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Find Blog Articles for Florida’s Condo, HOA and the Management Industry.
Tags: Engineering Articles, Florida Building Inspections
I feel like I handled a thousand annual meetings in the last month, flying from one to the other. When running the meetings, and depending upon whether the association is a condominium or HOA, it is important to know if the person running for the board, or even the winner of the election, is eligible to serve because they owe money to the association.
Let’s start with condominiums first, Florida Statute 718.112 (2)(d) states:
A person who has been suspended or removed by the division under this chapter, or who is delinquent in the payment of any assessment due to the association, is not eligible to be a candidate for board membership and may not be listed on the ballot.
So, in a condominium, the person’s eligibility to run and initially serve on the board is decided when the owner submits their notice to be a candidate, and that is no less than 40 days before the election. If at that time, the owner is delinquent in any assessment their name cannot be printed on the ballot and sent to the unit owners. On the night of the election the association need not worry if anyone is delinquent and cannot serve because their name was already excluded from the ballot.
The law in a Florida HOA is much different. Florida Statute 720.306(9)(b) states:
A person who is delinquent in the payment of any fee, fine, or other monetary obligation to the association on the day that he or she could last nominate himself or herself or be nominated for the board may not seek election to the board, and his or her name shall not be listed on the ballot.
Lots of differences between the two statutes here. In a condominium, you can only be prevented from being placed on the ballot if you owe an assessment. In an HOA, your name can be prevented from being placed on the ballot if you owe any fee, fine or other monetary obligation to the association; a far more restrictive provision in an HOA.
In addition, remember that in most HOAs, nominations are taken from the floor on the night of the election. That is the “day that he or she could last nominate himself or herself or be nominated for the board.” Therefore, on the night of the election, we need to know if any of the proposed nominees owe any fee, fine or other monetary obligation. If so, their name cannot be accepted into nomination. They cannot run.
ONCE A DIRECTOR BECOMES 90 DAYS DELINQUENT
The Condominium Act states:
718.112: Director or officer delinquencies.—A director or officer more than 90 days delinquent in the payment of any monetary obligation due the association shall be deemed to have abandoned the office, creating a vacancy in the office to be filled according to law.
The Homeowners Association Act states:
720.306(9)(b) A person serving as a board member who becomes more than 90 days delinquent in the payment of any fee, fine, or other monetary obligation to the association shall be deemed to have abandoned his or her seat on the board, creating a vacancy on the board to be filled according to law.
Tags: Condo and HOA Law, Management News, Members Articles
Attorney Eric Glazer and co-host Karen Curtis will be taking your calls and YouTube questions on whatever topic you need answers to or whatever you need to get off your chest. Call us at 877-850-8585 during the show or chat with us on YouTube Live Chat. Condo Craze & HOAs Live on YouTube
Sunday@11am on YouTube! Link to the live stream
Tags: Board of Directors, Condo and HOA, Management News
With respect to item 7 above, Kaye Bender Rembaum has become aware of at least one service provider that will bring in engineering professionals to make a physical inspection of the entire community to assess the conditions and establish a record for all such conditions prior to any storm. The assessment will also identify conditions that may have resulted from Hurricane Irma from 2017, for which claims were not made or even found and may still be claimed. In many instances, conditions of significant damage may not be readily apparent to the layperson, but to a qualified professional, very obvious. Quite often, such an inspection can result in substantial additional insurance claims for the association to recover. It is not unusual for an insurance carrier to reject initial claims following a major storm, citing to maintenance or pre-existing conditions as the basis for the denial. The team of experts performing the assessment has assisted several communities overcome such rejections and ultimately receive additional settlement proceeds to make further repairs to the premises. While there is no guaranty of such a result, without making such an assessment, the board will never know and certainly have no further recovery. Most importantly, this inspection and assessment is undertaken at no charge to the association by this company, and with no obligation to the association!
Tags: Condo and HOA Law, Members Articles
Cohen Law Group would like to remind all Property Managers and CAMs that our firm has handled thousands and thousands of property damage insurance claims in Florida. We have decades of experience handling hurricane claims that have been denied, delayed, or reduced.
If you are unsure if your property sustained damage as a result of Hurricane Idalia you should ask for an inspection by a qualified contractor, estimator or building inspector to assess whether hurricane-force winds damaged or compromised the roofing system and building envelope. Many companies offer this initial inspection free of charge. Given the complexities of a large loss claim, consider consulting with an attorney experienced in handling commercial insurance claims for condominiums and homeowner’s associations.
Here’s more information on how we can help you:
Cohen Law Group is certified through the state of Florida for Property Manager and CAM Continuing Education Credits/Classes. We have a one to three-hour CE class called “A CAMs/Property Managers Guide to Property Damage Insurance Claims”
We can schedule a free lunch and learn with your CAMs and will provide an overview of our suggestions and strategies as well as some examples of our vast experience with Residential Property Damage and Commercial Large Loss.
If your residential, commercial, or industrial properties have property damage, our Insurance Claims Attorneys can help with everything from A-Z on hurricane claims.
Please call us today at 850-318-7474
immediately after a hurricane:
You have 1 year from the date of loss to report the claim. Please do not hesitate in reporting the claim immediately as you are aware there is storm damage. Believing the damages are below your deductible is not a defense to this and the insurance company will use every day you wait against you later.
Thoroughly document all emergency repairs before and after they are completed. Insurance companies will try to get out of paying for these services if they believe they do not have sufficient information.
If you are displaced from your home or property, please keep all invoices and receipts showing costs that you incur. Likewise, if you have any damaged personal property, please take photographs of it before you throw it away.
Insurance companies cannot cancel your policy while you have an open claim. You should speak to an attorney to understand your rights. Insurance companies will routinely request that you sign documents and give statements to them that can and will be used against you later.
489.147 Prohibited property insurance practices.—
(1) As used in this section, the term:
(a) “Prohibited advertisement” means any written or electronic communication by a contractor which encourages, instructs, or induces a consumer to contact a contractor or public adjuster for the purpose of making an insurance claim for roof damage, if such communication does not state in a font size of at least 12 points and at least half as large as the largest font size used in the communication that:
1. The consumer is responsible for payment of any insurance deductible;
2. It is insurance fraud punishable as a felony of the third degree for a contractor to knowingly or willfully, and with intent to injure, defraud, or deceive, pay, waive, or rebate all or part of an insurance deductible applicable to payment to the contractor for repairs to a property covered by a property insurance policy; and
3. It is insurance fraud punishable as a felony of the third degree to intentionally file an insurance claim containing any false, incomplete, or misleading information.
Harvey V. Cohen, President
At Cohen Law Group, It’s About Justice!
It’s more than a slogan, it’s our firm’s mantra. We are zealous in protecting your rights. We offer 24-hour availability through our answering service. Call us today.
(850)318-7474
Members of SFPMA – https://sfpma.com/listing/cohen-law-group/
Tags: Condo and HOA, Insurance, Management News, Members Articles
On August 24th at 12 Noon (Webinar)
Est, Allison Hertz, Esq., BCS of KBRLegal will teach “Conflicts of Interest: What You Need to Know”
this webinar hosted by GRS Community Management. It’s free to enroll and happens via Zoom.
Jeffrey Rembaum, Esq. is a 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.
The right of the people to carry and bear arms without governmental infringement is a right which stems from both the United States Constitution and the Constitution of the State of Florida. The State of Florida recently adopted new gun legislation, effective July 1, 2023, which allows the everyday citizen to carry a concealed weapon without first obtaining a concealed weapons permit. This raises interesting questions for community associations such as, is the right to carry a concealed weapon absolute? Can a community association adopt a rule that prohibits the carrying of concealed weapons in the clubhouse or other common area facilities?
Before we get too far in our analysis, it is important to point out that the intent of this article is not to advocate for gun control or the right to carry. Rather, the intent of this article is to examine the rulemaking authority of a board of directors of a community association to prohibit concealed weapons in the clubhouse and other common areas. In short, is it possible for a community association to adopt such a rule? Yes, subject to the cautions and explanations explained below. Is the adoption of such a rule risk free? No!
As the starting point, in order for a board-made rule of this nature to have validity, we must examine whether it violates either the United States Constitution or the Constitution of the State of Florida. As to when constitutional protections apply within a community association, this is an interesting question. In prior cases, courts have found that recorded covenants restricting home ownership based on race will subject the covenants to a constitutional examination, and in the end, such covenants were deemed to violate the equal protection clause of the Fourteenth Amendment to the United States Constitution.
Another method by which courts may find application of constitutional protections to community associations is if there is significant governmental action associated with the community association. For example, an argument would exist that if a community association were built with federal monies, the covenants of such a community association would be subject to all the protections afforded by both the United States Constitution and the Constitution of the State of Florida. Often, multiple community associations that exist within a sprawling master association are built in community development districts (CDD). The CDD is a quasi-governmental entity established to govern and control what would otherwise be the common areas of the master association. The creation of the CDD allows many of the hard costs associated with the community’s build-out, such as the roads and drainage systems, to be immediately passed on to the first-time home buyers. By utilizing a CDD, long-term bonds can be issued, which are paid back through ad valorem tax obligations allowing the costs to spread out over a significantly longer period of time. As quasi-governmental entities, constitutional protections which limit powers of government would likely apply to CDDs. Therefore, should a CDD adopt rules to prohibit concealed weapons in the common areas, such a rule would likely be found to violate constitutional protections. However, the same analysis is not applicable if the community association itself adopted such a rule.
It should be remembered that courts have long held that owners give up certain individual rights and liberties when living in a community controlled by a community association. In 2002 the Florida Supreme Court held, in Woodside Village v. Jahren, 806 So. 2d 452 (Fla. 2002), that certain individual rights must be compromised when one chooses to live in a condominium association (and by analogy, in a homeowners’ association, too). But, on occasion courts have found that certain constitutional protections apply within a community association; however, such application is somewhat rare.
Thankfully, we do have some limited guidance. In 1989 the Florida Supreme Court held, in Quail Creek POA v. Hunter, 538 So. 2d 1288 (Fla. 2d DCA 1989), that neither a homeowners’ association’s recording of its covenants in the public records, nor the enforcement of its covenants in state court, created a sufficient nexus to evidence “state action” such that the First Amendment and the Fourteenth Amendment of the United States Constitution would apply. By analogy, such logic could be applied to defending the right of a community association to adopt a rule prohibiting concealed weapons in the clubhouse. Thus, there is no reason to believe that such arguments would not also apply to the application of the Second Amendment of the United States Constitution within community associations. That said, it would not at all be surprising for an owner to challenge such a rule; so, any association that adopts such a rule should be prepared to be a possible test case, which could have national implications associated with it.
Let us assume that the board understands and accepts such a risk and is ready to move forward to adopt a rule prohibiting the carry of concealed weapons in the clubhouse. Certainly, we recommend that counsel for the association be consulted prior to adopting these types of rules. For the purposes of our analysis, let us also assume that the community association at issue does not have a sufficient nexus to the federal or state governments that would, in and of itself, render such a rule unconstitutional. Under these circumstances, the analysis can then shift to the ordinary rulemaking criteria necessary to withstand judicial challenge, as follows:
Of course, even if the association adopts such a rule, enforceability is an entirely different issue. Assuming the association is not using some type of full body scanner, then so long as the possessor of the concealed weapon does not brandish the weapon, and thus it remains fully concealed, no one will be the wiser. In addition, such a rule would not apply to certain individuals who have an absolute right to carry a concealed weapon, subject to very few limitations, such as an off-duty police officer.
As an aside, just because a person may not need to have a concealed weapon permit to carry a concealed weapon, this does not mean that the still-available concealed weapon permit does not have value. It certainly does when it comes to traveling outside the State of Florida to one of the many states, over 26, that have reciprocity with Florida, meaning that the other states recognize Florida’s concealed weapons permit. With that in mind, obtaining a concealed weapons permit may still make sense.
While a properly drafted rule prohibiting guns in the clubhouse stands a decent chance of validity, remember that even if your association
i) fully analyzes whether it has any type of federal governmental nexus which would provide for clear application of constitutional protections and such analysis is answered in the negative, ii) meets the rule adoption criteria listed above, and iii) consults with the association’s lawyer who helps draft such a rule, the association could still find itself as a defendant in a lawsuit seeking to have such a rule invalidated by the court.
Last week was a primer on how foreclosures generally work and how banks get off the hook when they get back a unit when they foreclose on an owner’s unit or home. We learned that the banks are protected by the law because they only owe a few bucks to the association when they get title to the unit or home despite the fact that the owner owes a fortune to the association. That’s called a “safe harbor” and it’s provided to the banks because the banks claim that if you make them responsible for paying unpaid assessments, they simply won’t loan money to buy a condo or a home in an HOA.
But there is some good news……….suppose the bank does not buy the unit at their foreclosure sale and a third party winds up becoming the successful bidder and the owner? What does that new owner owe the association if that unit owes thousands to the association in unpaid assessments? And the answer under the law is EVERYTHING! They owe it all. Florida Statute 718.116 states:
Additionally, a unit owner is jointly and severally liable with the previous owner for all unpaid assessments that came due up to the time of transfer of title.
So, when a bank forecloses on a unit, or when the association forecloses on a unit, the association hopes and prays that a third party purchases the property at foreclosure sale because that guy owes everything to the association. UNLESS………………….
Remember last week that I said that some of you have language in your governing documents that allows the bank to get off the hook even though they would owe money to the association if they wind up foreclosing and owning the property? Well…..some of you have language in your governing documents that allow third party purchasers off the hook if they buy the property at a foreclosure sale. So…..even though the association gets lucky and a third party purchases the property at foreclosure sale, your own docs kill you and lets the third party purchaser off the hook. They owe nothing. Disaster.
So……over the past two weeks we learned that it is vital for the board to check their governing documents to make sure that neither the bank nor a third party purchaser is let off the hook should they purchase a unit or home in your community. Make sure your docs don’t kill you. If they do, amend them immediately!!!!!!
What can taxpayers do?
Start by letting the payment originators know to mark the payments that are not business related (should not be income and subject to tax) as personal on the chosen platform. If you end up picking up the lunch tab and being reimbursed through Venmo or Zelle be sure to remind your friends to mark the transaction as non-business. This also holds true for gifts, reimbursements, and other non-taxable payments.
At tax time be sure to share these documents, like all tax forms you receive, with your tax professional, so they can see that income reported on 1099-Ks is properly reported on your tax return.
One thing we as tax professionals are sure of is that these 1099-ks are going to generate a lot of confusion for taxpayers in addition to a lot of IRS notices that will need to be delt with long after the 2023 returns are filed.
Find other fantastic articles and Accounting information:
There would be no Condo Control without Brian Bosscher. Brian had no professional property management experience, but he did understand the frustrations that plague condo communities after purchasing a unit in 2006. Looking to help improve operations, Brian joined his building’s finance committee immediately. He started volunteering on the Board of Directors as Treasurer the following year, and then became the Board President.
It was through volunteering that he learned about the challenges and roadblocks that property managers encounter on a day-to-day basis, and witnessed the inefficiencies that prevented them from reaching their goals. It was this experience that inspired Brian to build a long-term solution, and Condo Control was born.
When residents pay their fees or fines, these payments are documented under accounts receivable (AR). Vendor credits are also logged under AR. This element of accounting tracks the money coming into the corporation or association.
But like most things related to community finances, it’s much easier to talk about accounts receivable than manage them. Collecting payments is always a challenge because they come in at different times, and in different formats. Documenting this information is equally tedious and time consuming.
While we can’t eliminate this responsibility for you, we can suggest some ways to simplify the AR workflow for you and your team.
Table of contents
Without structure, rules, or established expectations, anything goes. But spontaneity isn’t exactly ideal when you’re trying to get money from 200 owners. That’s why it is so important to implement consistent billing practices. Not only does this create a routine for you and/or your staff, but residents aren’t left wondering when they might receive their invoices or how they should make payments.
By creating a sustainable AR workflow, condos and HOAs will find that late payments become less common. By sending billing statements in the same format, at the same time each month, your residents become familiar with a routine. As a result, they’ll become more accustomed to making payments the same way at the same time.
Online banking has become almost ubiquitous in North America. Mobile apps make this option accessible to all age demographics, and the convenience cannot be overstated. So doesn’t it make good sense to offer online payment options to residents?
Not only does it make the payment process far easier for the people who live in the community, but it creates less work for you.
Teams that are still documenting accounts receivable payments manually are more prone to making mistakes. Between writing down payments, updating balances, and creating receipts, it’s understandable why someone might forget to fill in a field or add an extra “0.”
But even a small mistake can lead to bigger problems, and can even create conflict between residents and staff. Furthermore, time is wasted when someone has to go back and review the numbers.
Then there’s the issue of storing and locating physical records. Paper can easily be misplaced or lost, and aside from the obvious problems associated with losing documents, missing information can lead to costly compliance violations.
Electronic billing and online payments reduce manual data entry work for staff, and create records automatically. If you decide to use a cloud-based system, you’ll have the ability to access records from any computer. That way, you aren’t tied to the office.
It’s important to note that not every resident will want to make online payments. Your condo or HOA could install a secure lockbox so that you don’t have to arrange a meeting with these individuals to receive a payment on time.
With a digital AR system, you can also create automations to bypass some of the most tedious AR tasks. This typically includes email automation (late payment reminders, confirmation of payment) as well as sending out invoices.
A cloud-based AR system ensures that anyone who needs access to accounts receivable information can get it, no matter where they are working from. Conversely, when team members have to wait for information because it is siloed off, it slows down the entire process.
Inevitably, there will be residents who are consistently late with payments, or who avoid them altogether. Instead of having to figure out what to do next each time this happens, follow the condo or HOA’s rules/ procedures laid out in the governing documents.
Make sure all actions are in accordance with local laws. For example, you are probably required to give residents written notices and a reasonable amount of time to pay fees before more severe actions are taken.
Corporations/associations do have the power to pursue residents for unpaid fees, and to recover any legal expenses incurred while trying to collect money owed from delinquent owners.
These are some of the actions that communities are permitted to take while trying to secure outstanding fees:
Accounts receivable is an ongoing responsibility that requires a great deal of time and resources. The less you and your team have to do by hand, the happier you’ll be.
It is recommended that condos and HOAs look into AR software to simplify and speed up workflows. The money you invest in this solution will be less than the costs associated with conducting this process manually. Not only can it help keep processes more consistent, but you will probably find that you make fewer errors.
Your time is valuable; spend it wisely.
Tags: Management News, Management Tools, Members Articles
All of the tax professionals at RMS Accounting are Enrolled Agents with over 75 years of combined experience helping taxpayers resolve tax problems and to pay the lowest tax allowed by law.
SFPMA works throughout the State of Florida, we are a multi-member organization for the Condo, HOA and Property Management industry. Through knowledge based Articles, Events and our Members Directory, Clients find the right information to make an informed decisions for their Florida properties.