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

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

UPDATE:

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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PENNY WISE POUND FOOLISH By Eric Glazer, Esq.

PENNY WISE POUND FOOLISH By Eric Glazer, Esq.

PENNY WISE POUND FOOLISH

By Eric Glazer, Esq.

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

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

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

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

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

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

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

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

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

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The Start of the Fairy Tale: Creation of the Homeowner Assistance Fund by Axela-Tech

The Start of the Fairy Tale: Creation of the Homeowner Assistance Fund by Axela-Tech

The Start of the Fairy Tale: Creation of the Homeowner Assistance Fund 

by, Dee Rowe, CACM, Contributing Author

Once upon a time, benevolent Prince Sanders was afraid that people would lose their homes because they were unable to pay their mortgages or HOA fees. You see, a nasty respiratory disease was ravaging the kingdom and all surrounding kingdoms. Workers not deemed essential were forced out of work to limit the spread of the disease. The price of essential goods and services skyrocketed. Even once a “return to work” was announced, for many business owners and employees there was no work to return to. The kingdom was in crisis.

Since he was Chairman of the kingdom’s Senate Budget Committee, he and 11 others authored theAmerican Rescue Relief Act, which included a Homeowner Assistance Fund designed to keep those people from losing their homes and keep their public utility services active. The problem was, nobody told the homeowners, or those responsible for the communities they lived in.

Meanwhile, in a Far-Off Corner of the Kingdom

Mary was contrary, and could you blame her? She was a single mother with three small mouths to feed. Her ex-husband ran off with Sally years ago and now lived in a cottage by the sea selling seashells. That left Mary to care for the gardens ​of silver bells, cockleshells, and primroses all in a row. There was a time before the pandemic when her business thrived. Weddings were large, formal affairs, and nobody’s flowers were prettier than Mary’s. Brides paid a pretty penny for her services. But now weddings were smaller and more intimate. Because everybody’s budgets were stretched tight, brides cut expenses wherever they could. That included Mary’s flowers.

With the sun sinking on the horizon, Mary put the gardening tools in the shed and trudged into her small house. The children would be hungry, and someone had to feed them. Opening the nearly bare cupboard, she groaned. Once again, they would be eating beans and rice. As she measured the rice, her hand scraped the bottom of the barrel. Even beans and rice would soon be a luxury. Forcing a brave face, she served the children dinner and busied herself with chores while they ate. She ate their leftovers to make sure they got enough. Her stomach growled and grumbled, but she was used to ignoring that. She’d been doing so for a couple of years, ever since the virus started spreading.

Before she put the little ones to bed, she walked to the end of the driveway to get the day’s mail. Inside the mailbox was another notice from the HOA about her missed payments. Tears welled up in her eyes. How was she supposed to pay when there wasn’t enough to eat, and every penny went toward keeping the bank from taking her home? Now the association was threatening to take her home too. What would they do then? She wasn’t eligible for bankruptcy, because she’d had to file for one after her divorce.

Hands shaking, she placed the notice on the kitchen table and tucked her children into bed, noticing as she did so that all their nightclothes were threadbare and too small. Once she was back in the kitchen, she picked up the notice and read it again. “Due to the non-payment of assessments, your account has been referred to an outside agency for collections. Please contact them at once to avoid foreclosure.”

This time, tears did more than well up, they spilled down her cheeks and left spots on the table. With her head in her hands, she sobbed into the night until she fell asleep right there in the kitchen. Her dreams were troubled and chaotic, with visions of fire-breathing dragons scorching her home and beautiful gardens to the ground.

They Aren’t Dragons, They’re Heroes

The next morning, after the children ate their oatmeal and headed off to school, Mary called the collection company the HOA referred her case to. She braced herself for battle, recalling the fire-breathing dragons from last night’s anxiety-fueled dreams. Much to her surprise, that mental armor turned out to be unnecessary.

S​he spoke with a friendly and helpful representative from Axela Technologies, who was sympathetic when Mary described her financial position. The representative suggested that Mary try applying for something called the Homeowner Assistance Fund (HAF) because an online map showed that her part of the kingdom may have funds available to cover the mortgage, utility costs, and even HOA fees since her hardship was caused by the pandemic and started after January 21, 2020. The helpful rep also arranged it so Mary would not lose her home while waiting for a decision from the HAF. She was so relieved she began to cry over the phone because she felt hope for the first time in years. “You’re my hero”, she told the Axela employee.

I​t Isn’t a Fairy Tale but a Well-Kept Secret

As she worked in her gardens that day, Mary wondered why she’d never heard of the HAF before. There were probably others like her; hardworking people who had no savings or credit to see them through when the pandemic shut the kingdom down. People who had spent the years since the return to work trying to find work or customers. People who were desperate to keep the homes that they loved and that kept their families safe and warm. Good people who wanted to pay their HOA fees but had to choose between that and feeding their children.

After waiting as patiently as she could, Mary got an answer from the HAF. Hands trembling, she opened it and read the decision over the phone to that helpful representative from Axela Technologies she had first spoken to. “Your application has been approved.” Once again, she was crying, this time tears of joy.

Later that day, Mary wrote a letter to the board of directors of the HOA thanking them for working with anethical company like Axela Technologies, and not a predatory collection service. That letter was the first communication the board received from her that wasn’t contrary.

For a real-life collection fairy tale like this, contact us at Axela Technologies today. We offer creative solutions, not threats and ultimatums.

 

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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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Hurricane Season is almost here! – Have you had your storm drains inspected yet?

Hurricane Season is almost here! – Have you had your storm drains inspected yet?

Hurricane Season is almost here!

Hurricane season runs from:

June 1, 2022 through November 30, 2022

Have you had your storm drains inspected yet?
During a hurricane or tropical storm, it’s common for an area to experience several inches of rainfall and catastrophic wind over a very short timeframe. All of that excess debris and sediment from a hurricane can cause blockages in our stormwater systems, hindering them from operating properly.
Hurricanes are uncontrollable, but what we can control is taking the proper precautions and steps to make sure our stormwater systems are ready for the upcoming season!
Contact us today at 954-382-9766 or info@allstatemanagement.com to talk to one of our Stormwater Specialists!

STORMWATER SYSTEMS –
PREVENTS FLOODING

Storm Drain Cleaning in Broward County and South Florida

Allstate Resource Management’s team of experts specializes in storm drain cleaning in Broward County and storm drain cleaning in South Florida. We will keep your stormwater systems and storm drains clean and operating properly and in compliance with government standards. Various government agencies in Florida have specific regulations regarding the maintenance of these complex systems. Non-compliance can result in fines and unnecessary expenses. We can help ensure that your stormwater systems are working effectively and comply with Florida’s regulation standards. Our team are experts at storm drain cleaning and will make sure your stormwater systems are working properly. Stormwater systems accomplish many vital functions. Their primary purpose is to prevent flooding by rapidly removing surface water. A properly functioning drainage system also helps to maintain water quality, capture pollutants and contributes to balancing Florida’s precious drinking water supply.

 

CONTACT US TODAY TO FIND OUT HOW WE CAN HELP YOU!
CALL (954) 382-9766

CONTACT US

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Ft. Lauderdale city officials are expected to approve raising sea walls by just over a foot to meet a county mandate. by SRI Consultants, Inc.

Ft. Lauderdale city officials are expected to approve raising sea walls by just over a foot to meet a county mandate. by SRI Consultants, Inc.

Tonight’s the night! Ft. Lauderdale city officials are expected to approve raising sea walls by just over a foot to meet a county mandate.

The move will mean dilapidated sea walls will have to be replaced, and new ones will be required to be at least 5 feet high to help protect against future tidal flooding.

 

SRI Consultants, Inc.

Was established to fulfill the unique needs of structures in coastal areas such as South Florida. The team’s rare combination of expertise in Civil/Structural Engineering and Corrosion Engineering makes SRI unique in providing concrete rehabilitation/protection services related to condominiums and other near-sea structures. SRI also provides Concrete Diagnostic testing (Ground Penetrating Radar, monitoring corrosion of reinforcing steel in concrete structures) to its clients or other engineering firms.

 

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What’s in your walls? Floors? Ceilings? Do you know? by James Terry of GreenTeam | Building Services

What’s in your walls? Floors? Ceilings? Do you know? by James Terry of GreenTeam | Building Services

What’s in your walls? Floors? Ceilings?

Do you know? Or do you think you know?

I call this lack of systems knowledge. Here’s why it’s important.

Every piece of your building is made up of systems. Each system has pathways and pipes that make that system whole. I love when people generalize the term “plumbing”, when there are really multiple facets of systems that make up the plumbing.

There are domestic water systems, storm water systems, sanitary systems, etc.

Now, with that said, are you waiting until you have a major problem with your system to
Look at it? Like a don’t ask, don’t tell type of scenario?

Problem is, these systems almost always find themselves in peculiar locations, level 5 finished walls, columns with marble on them, walls with expensive finishes etc. Like when the kitchen of the tower club is located above the law offices really fancy conference room. (More on that story later).

The design of these systems is like the veins in your body, they hide discretely under the surface of your skin, and as long as everything is running smooth, no reason to investigate or research right?

Wrong.

Each one of these systems has a life expectancy for failure, and the longer the life, the higher the risk. When you wait till the system is failed, it usually always ends up
Costing more in the end.

For this condo in Fort Lauderdale, they unfortunately deferred maintenance, waited until it was too late, and the entire system needed to be replaced, as an emergency.

Had a thorough camera work up and report been done 5 years ago, they could of budgeted for this, and been more prepared.

As the story goes, just because you can’t see it, doesn’t mean it isn’t there. Underground utilities are a part of your buildings critical infrastructure, you must prioritize it, or it will bite you in the ____.

GreenTeam Service Corporation specializes in commercial plumbing service and retrofit. Our markets served include Healthcare, Hospitality, Class A Office, Industrial, education, and institutional.. Our relentless communication, and dedication to customer service, is what keeps us ahead of the competition. Our focus is solely on service, and providing our clients with the professionalism they deserve.
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Hurricane Season is almost here! – Have you had your storm drains inspected yet?

Hurricane Season is almost here! – Have you had your storm drains inspected yet?

  • Posted: Mar 22, 2023
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  • Comments: Comments Off on Hurricane Season is almost here! – Have you had your storm drains inspected yet?
Hurricane Season is almost here!
Hurricane season runs from:
June 1, 2022 through November 30, 2022
Have you had your storm drains inspected yet?
During a hurricane or tropical storm, it’s common for an area to experience several inches of rainfall and catastrophic wind over a very short timeframe. All of that excess debris and sediment from a hurricane can cause blockages in our stormwater systems, hindering them from operating properly.
Hurricanes are uncontrollable, but what we can control is taking the proper precautions and steps to make sure our stormwater systems are ready for the upcoming season!
Contact us today at 954-382-9766 or info@allstatemanagement.com to talk to one of our Stormwater Specialists!