurance premium amount attributable to the electric vehicle charging station within 14 days after receiving the association’s insurance premium invoice.

     

    A unit owner’s “right” to install a charging stations is not, however, without limits. An association may require that the unit owner comply with all safety requirements, applicable building codes or recognized safety standards for the protection of the association property and its members. An association may also require the unit owner to engage the services of a licensed and registered electrical contractor or an engineer that is familiar with the installation and requirements of an electric vehicle charging station. An owner wishing to install an electric vehicle charging station may also be required to comply with any reasonable architectural standards adopted by the association that govern the dimensions, placement or appearance of the electric vehicle charging station. However, such standards cannot substantially increase the cost of installation.

    The new law also provides for additional safeguards for the association. For example, installation of an electric vehicle charging station may not cause irreparable damage to the condominium property. The electricity for the electric vehicle charging station must be separately metered and paid for by the unit owner making the installation. Cost of installation, operation, maintenance and repair of the electric vehicle charging station, including hazard and liability insurance, is the unit owner’s responsibility. Additionally, an association may require the unit owner to reimburse the association for the actual cost of any increased insurance premium attributable to the electric vehicle charging station. The law also shields condominium associations from construction liens resulting from the installation of electric vehicle charging stations by unit owners.

    The new law does not, however, say anything about what happens if the association voluntarily opts to install “common” electric vehicle charging stations. In other words, if a condominium association opts to install these “common” electric vehicle charging stations (after complying with the necessary legal requirements) it does not mean that unit owners no longer have the right to install their own charging stations. The new law also does not address who is responsible for any costs associated with upgrading the condominium’s electrical system if an upgrade is necessary to handle the increased electrical usage. (The above 3 paragraphs Originally posted on floridacondohoalawblog.com and written by Jennifer Horan)

    Just our Thought: It would be nice to see Condos installing Charging Stations, Separate Meters and then Charging Electric Car owners Fees to cover costs and a little extra for the Associations. We will see what happens?

     

    Although your condominium association may not have received a request for the installation of an electric vehicle charging station as yet, your board of directors should be prepared for such a request. After all, it is only a matter of time. Therefore, condominium boards should consider adopting rules and regulations governing the process by which a unit owner is required to make such a request and provide for procedures by which the board of directors is to conduct its review and approval of the request.

    While a unit owner desiring to install and use an electric vehicle charging station within his or her limited common element parking space will be able to do so by way of this new legislation, the association still has the authority to govern certain aspects of the installation and use and should be proactive in making rules and regulations in line with this authority. Your association’s legal counsel can be of great benefit to the board in creating a clear and concise process governing the electric car charging stations installation and use.

     

    Keep up to date with Articles for Condo and Homeowners Associations

    Rembaums Association Roundup

     

     

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    Event: “Ask the Experts” Thursdays Live on the first Thursday of each month, from 5:00pm to 6:00pm Eastern

    Event: “Ask the Experts” Thursdays Live on the first Thursday of each month, from 5:00pm to 6:00pm Eastern

    Ask the Experts’ Thursdays

    Live on the first Thursday of each month, from 5:00pm to 6:00pm Eastern

    Attorney Robert Kaye answers your community association-related questions on this monthly addition.

    Do you have questions about your condominium, homeowners’ or cooperative association? Get your questions answered live on-air, anytime during the show!

    The new number is: 561-623-9429

    Florida Condo Building Inspections (SB4d) It’s a confusing time for everyone affected, and we can all use some extra clarity.

    Florida Condo Building Inspections (SB4d) It’s a confusing time for everyone affected, and we can all use some extra clarity.

    Florida Condo Building Inspections (SB4d)

    It’s a confusing time for everyone affected, and we can all use some extra clarity.

    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.

     

    • Under the new legislation, a licensed engineer or architect must visually evaluate condominiums older than 30 years, or 25 years if the building is within 3 miles of the shore, and every 10 years thereafter.

     

    • A secondary inspection will be required if there is evidence of significant structural damage.

     

    • The new rule also mandates that condo organizations review their reserve money every ten years to ensure that they can cover substantial repairs.

     

    This is a great Video to start your education on SB-4D

    https://www.youtube.com/watch?v=0QdEqUgL1CM&t=51s

    Milestone Inspections

    Addition of F.S. 533.889 – Milestone Inspections

     

    What buildings does this law affect, and what does the new law say? 

    Structural inspections are now mandatory for condominium and cooperative buildings that are 3 stories or greater in height.

     

    What do I have to do?

    Have a Milestone Inspection performed when a building is 30 years old and every ten years after the initial inspection. If your building is within 3 miles of the coastline, a Milestone Inspection must be performed when the building is 25 years old and every ten years after the initial inspection.

     

    What else do I need to know about this inspection? 

    The purpose is to verify the safety and adequacy of the structural components of the building. There are two possible phases of this Milestone Inspection. If you pass the first, you don’t need the second. If you don’t pass the first, you’re required to have the second performed, which is much more extensive.

    Phase 1is a visual examination and qualitative assessment. Ideally, this will be all you have to complete.

    Phase 2is a full assessment of distress to determine if the building is structurally sound and safe for its intended use. The inspector is to recommend a program for complete evaluation and repair of distressed and damaged portions of the building.

    On SFPMA.COM find the top rated engineers for your SB-4D Inspections.

    A Florida Licensed Engineer or Architect must perform both phases of this Milestone Inspection.

    Find the Top rated Engineers on our State of Florida Members Directory. Members are located all over Florida, Boards, Managers, Owners, Investors can view our open directory and find these companies to start the Inspections.

     

    When is the deadline?

    If your building is over 30 years old (or 25 if you’re within 3 miles of the coast), you must complete this inspection by December 31st, 2024.

     

    We at SFPMA recommend you know about this new Florida condo law?

    Don’t wait to get started on this. If you act now, you can likely avoid a Phase 2 inspection by correcting any items that might force you into a Phase 2, before the December 31st, 2024 date. Those who wait may be forced into a more expensive Phase 2 can’t make necessary repairs in time. (*If a building is less than 3 miles from the coastline, these inspections start at year 25). 

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    JUST WALK AWAY – By Eric Glazer, Esq.

    JUST WALK AWAY – By Eric Glazer, Esq.

    JUST WALK AWAY

    By Eric Glazer, Esq.

    I was recently watching an interview of a black belt in karate.  In addition he was built like The Hulk.  He started to say what he does when someone curses him out and even challenges him to a fight.  I was certainly expecting him to describe how he turns others into rubble.  On the contrary, he said that whenever he finds himself in that position, instead of fighting back, he simply walks away.  To say I was originally surprised is an understatement.  I mean this guy could pulverize any opponent.  Instead, he chooses to just walk away.

    He spelled out why.  If he beats someone up he faces both criminal and civil charges.  And for what?  Because some dope said a few nasty words about him?  Much better to just walk away from any situation that allows for it.  Wow, I was impressed by this guy’s brain, not just his muscle.

    It got me to thinking about my career in condominium and HOA law.  How much time in my life did I spend hearing board members and unit owners verbally go at each other.  How much time in my life did I spend hearing unit or homeowners argue with other unit or homeowners?  It’s ridiculous.

    In none of these arguments was anything accomplished whatsoever.  They were all a waste of time for those arguing and everyone who unfortunately had to listen to the nonsense.  I’ve seen physical fights break out and even walkers and canes fly through the air.  And for what?  What was accomplished?  Nothing.

    So, board members, unit owners, home owners and even managers, I’m talking to you.  Next time someone is looking for a fight, do what the karate guy does, walk away.  It will probably drive the other person crazy.

     

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