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January Events for Board members and Managers: View our Calendar

January Events for Board members and Managers: View our Calendar

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New Courses Training & Events in Florida have been Added!

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TUE19

CONDOMINIUM BOARD MEMBER CERTIFICATION

WEBINAR Florida

CONDOMINIUM BOARD MEMBER CERTIFICATION  01/19/2021  12:00 pm – 2:00 pm  https://us02web.zoom.us/webinar/register/WN_z99HrslSTwOBYvSRCFGWFQ  Webinar Event Instructor: Andrew B. Black, Esq., B.C.S. Course #: 9630075 | Provider #: 0005092 CAM CE credit: 2 credits in IFM or ELE This webinar covers the essentials of condominium board membership, and is updated regularly to remain current with amendments to Florida legislation. In addition, this webinar satisfies Florida’s requirement for new condominium board members. It also serves as an excellent refresher course. This course is for Condominium Association Board Members only.

CH-CH-CHANGES – MATERIAL ALTERATIONS / SPECIAL ASSESSMENTS

WEBINAR Florida

CH-CH-CHANGES – MATERIAL ALTERATIONS / SPECIAL ASSESSMENTS by Katzman Chandler Wednesday, January 20, 2021 from 1:00 PM to 2:00 PM EST Learn what does and does not constitute a material alteration which requires membership approval. At some point, your Board will want to make alterations in the Community. Learn how to handle this process correctly from the start. Please join our Statewide Educators, Bill and Sue Raphan, as they present this fun and informative educational course online via Zoom Webinar Services. Space is limited to the first 150 registrants, so please do not delay! Provider #0007237 Course #9628492 1 hour Manager Continuing Education Elective Credits Register Today

Condo Craze & HOAs HOSTED BY – ERIC M. GLAZER, ESQUIRE SUNDAYS AT 11:00 a.m. ON 850 WFTL

Condo Craze & HOAs HOSTED BY – ERIC M. GLAZER, ESQUIRE SUNDAYS AT 11:00 a.m. ON 850 WFTL Jan 24 @ 11:00 am – 12:00 pm Condo Craze & HOAs HOSTED BY – ERIC M. GLAZER, ESQUIRE SUNDAYS AT 11:00 a.m. ON 850 WFTL The show is streamed live on the web at www.850wftl.com and on your mobile device. Presents a forum for Board members and owners to tell their side of the story. The show randomly has guest speakers who are experts on the daily problems associations encounter. All issues that our associations encounter each day are proper topics for discussion. Expect to hear from politicians, Board members, owners, tenants, community association managers, developers, community association accountants, construction industry personnel and other government officials. Listeners call in and ask questions of attorney Eric Glazer and his legal team as well as any guest present.

FIDUCIARY DUTY, BUSINESS JUDGMENT & FRAUD PREVENTION IN CONDOS AND HOAS / BOARD MEMBER PROTECTION

WEBINAR Florida

FIDUCIARY DUTY, BUSINESS JUDGMENT & FRAUD PREVENTION IN CONDOS AND HOAS / BOARD MEMBER PROTECTION by Katzman Chandler Wednesday, January 27, 2021 from 1:00 PM to 2:00 PM EST Learn about your Fiduciary Duty as a Board Member, when and how the Business Judgment Rule applies to Board decisions, and what protections are offered to Board Members through the Association’s Directors and Officers insurance. Find out the most common reasons for Board Members being sued, and learn how to discover and prevent fraud in your Association. Please join our Statewide Educators, Bill and Sue Raphan, as they present this fun and informative educational course online via Zoom Webinar Services. Space is limited to the first 150 registrants, so please do not delay! Provider #0007237 Course #9629161 2 hours Manager Continuing Education Elective Credits Register Today

Tips To Restore Your Shoreline and Prevent Erosion by SOLitude Lake Management

WEBINAR Florida

Tips To Restore Your Shoreline and Prevent Erosion by SOLitude Lake Management Wednesday, January 27 @ 2:00 pm (EDT) Kick off the new year with our first educational webinar of 2021! Shoreline erosion is a concerning reality that all lake and pond owners will face, but with informed management it is possible to reverse sedimentation and set up your waterbody for continued success. Unlike common fixes, which tend to lack aesthetic appeal or long lasting stabilization, stakeholders can now combine new solutions with modern buffer management techniques to achieve both! Join our experts to learn about the best strategies to reinforce your shoreline AND make it a focal point on your property. Registration Is Free. Spots Are Limited. Register Today!

GET BOARD CERTIFIED AND FULFILL YOUR 2021 LEGAL UPDATE CREDITS! by Condo Craze and HOAs

GET BOARD CERTIFIED AND FULFILL YOUR 2021 LEGAL UPDATE CREDITS! by Condo Craze and HOAs JANUARY 28th, 6:00 P.M Managers: Our Course is now approved for Three 2021 Legal Update Credits. Course Number: 9630640 TO REGISTER: CLICK HERE: OR CALL OUR OFFICE AT: 954-983-1112 CONDO AND HOA EDUCATION IS BACK! GET BOARD CERTIFIED FROM THE COMFORT OF YOUR OWN HOME. REMEMBER, IF YOU DON’T GET CERTIFIED WITHIN 90 DAYS OF GETTING ON THE BOARD – YOU ARE OFF THE BOARD.

Condo Craze & HOAs HOSTED BY – ERIC M. GLAZER, ESQUIRE SUNDAYS AT 11:00 a.m. ON 850 WFTL

Condo Craze & HOAs HOSTED BY – ERIC M. GLAZER, ESQUIRE SUNDAYS AT 11:00 a.m. ON 850 WFTL Jan 31 @ 11:00 am – 12:00 pm Condo Craze & HOAs HOSTED BY – ERIC M. GLAZER, ESQUIRE SUNDAYS AT 11:00 a.m. ON 850 WFTL The show is streamed live on the web at www.850wftl.com and on your mobile device. Presents a forum for Board members and owners to tell their side of the story. The show randomly has guest speakers who are experts on the daily problems associations encounter. All issues that our associations encounter each day are proper topics for discussion. Expect to hear from politicians, Board members, owners, tenants, community association managers, developers, community association accountants, construction industry personnel and other government officials. Listeners call in and ask questions of attorney Eric Glazer and his legal team as well as any guest present.

 

 

 

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MASTER ASSOCIATION V. SUB ASSOCIATION – WHO WINS?  (Part 1) By Eric Glazer, Esq.

MASTER ASSOCIATION V. SUB ASSOCIATION – WHO WINS?  (Part 1) By Eric Glazer, Esq.

  • Posted: Jan 18, 2021
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MASTER ASSOCIATION V. SUB ASSOCIATION – WHO WINS?  (Part 1)

By Eric Glazer, Esq.

Published January 18, 2021

A very interesting case was just decided by Florida’s Second District Court of Appeal.  RIVIERA-FORT MYERS MASTER ASSOCIATION, INC., v. GFH INVESTMENTS, LLC.  2020 WL 7767856.  To simplify, in a mixed-use community, meaning a community made up of commercial property and residential housing, the Master Association adopted seven amendments to the community’s master declaration. The court referred to the sub associations as the “Liner Buildings.”  In general terms, the amendments addressed the Master Association’s authority to approve proposed uses of the property located in the sub communities, (Liner Buildings) increased assessments on them, and imposed additional restrictions on the Liner’s tenants.

I write about the case because it is a great learning case about the relationship between a Master and a Sub and about community living in general.  The court said so much that we will break up this blog over a two week period.  Let’s start:

Are all amendments voted on by owners to the governing documents legal?

 “In determining the enforceability of an amendment to restrictive covenants, the test is one of reasonableness.”Holiday Pines Prop. Owners Ass’n v. Wetherington, 596 So. 2d 84, 87 (Fla. 4th DCA 1992). This court defined “reasonable” as “not arbitrary, capricious, or in bad faith.” Hollywood Towers Condo. Ass’n v. Hampton, 40 So. 3d 784, 787 (Fla. 4th DCA 2010). In other words, as we stated in Holiday Pines, the modification of restrictions cannot “destroy the general plan of development.” Holiday Pines, 596 So. 2d at 87 (citing Nelle v. Loch Haven Homeowners Ass’n, 413 So. 2d 28 (Fla. 1982)). Amendments which cause “the relationship of lot owners to each other and the right of individual control over one’s own property” to be altered are unenforceable. Id. at 88. Such an alteration is considered a “radical change of plans.” Id. Klinow v. Island Court at Boca W. Prop. Owners’ Ass’n, 64 So.3d 177, 180 (Fla. 4th DCA 2011) (footnote omitted). Klinow further defined “radical change” as “a change which would create an inconsistent scheme, or a deviation in benefit from that of the grantee to that of the grantor.” Id. (citing FlamingoRanch Estates, Inc. v. Sunshine Ranches Homeowners, Inc.,303 So. 2d 665, 666 (Fla. 4th DCA 1974)).

Can the HOA Be More Restrictive than the local zoning authority?

It is well established that restrictive covenants can be more restrictive than limitations imposed by municipalities. See, e.g., Luani Plaza, Inc. v. Burton, 149 So. 3d 712, 714–16 (Fla. 3d DCA 2014) (allowing a business owners’ association to prohibit residential use of a commercial property despite municipal permission for residential use); Stuart Sportfishing, Inc. v. Kehoe, 541 So. 2d 169, 170 (Fla. 4th DCA 1989) (holding that a less-restrictive zoning ordinance did not control over a more-stringent restrictive covenant); Tolar v. Meyer, 96 So. 2d 554, 556 (Fla. 3d DCA 1957) (holding that a zoning decision allowing property to be used as a church did not control over a restrictive covenant prohibiting such a use).

Do Owners Give Up Some Freedom When They Move Into a Condo or HOA?

owners of property in condominium complexes necessarily accept a greater degree of restriction on their property rights); Hidden Harbour Estates, Inc. v. Basso, 393 So. 2d 637, 640 (Fla. 4th DCA 1981)

Next week I’ll write about some other facets of the law discussed in the opinion.

 

 

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Financial Screening of Purchasers: How Far Is Too Far? by Kaye Bender Rembaum

Financial Screening of Purchasers: How Far Is Too Far? by Kaye Bender Rembaum

  • Posted: Jan 14, 2021
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Financial Screening of Purchasers: How Far Is Too Far?

by Kaye Bender Rembaum / Rembaum’s Association Roundup

 

A few months back a case came before the county court in the 20th Judicial Circuit for Collier County, wherein a prospective buyer challenged the validity of a board-adopted rule which required that all prospective buyers provide two years of tax returns with their application for ownership approval. This requirement was in addition to the background check and credit check that were also required. While this is only a county court case and, therefore, has no precedential value other than to the parties themselves, there are principles addressed of which associations and managers should be aware; even though many learned attorneys would opine that the conclusions of the court are legally flawed under the facts of the case and, if appealed, would likely be overturned. Nevertheless, there are still nuggets of knowledge that can be gleaned from this case.

In this case, Mech v. Crescent Beach Condominium Association, Inc., Case No. 19-SC-3498, decided June 2020, the purchaser, who was the plaintiff, was seeking to buy a unit at Crescent Beach Condominium for $400,000, which was to be paid in cash. The purchaser purportedly had a clean background and a credit score of 800. Nonetheless, the board required that, like all other prospective purchasers at the condominium, this purchaser needed to produce his tax returns in order for the association to approve the transfer. The purchaser refused to provide his tax returns and cited his good credit score and clean background as evidence enough for approval. Eventually, an impasse was reached, and the purchaser canceled the contract. Then he brought the county court lawsuit challenging the requirement. (Generally speaking, typically under current Florida law, the purchaser would not have legal standing to even bring the claim against the association; but it does not appear that this legal infirmity was raised by the association, which allowed the case to proceed.)

The purchaser challenged the rule, arguing that the rule was not within the scope of the association’s authority to adopt, nor did it reflect reasoned decision-making. (It is noteworthy to point out that, after the initiation of the lawsuit, the association amended its declaration of condominium to provide that the association may require tax returns in an application for approval of a sale. However, this is not relevant to the conclusions of the Court in this case since it occurred after the litigation was filed.)

The association argued that the tax returns are necessary because they provide more information than a credit report and could help ensure that the potential purchaser is “a good credit risk.” The Court, however, did not agree, calling the argument “nonsensical.” The Court goes on to identify what this judge considers to be the best indicator of a person’s financial history, and as a result, it is the only information the association is allowed to seek. (We note that this conclusion is also without a stated legal basis.)

In the final judgment, some might argue that the Court goes way beyond what proper judicial consideration and conclusions typically contain and indicates that she could find “NO justification for the invasive requirement that a full, or even partial, return would be required when, in fact, the board already requires a full background check and credit check.” While no legal support for the conclusion was provided, the Court held that the request for tax returns was invasive and unnecessary and that the requirement was “shocking.”

 

The Court objected to the blanket requirement that applied to every applicant regardless of the results of their background and credit checks. Had the tax returns only been required when an applicant’s credit history showed a history of financial instability or delinquencies, the rule may have been upheld by the Court. How-ever, the Court held that “to take a position that ‘every person’ who applies to be a member at [the association] is patently unreasonable and shall be stricken.” Lastly, also without a legal basis or ability, the Court ordered the association to strike all reference in its condominium documents which require potential purchasers to produce tax returns unless the association can show good cause to request the information.

A brief discussion regarding the adoption of rules and regulations is necessary to highlight lessons that can be learned from this case. Generally, both condominium and homeowners association governing documents will typically provide that the board of the directors has the authority to adopt rules and regulations for the community. While some governing documents may contain restrictions requiring a membership vote to approve new rules, it is common for the governing documents to provide the board with the authority to adopt rules and regulations. (Careful review of the documentary authority for each community is recommended as some may limit the rule-making authority to common areas only and not to the residential property within the community.)  Although the board is generally authorized to adopt rules and regulations, those rules and regulations must not conflict with any provision expressly set out in the governing documents or reasonably inferred from them, and they must be reasonable. (This should be contrasted with covenants recorded in the County’s official records, which may be unreasonable and still be legally enforceable under long-standing Florida case law.)

 

In Beachwood Villas Condominium v. Poor, et. al., a 1984 Fourth District Court of Appeal (4th DCA) case  in which several owners challenged rules enacted by their association’s board of directors, the Court noted that there could be two sources of use restrictions: (i) those set out in the declaration of condominium and (ii) those adopted by the board. As to the use restrictions set out in the declaration, the court held that such restrictions are “clothed with a very strong presumption of validity,” as initially provided in Hidden Harbor Estates v. Basso (a 1981 4th DCA case).

In examining board-adopted rules, the court first must determine whether the board acted within its scope of authority—in other words, whether the board had the express authority in the documents to adopt the rule in the first place. If the answer is “yes,” the second question to determine is whether the rule conflicts with an express provision of the governing documents or one that is reasonably inferred. (If the documents are silent on an issue, the inference is that it is unrestricted. Adopting a rule to restrict a topic that the declaration is otherwise silent about would conflict with the inferred unrestricted use and therefore be unenforceable.)  If these first two issues are found to exist, the court will then determine if the rule is reasonable. The board’s exercise of its reasonable business judgment in adopting a rule is generally upheld so long as the rule is not “violative of any constitutional restrictions and does not exceed any specific limitations set out in the statutes or condominium documents.”

 

In examining your own board-adopted rules, ask the following:

  • Did the board have the power to adopt the rule?
  • Is the rule in accord with with the declaration, articles of incorporation, or bylaws?
  • Is the rule reasonable under the circumstances? (While ultimately only a court can make this final determination, the board should use its best judgment, with assistance of its counsel, to reach this decision.)

If the answer to these three questions is “yes,” then the rule should be found to be valid and enforceable by the court upon an owner challenge.

Ultimately, what can be gleaned from Mech v. Crescent Beach Condominium Association Inc. is that even if the association acts reasonably when adopting rules and even when amending the declaration, a lower court judge can reach almost any decision it wishes. Had the provision at issue only required tax returns when the background or credit checks revealed that the prospective purchaser had a history of financial irresponsibility, the provision may have withstood judicial challenge by this particular judge. Additionally, had the provision requiring tax returns been set out in the declaration before the initiation of the lawsuit, the outcome may have been different under existing, well-established case law.

Bottom line, whenever the board is considering new rules, it is recommended that the board consult with the association’s legal counsel before adopting them.

Jeffrey Rembaum, Esq.

Board Certified Specialist in Condominium and Planned Development Law and a community association lawyer with the law firm Kaye Bender Rembaum, in its Palm Beach Gardens office.

His law practice consists of representing condominium, homeowners, and cooperative associations, developers and unit owners throughout Florida.

He can be reached by email at JRembaum@KBRLegal.com or by calling 561-241-4462.

 

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We want to help your community thrive! If you are in need of property management services or any of our other services by Seacrest Services

We want to help your community thrive! If you are in need of property management services or any of our other services by Seacrest Services

  • Posted: Jan 14, 2021
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We want to help your community thrive! If you are in need of property management services or any of our other services, then give us a call today at 561.697.4990 to learn more.

by Seacrest Services

From full-service property management and professional accounting services to complete landscaping and property maintenance needs, Seacrest Services can tailor a specific plan for your community association or commercial property. We take great pride in the longevity of our client relationships and continued customer satisfaction. We maintain a team of experienced employees with expert knowledge on the industry, ensuring that your property is treated with the highest level of professionalism.

 

SERVICES WE OFFER

We have your property management needs covered – inside and out.

Property Management – All of our property management personnel are state licensed community association managers and undergo Seacrest’s extensive in-house training program. Quality service is of utmost importance and the basic expectation of the Seacrest Management Team.

Maintenance and Janitorial Services – Seacrest Services is proud to offer our customers an experienced and capable management team utilizing the latest building maintenance equipment, cleaning techniques, and commercial janitorial supplies. We aim to meet and exceed all of your standards of cleanliness and enhance your facility’s appearance.

Customer Service – We understand that your residents are the lifeblood of your community, providing quality customer service to each of them is our privilege. Our interactive Live Operator Customer Service Program is tailored to fit the unique needs of each association we oversee. This approach helps to promote a harmonious living environment all while reducing the need for direct Board involvement in day-to-day issues.

Accounting & Financial Services – Since no one accounting system works for everyone, we customize your system to meet the specific requirements of your association. Our state-of-the-art technology gives you the information you need at the touch of a button while our skilled accounting team provides support and assistance.

Landscape Services – With a dedicated team of experienced and knowledgeable landscape professionals, we have the expertise to create and maintain a lush, healthy landscape for your property. Our comprehensive landscape services eliminate the hassle of hiring multiple vendors and ensure you receive the highest quality services from one easy source.

 

Let’s transform your facility!  Request a Bid!

When you submit a request to Seacrest Services, one of our representatives will call you to set up a time to meet. We will then walk your property or the job area with you. A site walkthrough is important because no two properties are the same. A variety of variables, such as square footage, the scope of work, and condition of the property, makes each situation unique. Our representatives will work with you to design a custom-tailored solution to fit your property’s individual needs.

 

Seacrest Services

From full-service property management services and professional accounting services to complete landscaping and property maintenance needs, Seacrest Services can tailor a specific service plan for your commercial property or community association. We take great pride in the longevity of our client relationships and our customers’ continued satisfaction with our quality property management services. We maintain one of the highest levels of experienced employees in our industry, ensuring that your property gets the professionalism and knowledge you deserve.
With offices in West Palm Beach and Pompano Beach, Seacrest is uniquely positioned to handle the needs of South Florida’s community associations, commercial properties and businesses. Since 1975 we have been a leader in community association management including property management, accounting, landscape services, maintenance services, commercial property services and even construction. To see how Seacrest can lead your community into the future, call us today at 888-828-6464.
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CAM LICENSING COURSES: START YOUR NEW CAREER | SFPMA

CAM LICENSING COURSES: START YOUR NEW CAREER | SFPMA

CAM LICENSING COURSES: START YOUR NEW CAREER

Online Courses for Licensing can be completed while your at home.

This might be a great time to Take your online Testing and become a CAM

CAM License Courses and Board Members Certification in Florida

Our Industry Partners provide: Licensing Classes, Training and Licensing for CAM – Board Member Courses

Enjoy our self-paced online class and comply with the State Education Requirement for Community Associations.

As you were thinking of starting up property Management Services sometimes working with a broker for sometime can help you create relationships with other sales associates in that office that can prove to be good referrals. If you’ve had your license for 5 years you would qualify to get your broker’s license and when you feel comfortable it may be a good time to transition to your own company or even a different franchise. the property management association is a good tool, there is an enormous amount of liability and property Management

 

 

 

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Property Management Forms

Now that you are getting your License you will need Management Forms!

We have partnered with USLegalForms to give our clients Every Form you will need to help you set up your business, Lease Forms, Incorporation Documents, and so many others………

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

 

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

 

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Aruba Permit Services is your one-stop-shop provider for closing all your open building permits and code violations.

Aruba Permit Services is your one-stop-shop provider for closing all your open building permits and code violations.

  • Posted: Jan 12, 2021
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Aruba Permit Services is your one-stop-shop provider for closing all your open building permits and code violations.

 

We Specialize in Resolving Open or Expired Permits, Code Violations, and
Lien Negotiations!

 

  • Expired Building Permits
  • Code Violations
  • ”As-Built” Engineer Drawings
  • Garage Conversions
  • Unpermitted Work
  • Courtesy Public Notary 
  • Inspections
  • Repairs
  • Lien Negotiations
  • Complimentary Zoom Video Inspections
  • ”After the Fact” Building Permits
  • Illegal Additions
  • Re-roof Certifications
  • 40/50 Year Building Re-certifications 
  • Renovations and Remodels
  • Roofing

 

Call us at (954) 786-7292 or visit our website aruba-services.com to request a free quote!

View our SFPMA Membership Page Working with Condo and HOA in Florida’s Management Industry!

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BEFORE YOU INSTALL THAT NEW RING DOORBELL By Eric Glazer, Esq.

BEFORE YOU INSTALL THAT NEW RING DOORBELL By Eric Glazer, Esq.

BEFORE YOU INSTALL THAT NEW RING DOORBELL

By Eric Glazer, Esq.

It’s becoming impossible to keep up with technology.  Just when you think you bought the latest, greatest computer or cell phone the world may ever see, a month later there’s new technology that makes you device already seem outdated.  It’s a never ending cycle.  Well, one new technological advance is the RING doorbell, which is a doorbell that let’s you see who is at your front door, by simply glancing at your cell phone.  I have one for my home and another for my office.  It even let’s you speak to and hear the person who is at your door, even when you are not home.  In fact, you can be anywhere in the world.  It really is fantastic technology that everyone is taking advantage of.  BUT IF YOU LIVE IN A CONDOMINIUM…..YOU CAN’T.

Let’s again review Florida Statute 718.113(2)(a):

Except as otherwise provided in this section, there shall be no material alteration or substantial additions to the common elements or to real property which is association property, except in a manner provided in the declaration as originally recorded or as amended under the procedures provided therein. If the declaration as originally recorded or as amended under the procedures provided therein does not specify the procedure for approval of material alterations or substantial additions, 75 percent of the total voting interests of the association must approve the alterations or additions before the material alterations or substantial additions are commenced. This paragraph is intended to clarify existing law and applies to associations existing on July 1, 2018.

So the question is…..is the installation of a RING doorbell on your condominium front door, a material alteration to the common elements that requires a vote of the owners? In Persi v. Playa Del Mar Association, Case No. 19-02-7292, March 16, 2020, Arbitrator Keith Hope held that it was and upheld the association’s right to remove it.  The arbitrator first again indicated the definition of a material alteration:

“[A]s applied to buildings, the term material alteration or addition ‘means to palpably or perceptively vary or change the form, shape, elements or specifications of a building from its original design or plan, or existing conditions, in such a manner as to appreciably affect or influence its function, use or appearance

Applying this test, the Arbitrator held that Petitioners’ installation of the ring video doorbell was a material change to the appearance of the common property door, and required installation of electrical wiring within the common property walls. Moreover, it is undisputed that Petitioners’ ring video doorbell contains a security camera that captures both audio and video of persons and activities within its field of view. Installation of a security camera on or in a condominium’s common property is deemed a material alteration. Dellagrotta v. West Coast Vista Association, Inc., Arb. Case No. 2013-02-7351, Summary Final Order (October 4, 2013).

While it’s hard to say the arbitrator’s reasoning was not correct, arbitration cases have long held that when the Board wants to use the benefits of new technology, it’s suddenly not a material alteration but a wise business judgment decision.

For example:

In the arbitration case of A. N. Inc. v. Seaplace Association, Inc., Arb. Case No. 98-4251, Summary Final Order (Oct. 29, 1998), replacement of all of the windows in the condominium with an upgraded version, with a tilt-out cleaning feature, tinting and heavier glass, was held not to require a unit owner vote. The arbitrator noted that the choice of the type of window used is a decision within the board’s business judgment and that “a board in the exercise of its well-reasoned and documented judgment could and should take advantage of changes in technology, building materials, and improved designs …” See also, Kreitman v. The Decoplage Condominium Association, Inc., Arb. Case No. 98-4711, Final Order (July 30, 1999) (board’s decision to replace worn hallway carpets with longer lasting solution-dyed, woven carpet was not subject to unit owner approval).

 

In light of these cases, why are upgraded windows and carpets not considered a material alteration, but upgraded doorbells that take advantage of the latest technology are?  Just like the Board, I don’t see the harm in owners having the right to take advantage of “changes in technology” and having the ability to install a doorbell that provides better safety, security and ease of use.

 

 

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Association Rules After Expiration of the Governor’s State of Emergency Order for COVID-19 by Kaye Bender Rembaum

Association Rules After Expiration of the Governor’s State of Emergency Order for COVID-19 by Kaye Bender Rembaum

  • Posted: Jan 08, 2021
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Association Rules After Expiration of the Governor’s State of Emergency Order for COVID-19

by Kaye Bender Rembaum

By the time you read this article, the governor’s declared state of emergency as related to the coronavirus may have reached an end. If not, well, hopefully it will soon enough due to significant diminution of the coronavirus. What then? What happens to the rules adopted by an association in an effort to combat the coronavirus? Can an association turn away guests of residents? Can the number of people allowed to use the amenities, such as the pool, be limited? Just how far can the board go in its efforts to create reasonable rules?

The emergency powers set out in §720.316 of the Homeowners’ Association Act, §718.1265 of the Condominium Act, and §719.128 of the Cooperative Act begin essentially the same. They each begin with the following phrase:

To the extent allowed by law and unless specifically prohibited by the declaration or other recorded document [or declaration of condominium, its articles or bylaws or cooperative documents, as the case may be], the articles, or the bylaws of an association, and consistent with the provisions of s. 617.0830, the board of administration, in response to damage caused by an event for which a state of emergency is declared pursuant to s. 252.36 in the locale in which the association [or condominium or cooperative as the case may be]   is located, may, but is not required to, exercise the following powers:…

 

In addition, they each end essentially the same, too, as follows:

The special powers authorized under subsection (1) shall be limited to that time reasonably necessary to protect the health, safety, and welfare of the association and the unit owners and the unit owners’ family members, tenants, guests, agents, or invitees and shall be reasonably necessary to mitigate further damage and make emergency repairs.

 

Therefore, the emergency power legislation contemplates use of the emergency powers in response to damage caused by an event for which a state of emergency has been declared by the governor and for a reasonable amount of time after the state of emergency is over, as necessary. But, as related to the coronavirus, can the emergency powers still be relied upon at the conclusion of the governor’s declared state of emergency? It is undisputable that the emergency power legislation was drafted in response to hurricanes, where actual damage to buildings and other property occurred, and not for the epidemic of an unexpected deadly virus. But, at least this ever-important legislation lent its applicability to the coronavirus situation and was relied upon by boards and lawyers alike to allow association board members to approve rules in an effort to contain the coronavirus. In response to the virus, some association boards restricted realtor showings and construction work, limited or even prevented guests, and the list goes on and on. Often these rules were adopted with limited notice to the members, sometimes outside of properly noticed meetings (which, depending on the situation may have been, was permitted at the time pursuant to the statutory emergency powers, which still require providing reasonable notice under the circumstances). The further in time we are from the end of the declared state of emergency, the less the emergency powers legislation can be relied upon…most especially because they were drafted with a different type of emergency in mind.

Therefore, in order to ensure your community’s, by now likely revised and lessened, coronavirus rules and regulations remain valid and enforceable, it is important to review the basics. Board members have a fiduciary duty to their association members. That duty supports board-promulgated rules that promote the health, happiness, and peace of mind of the majority of the members. Thus, rules can be adopted for different reasons. At times, a rule may be necessary under the circumstances. For example, say the local health department issues a special bulletin regarding a significant rise in coronavirus within a very limited geographic region in which an association has membership consisting of aged members. Likely, that association may reasonably adopt more stringent rules than an association located in an area with very few cases.

Clearly, if an association is going to restrict vendor and guest access or the rights of the members to use amenities that they otherwise have a lawful right to use, then the board better be able to create the necessary nexus between the situation at hand and rule at issue.

 

Rules Must Be Reasonable

In Hidden Harbour Estates v. Norman, 309 So. 2d 180 (Fla 4th DCA 1975), unit owners challenged a board-adopted rule prohibiting the use of alcoholic beverages in certain areas of the common elements of the condominium. The trial court found the rule invalid, holding that rules must have some reasonable relationship to the protection of life, property, or the general welfare of the residents of the condominium to be valid and enforceable. The Fourth District Court of Appeal, however, held that the rule was valid because the rule was reasonable. The Court explained that there is a principle “inherent to the condominium concept” that each unit owner must give up a certain degree of freedom in a condominium in order to promote the health, happiness, and peace of mind of the majority of unit owners. The Court concluded that the test for the validity of a rule is reasonableness. An association is not permitted to adopt arbitrary or capricious rules that do not relate to the health, happiness, and enjoyment of the unit owners. However, if a rule is reasonable, the association is permitted to adopt it.

 

Rule Validity

In Hidden Harbour Estates v. Basso, 393 So. 2d 637 (Fla 4th DCA 1981), the association sought to enjoin unit owners from maintaining a shallow well on their property. The Fourth District Court of Appeal noted that there are two categories of use restrictions: (i) use restrictions set out in the declaration of condominium and (ii) rules adopted by the board or the refusal of the board to allow a certain use when the board has the authority to grant or deny such use. The Court concluded that use restrictions set out in the declaration are “clothed with a very strong presumption of validity” because unit owners purchase their unit knowing of and accepting the restrictions to be imposed. However, rules adopted by the board do not enjoy the strong presumption of validity and must be “reasonably related to the promotion of the health, happiness, and peace of mind of the unit owners.” In this case, the board articulated three reasons for refusing to allow the unit owners to install a well on their property. However, the Court held that the there was no evidence to support the association’s articulated reasons for denial, and therefore the association failed to demonstrate a reasonable relationship between the denial of the application and the objectives which the association argued the denial would achieve. Because the board’s denial was not reasonable, it was held invalid.

 

Rules Cannot Contravene Declaration or Rights Inferable Therefrom

In Beachwood Villas Condominium v. Poor, 448 So. 2d 1143 (Fla 4th DCA 1984), unit owners challenged two rules adopted by the board of directors of the association which regulated unit rentals and the occupancy of units by guests during the owner’s absence. The trial court held that the rules were invalid because they exceeded the scope of the board’s authority. However, the Fourth District Court of Appeal reversed the trial court and held that the rules were within the scope of the board’s authority. The Court looked to the decision in Hidden Harbour v. Basso, and the two sources of use restrictions: those set out in the declaration of condominium and those adopted by the board. The Court noted that board-adopted rules are reviewed first by determining whether the board acted within the scope of its authority and second, whether the rule reflects reasoned or arbitrary and capricious decision-making.

 

The Court determined that a board-adopted rule that does not contravene either an express provision of the declaration or a right reasonably inferable therefrom will be found valid. In other words, if the board has the authority to adopt the rule, and the rule does not conflict with the declaration or any right reasonably inferable from the declaration, the board is acting within the scope of its authority to adopt the rule. In this case, the unit owners did not challenge the reasonableness of the rules, so the Court ended its analysis with the question of the board’s authority to adopt the rule and did not move on to the reasonableness considerations discussed in Hidden Harbor v. Basso. As the rules adopted by the board did not contravene either an express provision of the declaration or any right inferable therefrom, the Court held that the rules were within the scope of the board’s authority, and were, therefore, valid.

 

Remember, when the board publishes an agenda which provides rules will be considered for adoption, that if the rule governs a member’s use of their property or unit then it requires a 14-day notice to all members. The notice must also be posted conspicuously on the property 14 days in advance of the meeting. Rules affecting the common area and common elements only require the typical 48- hour board meeting notice. Of course, your community’s governing documents may also have requirements regarding rule adoption, and if so, they likely should be adhered to as well. After board adoption the rules need to be sent out to the entire community. In addition, homeowners’ association rules should be recorded in the county’s official records, too.

 

It is a given that as society progresses to normal, rules that were needed yesterday can become outdated today. Be sure to be in touch with your association’s lawyer regarding the continuation of any previously adopted coronavirus restrictions and any proposed new rules prior to board adoption to help ensure their continued enforceability.

 

The Kaye Bender Rembaum Team Remains Available To You and Your Community Association

The health and safety of your Community and all residents is very important to us.

We also realize that our clients have uncertainty and concerns around the continuing operation of your Community, and our team of attorneys will remain available to all of you during these times.

Be sure to check out our very useful and informative COVID-19 section on our website, which is updated regularly, as we continue to follow developments affecting community associations. You can visit it by clicking HERE.

 

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End of year Taxes for your property by RMS Accounting

End of year Taxes for your property by RMS Accounting

  • Posted: Jan 08, 2021
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End of year Taxes for your property

by RMS Accounting

End of Year Taxes:

While tax returns aren’t due until April, to minimize your tax burden the strategy of accelerating rental property expenses should be considered now, property owners, should start deducting these expenses this year could be more important than ever, especially if you’re affected by the new Affordable Healthcare Act tax. Under the Act, if your modified adjusted income exceeds $250,000 (filing jointly) then you’ll pay an additional 3.8% tax on any rental income or other passive income above that amount. Rental property expenses are deductible only in the year they are paid, so December is your last chance to pay for any rental property-related expenses that you want to deduct this year. Additionally, you can pay your expenses in advance, so consider paying in December some expenses due next year (such as a mortgage payment, property taxes, or utility bills) to offset this year’s income.

As far as rental income is concerned, don’t be tempted to defer rental income for December rents to next year. The Internal Revenue Service matches 1099s for commercial leases, and they want to see rental income match up with 1099s. While residential rental owners don’t receive 1099s from their tenants, many audits that CAP’s have been involved in where the IRS examined residential lease agreements and had issues with the rental owner declaring less than a full twelve months of income if the unit was occupied for the entire year. But what if you were on vacation for all of December and didn’t check your mailbox until mid-January? That’s still income for December.

It’s important to not make assumptions about rental income losses–several clients get burned because they thought they could deduct these losses. The problem is that rental income losses fall under the “passive income rule” which can be a complicated beast. Rental income is considered passive income, and under the rule, passive income losses can only be offset against passive income, which means you need to have another rental property that makes money or some other passive income source. The rule is different if your adjusted gross income is less than $150,000. The passive income rules are very complex and everyone has a different situation, so it’s critical that you consult with your tax advisor before you act on any assumptions.

 

Checklist: End of Year Taxes

 

Meet with your accountant to discuss end of year tax strategies.
Consider paying now expenses due next year to offset this year’s income.
Let your accountant know if you anticipate any rental losses next year, or if you’re planning on refinancing, buying, or selling rental property as these activities may have tax consequences that might be partially mitigated with informed planning.
If you formed an LLC or S-Corporation to hold your rental property, order 1099s now to send to your unincorporated vendors (to whom you paid more than $600) by January 31st–it can sneak up quickly.

We provide you with complete, timely reports that will manage your cash flow:

  • Accounts receivable aging
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  • Cash demand projection
  • Payroll tax reports
  • Cash balance reports
  • Other business tax reports
  • Balance sheets
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  • Income statements
  • Customized reports

You will be surprised at how much you can save. You can reduce many variable costs, office space, payroll taxes, employee benefits, equipment costs, software costs and the effort! Contact us for a free estimate of the cost savings for your business.

Year-end reviews:

Revisiting and evaluating insurance policies and rental regulations and laws is key to protecting your rental property investment. We recommend that rental property owners set an annual calendar reminder to review their insurance policies for proper and adequate coverage and check on new local ordinances affecting landlords.

Insurance policies and their respective coverage amounts change frequently. We have seen many owners move out of their property and convert it to a rental but forget to call their insurance provider to make sure their policy is updated from a primary occupant policy to a landlord policy. If an owner does not make this policy change then it is very likely a future claim will be denied for the wrong policy classification. The classification change to a landlord policy will likely result in a premium increase but without the proper classification the property owner is not adequately insured which, in the end, will be a much bigger price to pay.

City ordinances can change quickly and are difficult for distant and even local landlords to be aware of. While a local professional property manager should be able to help you with local ordinances, It is ultimately the property owner’s responsibility to make sure rental property is compliant with local city and county ordinances.

In addition to local ordinances, make sure you understand federal and state laws that impact rental property, such as fair housing requirements and your state’s landlord-tenants laws. Your property manager, if you have one, will be an important resource here. If you self-manage your rental property, consider joining a state or local landlord association, as these groups often have attorneys provide updates on changing laws as well as provide other benefits. Property Managers in South Florida can join forces with www.sfpma.com

While it might be a slower time for year for landlords and property management companies, the winter, especially December, can nonetheless get busy because of the holidays. However, it’s important to have a game plan for the coming year. Schedule a planning meeting to meet with key people, including any co-owners of your rental property or your property manager, if you have one, to address these issues:

 

Checklist: Planning for Next Year
Confirm annual or six-month rental property inspections are scheduled.
Review lease agreement template.
Review policies or “house rules.” Consider adding a policy addressing space heater safety. Adding a Pet Policy, we see many more tenants and owners with pets, along with service animals.
Review rents and consider an increase.
Discuss whether any significant repairs, such as re-roofing, need to be undertaken in the coming year.

 

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Start the new year off on a great foot? Use these tips to help improve the air you and your family are breathing every day.

Start the new year off on a great foot? Use these tips to help improve the air you and your family are breathing every day.

Start the new year off on a great foot? Use these tips to help improve the air you and your family are breathing every day.

Air Quality Assessors /  844-CALL-AQA

 

Unlike our skin or liver, which developed mechanisms to eliminate unwanted pollutants, the lungs didn’t develop an efficient mechanism to remove fine dust particles or block harmful gases from entering the bloodstream. I heard an explanation once that argued that because air pollution wasn’t abundant in the atmosphere until the past few hundred years, evolution didn’t have to “deal” with it (unlike UV or toxins like Benzo(a)pyrene).

 

  • There are dozens of pollutants and sources of pollution in residential (indoor) spaces, and their concentrations can be tens of times greater than in the ambient (outdoor) air. The composition of pollutants in the home space is varied, from pollutants that are typical of combustion processes such as nitrogen dioxide, pollutants emitted from electronic products such as flame retardants, to radioactive pollutants emitted from the earth (radon). Each of the pollutants has health impacts on humans, anchored in a large scientific base. But the combinations of those pollutants raises the question of whether there are synergistic effects, especially with long term exposure.

 

  • Many people are not aware of the true quality of the materials and products used in new furniture or carpets they are purchasing. The materials used in these common household goods may emit toxic chemicals into the home environment, increasing indoor air pollution dramatically over a short and long period of time. Even an action that seems trivial, such as cooking or printing, exposes us to dozens of toxic organic compounds and respirable particles. Today there is broad scientific agreement on the connection between the exposure to residential air pollutants and to the appearance of respiratory diseases in children and adults. Therefore, there is a real need to raise awareness of indoor air quality and the technologies to improve it.

 

  • There are three major strategies for enhancing air quality in the home space.
    1. The first strategy is to prevent or control the formation of contaminants – for example, by reducing processed wood products and carpets in the home.
    2. The second strategy is to ventilate (actively or passively) the home space. However, there are cases where the outdoor air quality is worse than that indoors, or the weather conditions does not permit.
    3. The use of technological products to improve air quality is needed when the first two strategies are not enough. Air-conditioning and systems have great potential for improving air quality at home if we know how to plan and adapt it to existing air purification technologies. In my view, advanced air purification technologies need to be integrated as standard in residential air-conditioning systems.

 

Indoor air pollution is a concrete problem in both new and old buildings throughout the world. Rachel Carson, in her book, Silent Spring, says, “For the first time in the history of the world, every human being is now subjected to contact with dangerous chemicals, from the moment of conception until death.” This statement summarizes the situation for residential indoor air quality.

We all take risks in everyday life: driving in cars, travelling by airplane, biking to work, crossing a busy street, playing extreme sports, to name a few. However, perhaps more risky to our health is a risk we aren’t even knowingly taking, an that is our exposure to environmental pollutants, which carry various degrees of risk. Among these, there are some risks that cannot be avoided, some which are hard to avoid because they are so ingrained in our daily routines, and there are those that we could avoid, if we only had the knowledge.

In-home air pollution is exactly the kind of health risk that we can avoid and minimize our exposure to, if we have the knowledge and information available. The combination of the three strategies above appears to be the most effective solution for reducing the exposure to these pollutants and the harmful health effects of their exposure.

 

 

Air Quality Assessors Video Promotion from Air Quality Assessors on Vimeo.

Find out more about Air Quality Assessors and contact Steve Berman / steve@airqualityassessors.com

 

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