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Can Political Flags Be Flown? Q&A by DAVID G. MULLER / Becker

Can Political Flags Be Flown? Q&A by DAVID G. MULLER / Becker

  • Posted: Oct 22, 2020
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Can Political Flags Be Flown? Q&A

by DAVID G. MULLER / Becker

Q: I went on a walk in my community and saw at least 8 homes flying either Trump or Biden flags.  Is it legal to fly a political flag on a home located in a homeowners association? I.B.

A: Sections 720.304(2)(a) and 720.3075(3) of the Florida Homeowners Association Act specifically permit the flying of the US flag and other types of governmental flags, including flags of the various military branches.  These statutes do not address other types of flags, such as political flags.

The governing documents for some communities prohibit owners from flying non-exempt flags, such as political flags or flags with sports team logos.  There is an open and rather complicated legal issue as to whether it is an infringement of a homeowner’s First Amendment free speech rights to restrict political speech.

The First Amendment only applies by its terms to Congress, and, by virtue of the Fourteenth Amendment to the Constitution, to the states and their local governments. In legal jargon, “state action” is required before constitutional rights come into play.  There are several Florida cases which have held that a community association is not a state actor.

Your association’s attorney should be able to determine if these political flags are indeed regulated by the governing documents, and if so, guide you through the constitutional law analysis that is part of deciding your options.

 

Q: Your February 2020 column addresses the cap on transfer fees for condominium associations.  Is there a similar cap for homeowners associations? D.P.

A: No.  My February 2020 column referenced Section 718.112(2)(i) of the Florida Condominium Act, which states that no charge shall be made by a condominium association in connection with the sale, mortgage, lease, sublease, or other transfer of a unit unless the association is required to approve such transfer and unless a fee for such approval is provided for in the declaration, articles, or bylaws. Any such fee (in the condominium association context) may be preset but may not exceed $100 per applicant other than husband/wife or parent/dependent child, who are considered one applicant.  There is no similar provision found in Chapter 720 of the Florida Statutes, the Florida Homeowners Association Act.

 

Q: I am considering purchasing a home in a community with a homeowners association, but I have been told that there is a “capital contribution” fee of $1,500 charged to all purchasers.  Is such a fee legal? T.F.

A: Sometimes referred to as a “flip tax”, these charges are not uncommon in the homeowner association context. There is neither authority for nor prohibition on this type of fee in the law applicable to homeowners’ associations (the condominium law does address this issue).  If the authority to charge the capital contribution fee is contained in the appropriate governing documents, the prevailing view in the legal community is that such charges are legally valid.

 

 

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2020 Florida Constitutional Amendments by KBR Legal

2020 Florida Constitutional Amendments by KBR Legal

  • Posted: Oct 15, 2020
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2020 Florida Constitutional Amendments

What You Need To Know Before Voting 

When voters go to the polls on November 3, 2020, there will be six constitutional amendment proposals on the ballot. This article contains a brief discussion of the amendments. In order to adopt each amendment, it must be approved by 60% of voters casting a ballot. We take no position on any of the amendments, and simply wish to provide our readers with a summary of each proposed amendment. The ballot title and summary of each amendment, as same will be listed on the ballot, is provided, and a brief explanation follows.

 

 

Amendment 1: Citizenship Requirement to Vote in Florida Elections

This amendment provides that only United States Citizens who are at least eighteen years of age, a permanent resident of Florida, and registered to vote, as provided by law, shall be qualified to vote in a Florida election. Because the proposed amendment is not expected to result in any changes to the voter registration process in Florida, it will have no impact on state or local government costs or revenue. Further, it will have no effect on the state’s economy.

 

Discussion:

Amendment 1 amends the language of Article VI of the Florida Constitution. Currently, Article VI provides that “Every citizen of the United States who is at least eighteen years of age and who is a permanent resident of the state, if registered as provided by law, shall be an elector of the county where registered.” This amendment revises the language of Article VI to provide that “Only a citizen of the United States…” can vote. As currently drafted, the language of Article VI bars non-citizens from voting.

  • Proponents argue that the language change is necessary to clarify who is not permitted to vote, and to stimy any efforts to give voting rights to non-citizens in local elections.
  • Opponents argue that the amendment is unnecessary as the language of Article VI of the Florida Constitution already limits voting to citizens.

 

Amendment 2: Raising Florida’s Minimum Wage

Raises minimum wage to $10.00 per hour effective September 30th, 2021. Each September 30th thereafter, minimum wage shall increase by $1.00 per hour until the minimum wage reaches $15.00 per hour on September 30th, 2026. From that point forward, future minimum wage increases shall revert to being adjusted annually for inflation starting September 30th, 2027. State and local government costs will increase to comply with the new minimum wage levels. Additional annual wage costs will be approximately $16 million in 2022, increasing to about $540 million in 2027 and thereafter. Government actions to mitigate these costs are unlikely to produce material savings. Other government costs and revenue impacts, both positive and negative, are not quantifiable.

 

THIS PROPOSED CONSTITUTIONAL AMENDMENT IS ESTIMATED TO HAVE A NET NEGATIVE IMPACT ON THE STATE BUDGET. THIS IMPACT MAY RESULT IN HIGHER TAXES OR A LOSS OF GOVERNMENT SERVICES IN ORDER TO MAINTAIN A BALANCED STATE BUDGET AS REQUIRED BY THE CONSTITUTION.

 

Discussion:

Amendment 2 would increase Florida’s minimum wage to $15.00 per hour by September 2026. Currently, Florida’s minimum wage is $8.56 per hour. The amendment proposes to increase the minimum wage to $10.00 per hour in September 2021 with an increase of $1.00 per hour each year until the minimum wage becomes $15.00 per hour in September 2026. Thereafter, the minimum wage will be adjusted annually for inflation.

  • Proponents argue that the increased minimum wage will allow minimum wage workers to earn enough to afford basic household necessities, and help to reduce race and gender income inequality. They also point to a potential increase in economic activity by increased household spending.
  • Opponents argue that an increase in labor costs would likely be passed on to the customers which would lead to an increase in the cost of living. They argue that a minimum wage increase would impact state and local governments with increased wage costs of $16 million in 20212 and $540 million in 2027. They point to a 2019 Congressional Budget Office analysis looking at the potential impact of raising the federal minimum wage which predicted a .8% drop in employment and reduced business income.

 

Amendment 3: All Voters Vote in Primary Elections for State Legislature, Governor, and Cabinet

Allows all registered voters to vote in primaries for state legislature, governor, and cabinet regardless of political party affiliation. All candidates for an office, including party nominated candidates, appear on the same primary ballot. Two highest vote getters advance to general election. If only two candidates qualify, no primary is held and winner is determined in general election. Candidate’s party affiliation may appear on ballot as provided by law. Effective January 1, 2024. It is probable that the proposed amendment will result in additional local government costs to conduct elections in Florida. The Financial Impact Estimating Conference projects that the combined costs across counties will range from $5.2 million to $5.8 million for each of the first three election cycles occurring in even-numbered years after the amendment’s effective date, with the costs for each of the intervening years dropping to less than $450,000. With respect to state costs for oversight, the additional costs for administering elections are expected to be minimal. Further, there are no revenues linked to voting in Florida. Since there is no impact on state costs or revenues, there will be no impact on the state’s budget. While the proposed amendment will result in an increase in local expenditures, this change is expected to be below the threshold that would produce a statewide economic impact.

 

Discussion:

Currently, Florida is a closed primary state, meaning that voters can only vote in the primary of the party with which they are affiliated. Amendment 3 would replace closed primaries with open primaries for the following elections: Governor, State Cabinet, and Florida Legislature. In an open primary all voters vote for all candidates on a single ballot. The top two vote getters, regardless of party affiliation, would advance to the general election. This change would only apply to the enumerated elections, and would not apply to local or federal races.

  • Proponents argue that open primaries would help increase voter participation by allowing registered voters not affiliated with a major political party to participate in primary elections. They also argue it could help produce more competitive races and attract more moderate candidate to run for state offices.
  • Opponents argue that open primaries could result in two members of a major political party being on the general ballot. Additionally, opponents argue that closed primaries ensure that candidates conform more closely and consistently with positions held by the two major political parties.

 

Amendment 4: Voter Approval of Constitutional Amendments

Requires all proposed amendments or revisions to the State Constitution to be approved by the voters in two elections, instead of one, in order to take effect. The proposal applies the current thresholds for passage to each of the two elections. It is probable that the proposed amendment will result in additional state and local government costs to conduct elections in Florida. Overall, these costs will vary from election cycle to election cycle depending on the unique circumstances of each ballot and cannot be estimated at this time. The key factors determining cost include the number of amendments appearing for the second time on each ballot and the length of those amendments. Since the maximum state cost is likely less than $1 million per cycle but the impact cannot be discretely quantified, the change to the state’s budget is unknown. Similarly, the economic impact cannot be modelled, although the spending increase is expected to be below the threshold that would produce a statewide economic impact. Because there are no revenues linked to voting in Florida, there will be no impact on government taxes or fees.

 

THE FINANCIAL IMPACT OF THIS AMENDMENT CANNOT BE DETERMINED DUE TO AMBIGUITIES AND UNCERTAINTIES SURROUNDING THE AMENDMENT’S IMPACT.

 

Discussion:

Amendment 4 would change the requirements to approve a constitutional amendment. Currently, a constitutional amendment is adopted if it is approved by 60% of the voters casting a ballot. Amendment 4 would require an amendment to be approved by at least 60% of the voters in two consecutive election cycles. In other words, a proposed amendment would have to be approved twice.

  • Proponents argue that requiring double approval would limit “legislating” by constitutional amendment by making it harder to adopt amendments to the Florida Constitution.
  • Opponents argue that it will limit voters’ ability to amend the constitution and to act as a check on the Florida Legislature when it fails to pass laws that are important to citizens.

 

Amendment 5: Limitations on Homestead Property Tax Assessments; increase portability period to transfer accrued benefit

Proposing an amendment to the State Constitution, effective January 1, 2021, to increase, from 2 years to 3 years, the period of time during which accrued Save-Our-Homes benefits may be transferred from a prior homestead to a new homestead.

 

Discussion:

Amendment 5 increases the amount of time property owners have to transfer the “Save Our Homes” property tax exemption when they move. Currently, property owners have two years to transfer their tax exemption when they move. Amendment 5 would extend that to three years effective January 1, 2021.

  • Proponents argue that, as the tax year starts on January 1, owners who sell later in the year end up with less time to transfer their tax benefit than owners who sell earlier in the year. They argue that extending the exemption to three years allows more Floridians to take advantage of the transfer.
  • Opponents argue that the amendment would reduce local property taxes, including a reduction of $1.8 million in fiscal year 2021-2022.

 

Amendment 6: Ad Velorem Tax Discount for Spouses of Certain Deceased Veterans Who Had Permanent, Combat-Related Disabilities

Provides that the homestead property tax discount for certain veterans with permanent combat-related disabilities carries over to such veteran’s surviving spouse who holds legal or beneficial title to, and who permanently resides on, the homestead property, until he or she remarries or sells or otherwise disposes of the property. The discount may be transferred to a new homestead property of the surviving spouse under certain conditions. The amendment takes effect January 1, 2021.

 

Discussion:

Under current law, honorably discharged, combat disabled veterans who are over 65 are eligible for a homestead property tax discount. However, the discount expires upon the death of the veteran. Amendment 6 would allow the homestead property discount to be transferred to the veteran’s surviving spouse who is on the title and lives in the home.

  • Proponents argue that the amendment would extend additional tax relief to assist surviving spouses who often live on fixed incomes.
  • Opponents argue that the tax discount will lead to a reduction in tax revenue including a reduction in school tax revenue by $1.6 million annually and non-school property tax revenue by $2.4 million annually.

 

A special Thank You to attorney Olivia Cato of our firm for preparing this article

 

 

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Association Publication of Deadbeat List & Third-Party Purchaser Assessment Liability: by KBRLegal.com

Association Publication of Deadbeat List & Third-Party Purchaser Assessment Liability: by KBRLegal.com

Association Publication of Deadbeat List & Third-Party Purchaser Assessment Liability: 

by KBRLegal.com

 

Association Publication of Deadbeat List & Third-Party Purchaser Assessment Liability: 

Two New Cases Board Members and Managers Need to Know About

 

CASE No. 1: On June 12, 2020, the Florida’s Fifth District Court of Appeal (“5th DCA”) entered its opinion in Latheresa Williams, On Behalf Of Herself And All Others Similarly Situated v. Salt Springs Resort Association, Inc., and Bosshardt Property Management, LLC., Case No. 5D18-3913 (Fla. 5th DCA 2020), The holding of this case echoes advice I have all too often provided to board members and managers to NOT publish what is commonly referred to as a “deadbeat list.” This type of list is posted in the community and identifies each debtor’s name and sometimes the assessment balance past due, too. No good ever comes from publication of such a list. In fact, the Florida Consumer Collection Practices Act (the “FCCPA”) forbids it if such publication of the deadbeat list is to harass and/or annoy the debtor.

 

More specifically, section 559.72, Florida Statutes, provides in relevant part that “[i]n collecting consumer debts, no person shall… [p]ublish or post, threaten to publish or post, or cause to be published or posted before the general public individual names or any list of names of debtors, commonly known as a deadbeat list, for the purpose of enforcing or attempting to enforce collection of consumer debts.”

 

In this case, the plaintiff was seeking class action status for all others similarly treated. This could lead to tremendous liability should discovery later evidence that the association and/or its management company regularly published deadbeat lists. At trial, the court had granted a motion to dismiss filed by the association based on a prior case, Bryan v. Clayton, also a 5th DCA case dating back to 1977 where the Court held that maintenance assessments were not “debts” for purposes of the FCCPA. In order to re-consider the prior Bryan decision, all of the 5th DCA sitting appellate judges participated in the Williams case, a process legally known as an “En Banc” style of review.

 

The Court in Williams took note that the FCCPA is designed to protect consumers and does not limit unlawful activities only to “debt collectors,” but rather to “all persons” involved in the collection of a debt. By way of contrast, the Federal Fair Debt Collection Practices Act (FFDCPA) applies only to debt collectors, which excludes the association and arguably its management company, and not to “all persons” involved in the collection of a debt, as in the FCCPA.

 

Under the prior Bryan holding, a past due assessment obligation was not even considered a “debt” for purposes of the FCCPA and the FFDCPA. In the recent Williams case, the Court went to great lengths to explain that, in fact, an association assessment obligation “is a debt which arose out of an obligation by a consumer out of a money, property, insurance or services transaction which is primarily for personal, family, or household purposes” and is therefore subject to FCCPA.

 

Thus, the Court remanded the case back to the trial court for further proceedings. While, its unknown how the plaintiff’s attempt for a class action certification will resolve, it is extremely likely that one or more defendants will be found to have violated the FCCPA for having published the “deadbeat list.” The takeaway from the Williams case is to never, ever publish a list of association debtors. This does not at all mean that the board cannot be provided a list of those members delinquent in their assessment obligations. However, it does mean such a list should not be made readily available to the membership by posting or mailing, etc.

 

 

CASE No. 2: On May 20, 2020, Florida’s Third District Court of Appeal entered its opinion in Old Cutler Lakes by the Bay Community Association, Inc. v. SRP SUB, LLC, Case No. 3D19-528 (Fla. 3d DCA 2020) regarding the liability of a third-party purchaser at a mortgage foreclosure sale for assessments that came due prior to the third-party acquiring title to the property. The Court’s holding in this case is in line with its prior holding in the case of Beacon Hill Homeowners Association, Inc. v. Colfin Ah-Florida 7, LLC, 221 So. 3d 710 (Fla. 3d DCA 2017), which based its decision on the landmark case decided by Florida’s Fourth District Court of Appeal in Pudlit 2 Joint Venture, LLP v. Westwood Gardens Homeowners Association, Inc., 169 So.3d 145 (Fla. 4th DCA 2015).

 

In the Old Cutler Lakes case, SRP SUB, LLC (“SRP”) was the successful bidder at a foreclosure sale on a first mortgage held by Wells Fargo. After obtaining title by a certificate of title, SRP filed an action for declaratory relief seeking a determination as to its liability for assessments that accrued prior to the issuance of the certificate of title. In relevant part, the Declaration of Covenant and Restrictions of Old Cutler Lakes by the Bay (“Declaration”) provided the following:

 

The sale or transfer of any Lot pursuant to the foreclosure or any proceeding in lieu thereof of a first mortgage meeting the above qualifications, shall extinguish the lien of such assessments as to payments which became due prior to such sale or transfer.

 

This language is similar to the language contained in the declarations in the Beacon Hill and Pudlit 2 cases. In these cases, the courts applied a constitutional principal prohibiting the impairment of contracts in deciding that the statutory safe harbor did not control over the provisions of the declarations where the statute did not require such application and the declarations did not contain “Kaufman” language, which has the effect of making amendments to the Florida Statutes automatically applicable to a declaration as they are “amended from time to time.” As the provisions of the declarations expressly created rights for third-party purchasers, the third-party purchasers are “intended third-party beneficiaries” to such provisions which rights cannot be impaired pursuant to the constitutional principal prohibiting the impairment of contracts. In following the holdings of the Beacon Hill and Pudlit 2 cases, SRP was found not liable for any of the past due assessments that accrued prior to the issuance of the certificate of title. Thus, as with many declarations which have not been amended since their creation by the community’s developer, these, as yet to be amended, declarations may provide for a complete wipe out of all assessments that accrued prior to the transfer of title as a result of a mortgage foreclosure action or by deed in lieu of foreclosure.

 

The takeaway from the cases discussed above emphasizes the importance of reviewing and updating the association’s declaration, with the guidance of your association’s legal counsel, to ensure that it provides for necessary and available protections for the association and its members, including the use of “Kaufman” language, if appropriate to collect as much overdue assessment revenue as possible.

Rembaum’s Association Roundup  The community association legal news that you can use!

Kaye Bender Rembaum is a full service commercial law firm devoted to the representation of community associations throughout Florida. Under the direction of attorneys Robert L. Kaye, Esq., Michael S. Bender, Esq., and Jeffrey A. Rembaum, Esq., Kaye Bender Rembaum is dedicated to providing clients with an unparalleled level of personalized and professional service regardless of their size and takes into account their individual needs and financial concerns. We have offices in Broward County (Pompano Beach), Palm Beach County (Palm Beach Gardens), (Hillsborough County) Tampa, and office locations in Miami-Dade County by appointment.

Read More

 

 

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Q&A Broward County Emergency Order 20-25 – Impact on Community Associations by KBRLegal

Q&A Broward County Emergency Order 20-25 – Impact on Community Associations by KBRLegal

Q&A Broward County Emergency Order 20-25 – Impact on Community Associations

by KBRLegal

Join Campbell Property Management and Michael Bender from Kaye Bender Rembaum to learn about Broward County’s latest Emergency Order 20-25 and its impact on community associations during this brief, 30 minute webinar.

Wednesday, September 30 at 12:00 PM

Please submit a question you would like us to answer when you register. We will address as many questions as possible during the webinar.

Register Here!

 

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CALL’s COVID-19 Survey Results by CALL/Becker

CALL’s COVID-19 Survey Results by CALL/Becker

CALL’s COVID-19 Survey Results

by CALL / Becker

During the Summer of 2020, CALL’s COVID-19 Survey was open for Floridians to share their experiences during the height of the pandemic.

More than 1,000 association directors, managers and residents took the time to share what steps helped them keep their communities safe as well as the challenges they encountered along the way.

While each of us tried to keep our heads above these uncharted waters when COVID-19 changed our daily lives overnight, none of us were truly alone. Volunteer boards throughout Florida, who encounter operational challenges under ordinary circumstances, soon found themselves having to make impactful decisions about amenity closures, guest restriction and safety protocols.

We hope the results of our COVID-19 survey give your board some food for thought as you manage your safety protocols during the remainder of our statewide State of Emergency which is currently not scheduled to expire until November 3.

For full COVID-19 survey results, please click here.

 

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Learn about your HOA! Get involved this year, learn the Laws and how your Board is Governing? | SFPMA

Learn about your HOA! Get involved this year, learn the Laws and how your Board is Governing? | SFPMA

Learn about your HOA:

Many owners in HOA’s all over the country are looking closer at how their homeowners associations are being Governed. Inspection of the Accounting for years was based on trust, not any more! Many Owners want to make sure the fees they pay are being used for the benefit of their hoa. SFPMA has been getting many emails stating misuse accusations, document inspections, higher fees imposed by boards and collections for owners that are not paying. Many dont know what to do or dont care?  We say you should!

Learn more…..

Here are some things you Should be looking at:

1. Learn the HOA’s rules.

You may be able to find an HOA’s CC&Rs online as well as information about what happens if you violate a rule. Make sure any online information is current. If you cannot find this information online, ask your real estate agent to acquire these documents for you or contact the HOA yourself.

Pay particular attention to rules regarding fines and whether the HOA can foreclose on your property for nonpayment of HOA dues or fines resulting from CC&R violations. Also, learn about the process for changing or adding rules, and whether HOA meetings are held at a time you will be able to attend if you wish to do so. If the rules are too restrictive, consider buying elsewhere.

(EVERY HOA SHOULD HAVE A WEBSITE: EVERY OWNER CAN SIGN IN TO AND FIND THE INFORMATION ABOUT THE ASSOCIATION, MEETINGS, ELECTIONS, BOARD MEMBER REPORTS and NOTIFICATIONS AND NEWS)

 

2. Make sure the home you want to buy is not already out of compliance with HOA rules.

Buying into an existing problem can be a headache, so find out what the rules are and whether you would have to make changes to the home to comply.

(IF A PAST OWNER HAD FEES THEY OWED THE HOA, NEW OWNERS COULD BE ON THE HOOK TO PAY THESE TO THE HOA, ASK YOUR ATTNYS AND AGENTS)

 

3. Assess environmental practices.

If environmentally friendly living is important to you, be aware that some HOAs may dictate that you use fertilizers, pesticides, sprinkler systems and whatever else it takes to keep your lawn picture-perfect. They may not allow xeriscaping (an environmentally friendly form of landscaping) and may limit the size of gardens, ban compost piles and prevent you from installing solar panels. So make sure you check the fine print first.

 

4. Consider your temperament.

Are you the type of person who hates being told what to do? If so, living in a community with an HOA may be a very frustrating experience for you. One of the major benefits of home ownership is the ability to customize and alter the property to suit your needs, but HOA rules can really interfere with this.

 

5. Find out about fees.

Fees will differ for each community. Because of this, you should make sure to ask your HOA the following questions:

  • How are HOA fee increases set?
  • How often do increases occur, and by how much have they historically been raised?
  • Can you get a printed history of HOA dues by year for the last 10 years?
  • How large is the HOA’s reserve fund?
  • Also, ask for a record of special assessments that have been made in the past and ask if any special assessments are planned for the near future. Note that economies of scale can mean that special assessments are smaller in HOAs covering large communities, higher in smaller HOAs.
  • Find out what the monthly dues cover. Will you still have to pay extra for garbage pickup? Is cable included?

Compare dues for the complex or neighborhood you are considering to the average dues in the area. Keep in mind that you will have to pay for recreational facilities whether you use them or not. Find out the hours for amenities like pools and tennis courts. Will you be around during those hours, or will you be paying for facilities you’ll never be able to use? Be aware that the HOA may have rules about how many guests can use common facilities. If guest restrictions are severe, forget about that housewarming pool party you envisioned.

(LEARN ABOUT YOUR HOA OR CONDO BEFORE YOU BUY. LEARN WHAT QUESTIONS TO ASK BOARDS AND MANAGEMENT COMPANIES BEFORE YOU BUY!)

 

6. Try to get a copy of minutes from the last meeting or sit in on an HOA meeting before you buy.

The meeting minutes can be very telling about the policies of the HOA. Some questions to ask are:

  • What are current and past conflicts?
  • What is the process for resolving any conflicts?
  • Has the HOA sued anyone? How was that resolved?

Be alert for potential drama. Power trips and petty politics can be an issue in some HOAs. Talk to some of the building’s current owners, if possible – preferably ones who are not on the HOA board and who have lived in the building for several years. Talk to the HOA president and get a sense for whether you want this person making decisions about what you can do with your property. If a private company manages the HOA, investigate it before you buy. Some HOAs are professionally managed, but it is common for associations to be managed by building residents who hold their positions as volunteers. Even if you like the current HOA board or management company, it can change after you move in and you may end up getting something totally different than what you expected.

 

7. Watch for under-management.

Not all HOAs are over-managed. The opposite problem may be an HOA where no one really cares and where no one is interested in maintaining the building, making repairs, hearing resident grievances or being on the board. Residents may simply take turns serving as HOA president or randomly appoint someone, so be prepared to serve in this role whether you want to or not if that is the case with your community’s HOA.

This would also be a good time to check into any restrictions preventing you from renting out your property or that make it difficult for you to do so. If your property is being under-managed you might not have an issue, but if you’ve got a hyperactive manager it could be a totally different story.

 

8. Find out what kind of catastrophe insurance the HOA has on the building.

This is particularly important if you’re considering a condo or townhouse purchase and you live in an area that is prone to floods, earthquakes, blizzards, fires, tornadoes, hurricanes or any other type of potential natural disaster – and that is virtually anywhere.

 

9. Consider the impact of HOA fees on your short- and long-term finances.

A condo with high HOA fees might end up costing you as much as the house you don’t think you can afford.

 

The Bottom Line

Homeowners’ associations can be your best friend when they prevent your neighbor from painting her house neon pink, but your worst enemy when they expect you to perform expensive maintenance on your home that you don’t think is necessary or impose rules that you find too restrictive. Before you purchase a property subject to HOA rules and fees, make sure you know exactly what you are getting into. Then, once you’ve found your dream community.

 

Planning for the Future

The only constant is change, and the board must plan for the HOA’s future. This involves determining long-range needs and establishing long-term goals, along with implementing a strategy to attain those goals. The board should set annual goals, as well as those for a longer time frame. Performance goals are also set by the board. SFPMA and our members can help with many of the maintenance requests for your properties.

 

 

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You have until September 10, 2020 to make a claim for damages that were the result of Hurricane Irma.

You have until September 10, 2020 to make a claim for damages that were the result of Hurricane Irma.

If you have not properly addressed possible Hurricane Irma damage to your property – the time to do so is now.
Hurricane Irma first made landfall in Cudjoe Key, FL on September 10, 2017, which means you have until September 10, 2020 to make a claim for damages that were the result of Hurricane Irma.
September 10, 2020 is also the deadline to re-open or supplement a claim that has already been made for damages that occurred as a result of Hurricane Irma.
If you are unsure if your property sustained damage as a result of Hurricane Irma 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 homeowners associations.
The deadline is fast approaching, so time is of the essence to file your hurricane claim. If you miss the deadline, you will be forever barred from initiating a hurricane Irma claim in the future.
We are available to assist you and connect you with top professionals in the industry to accurately evaluate hurricane damage and submit an insurance claim the right way – today.
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.

(407) 478-4878

 

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Legal Update 2020 Summary: Florida Legislature passing several community association related bills this Season  By: Shayla Johnson Mount / Becker

Legal Update 2020 Summary: Florida Legislature passing several community association related bills this Season  By: Shayla Johnson Mount / Becker

  • Posted: Aug 18, 2020
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Legal Update 2020 Summary:  Florida Legislature passing several community association related bills this Season

By: Shayla Johnson Mount / Becker

The Florida Legislature was especially busy this past session filing, debating, and ultimately passing several community association related bills. Below is an outline of those bills and the potential impact on your community association this year.

 

  1. Emotional Support Animals – Chapter 2020-76 (Senate Bill 1084) – This long championed and highly anticipated bill managed to make it to the finish line this year to become law on July 1, 2020. This law amends portions of the Florida Fair Housing Act (Chapter 760.20, F.S.) to officially define an “emotional support animal” (“ESA”) and prohibit discrimination in housing against individuals with a disability-related need for an ESA. More specifically, the new law requires a housing provider (which for purposes of the law includes a community association) to make “reasonable accommodations” to allow for the individual’s ESA at no additional cost under certain circumstances. If the person’s disability is not readily apparent, the association can request additional supporting documentation from the person’s health care provider or other proof of disability (i.e.: proof of receipt of federal or state disability benefits). However, an association cannot inquire as to the person’s specific disability.  The new law also makes the individual directly responsible for any personal or property damage the ESA causes and also makes it a second-degree misdemeanor to falsify or misrepresent information or documentation concerning an individual’s need for an ESA.

 

  1. Fireworks – Chapter 2020-11 (Senate Bill 140) – The new law prohibits a homeowners association from passing a board-rule banning the use of fireworks on certain “designated holidays,” including New Year’s Eve, New Year’s Day, and Independence Day. This law does not specifically apply to condominium associations and a homeowners association is still able to amend its Declaration to regulate or limit the use of fireworks within the community.

 

  1. Law Enforcement Vehicles – 2020-5 (Senate Bill 476) – One of the first bills passed and approved by Governor DeSantis this session, is a law that prohibits a condominium, cooperative or homeowners association from prohibiting a law enforcement officer from parking his or her assigned vehicle in an area where the individual would otherwise have the right to park.

 

  1. State Reporting for 55+ Communities – Chapter 2020-153 (Senate Bill 255) – This law removes the requirement that 55+ communities must initially register, and biannually report its compliance status, to the Florida Commission on Human Relations. This bill does not eliminate the need for these communities to comply with federal reporting requirements.

 

  1. Housing Discrimination – Senate Bill 374 – This bill passed the House and Senate but, at the time of this writing, is still pending action by the Governor. If it becomes law, this bill will amend the Marketable Record Title Act  (Chapter 712, F.S.), to automatically extinguish and make void as a matter of law any “discriminatory restriction” on the basis of race, color, national origin, religion, gender or physical disability which are contained in an Association’s recorded governing documents.  The law would allow the board by majority vote to amend its governing documents to remove any such restrictions.

 

  1. Lease Requirements – Chapter 2020-102 (Senate Bill 469) – This law removes the requirement that a lease agreement must be signed by a subscribing witness.

 

  1. Florida Guaranty Insurance Claims – Chapter 2020-155 (House Bill 529) – This bill increases the amount of insurance available through the Florida Guaranty Insurance Fund from $100,000 to $200,000 for each condominium or HOA claim, where the association has the responsibility to insure residential units.

 

  1. Rental Agreements – Chapter 2020-99 (Senate Bill 1362) – Also known as the “Protecting Tenant at Foreclosure Act,” this law requires a party or entity who obtains a property at foreclosure that is subject to a pending lease agreement to provide to the tenant a 90-day notice to vacate.

 

Thankfully, Senate Bills 295 and 1488 did not pass, both of which would have significantly revised and limited the ability of a condo or homeowners association to bring construction defect claims against developers and builders on behalf of its members.  This year, the legislature revisited the controversial issue of regulating short term vacation rental (i.e.: Airbnb) through consideration of Senate Bill 1128 and House Bill 1011.  These bills would have prohibited cities and counties from passing ordinances regulating or limiting an owner’s ability to use their home or unit as a short-term vacation rental. Although neither bill specifically addressed an association’s ability to pass rules or regulations regarding short-term rentals, it is likely that this issue will return next year for further debate before the Legislature.  Prior to next year’s session, associations that are concerned with short-term rentals in their community should seriously consider amending their governing documents now as future versions of this bill may propose to limit an associations ability to regulate short-term rentals as well.

Shayla J. Mount is an Associate Attorney in Becker’s Community Association Practice Group. She focuses her practice on providing counsel and representation to homeowner and condominium associations throughout Central Florida. An experienced litigator,

she has handled collections litigation and served as general legal counsel for numerous homeowner and condominium association boards throughout Orange, Osceola, Seminole, Duval, and Sarasota Counties. Shayla regularly advises association boards on issues regarding vendor contracts and disputes, document amendments, and covenant enforcement issues.

She also has substantial experience handling a variety of civil litigation issues including small business and contracting actions, foreclosure defense, real estate transactions, and insurance disputes.

 

 

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Governing Document Amendments In Light Of COVID-19 by Rembaum’s Association Roundup

Governing Document Amendments In Light Of COVID-19 by Rembaum’s Association Roundup

Governing Document Amendments In Light Of COVID-19

Rembaum’s Association Roundup presented by KBRLegal.com

As a result of the unexpected COVID-19 crisis and its ramifications on Florida’s community associations, there are lessons that can be learned. Early on, an unexpected issue many community associations faced was whether the board could rely on the emergency powers set out in the Florida Statutes to help protect both residents and property alike during this time of uncertainty (the “emergency power legislation”). The Condominium, Cooperative, and Homeowners’ Association Acts each provide that the board of directors is granted certain emergency powers in response to damage caused by an event for which a state of emergency is declared by the Governor. While local governments at the city and county level may similarly declare a state of emergency, the emergency powers only spring into existence upon the Governor’s issuance of an executive order declaring a state of emergency in response damage caused by event.

These emergency powers include, just to name a few, the ability to cancel and reschedule meetings, conduct such meetings with as much notice as may be practicable, levy assessments, restrict access to the property and so much more.  More specifically, Sections 718.1265 as to condominiums, 719.128 as to cooperatives, and 720.316 as to homeowners’ associations, Florida Statutes, each provide enumerated emergency  powers available to the board of directors that may be exercised “in response to damage caused by an event for which a state of emergency is declared…”. However, in light of COVID-19 pandemic the interpretation of the phrase “in response to damage caused by an event” created questions and confusion to both laymen and lawyers alike.

At issue was whether the emergency power legislation only applies to situations where there is actual property damage and/or as a result of a hurricane damage. Even if not necessarily intended for COVID-19 type situations,  to many lawyers, including this author, there was no question that the emergency powers could be utilized by board members of Florida’s community associations in response to the instant pandemic. Nevertheless, others questioned whether the emergency power legislation should apply since it was initially drafted in response to hurricane type events, and not a medical event such as the COVID-19 pandemic.

By way of background, the emergency power legislation was drafted in response to the series of hurricanes that hit Florida in 2004, however, it took the Florida Legislature approximately four years to pass them into law. A plain reading of the emergency power legislation even demonstrates that these statutes were drafted with hurricane type damage in mind, and not other disasters, such as global pandemics. But, that does not mean they cannot be applied to other situations.  In fact,  on March 27, 2020, the Florida Department of Business and Professional Regulation Division of Condominiums, Timeshares and Mobile Homes (the “Division”) issued an unexpected order that provided that the phrase “response to damage caused by an event” should not be considered when reading the emergency powers legislation. Then on May 20, 2020, the Division entered a second order explaining that its prior order would expire on June 1, 2020 which is slightly more than a month before the Governor’s state of emergency is set to expire on July 7, 2020. Without regard to whether the Division had the necessary authority to issue such orders in the first place, the result of its second order has attorneys asking, once again, does the emergency power legislation apply? While a great many lawyers experienced in the body of community association law believe so, that does not mean that a court would agree upon legal challenge. Candidly, it would be surprising if the court did not agree, but one never knows with certainty how a court will ultimately rule, most especially on issues of first impression, for which this certainly qualifies.

There is already legislative chatter about the need to revise the emergency power legislation to make it more adaptable to the different types of disasters that can occur. But, community association boards should be able to rely, right now, on the emergency powers in any situation where the Governor has declared a state of emergency where health of the members can be at issue. Even if the Florida legislature does amend the emergency powers to make it patently clear that the board may exercise its statutory  emergency powers during a declared state of emergency for a pandemic, such an amendment will take time and that could mean anything but a fast fix. So, what is an association to do to prepare for the next unanticipated state of emergency?

Well, at least in this instance it is quite likely that your association can act much more quickly to amend the community’s declaration or bylaws, than the Florida legislature can to amend the Florida Statutes.  With that in mind, the board can sponsor and the association membership can adopt an amendment to the declaration or bylaws that clarifies that the emergency powers set out in the Florida Statutes (with specific reference) apply to all states of emergency declared by the Governor to the extent the safety and welfare of the members and/or the property is at issue. In addition, or as an alternative, specific emergency powers can be drafted in the declaration or bylaws, too.

 

 

A few suggestions for consideration include:

  • During any emergency the Board may hold meetings with notice given only to those Directors with whom it is practicable to communicate, and the notice may be given in any practicable manner.  The Director, or Directors, in attendance at such a meeting shall constitute a quorum.
  • The Board may cancel, reschedule and/or postpone Board and member meetings, including the annual meeting, if necessary to protect the health and welfare of the members.
  • Corporate action taken in good faith during an emergency under this section to further the ordinary affairs of the association shall bind the Association; and shall have the rebuttable presumption of being reasonable and necessary.
  • The Board may use reserve funds to meet Association needs and may use reserve funds as collateral for Association loans.  The Board may adopt emergency assessments with such notice deemed practicable by the Board.
  • The Board may adopt emergency Rules and Regulations governing the use and occupancy of the Units, Common Elements, Limited Common Elements, and Association Property, with notice given only to those Directors with whom it is practicable to communicate.
  • Any Officer, Director, or employee of the Association acting with a reasonable belief that his actions are lawful in accordance with these emergency Bylaws shall incur no liability for doing so, except in the case of willful misconduct.
  • The Board shall act to keep all members informed of all Board actions taken pursuant to these emergency powers by U.S. Mail, closed circuit tv, social media, or email, etc. as may be practicable under the circumstances.

If your association is interested in adopting such an amendment to your association’s governing documents, please be certain to seek out competent legal counsel that has the requisite expertise in the area of community association law.

 

Jeffrey Rembaum’s, Esq. of Kaye, Bender, Rembaum attorneys at law, legal practice consists of representation of condominium, homeowner, commercial and mobile home park associations, as well as exclusive country club communities and the developers who build them. Mr. Rembaum is a Certified Specialist in Condominium and Planned Development Law.

He is the creator of ‘Rembaum’s Association Roundup’, an e-magazine devoted to the education of community association board members, managers, developers and anyone involved with Florida’s community associations.  His column appears monthly in the Florida Community Association Journal. Every year since 2012, Mr. Rembaum has been selected to the Florida Super Lawyers list and was also named Legal Elite by Florida Trends Magazine. He can be reached at 561-241-4462.

 

 

 

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community association boards completely overlook the significance of who is serving as the association’s registered agent. by Donna DiMaggio Berger

community association boards completely overlook the significance of who is serving as the association’s registered agent. by Donna DiMaggio Berger

 

Far too many community association boards completely overlook the significance of who is serving as the association’s registered agent. I’ve found associations whose registered agent is a former board member who is either deceased or who has moved away or a former law firm or lawyer who no longer represents the association.

Pursuant to Section 607.0501,F.S, the duties of a registered agent are to forward to the corporation at its official address any process, notice, or demand which is served on or received by the registered agent. If the registered agent fails in this regard, the association may miss crucial litigation deadlines as well as Code compliance hearings which can result in substantial damage to the association. Current board members and managers should also seriously consider whether they are up to the task of serving as Registered Agent as that role does come with potential liability.

 

Donna DiMaggio Berger is a Board Certified Specialist in Condominium and Planned Development Law as well as a Fellow in the College of Community Association Law a prestigious national organization which recognizes excellence and ethics in the field of community association law. Ms. Berger has counseled condominium, cooperative, timeshare, mobile home and homeowner associations throughout Florida.  Her work with these communities includes covenant enforcement, covenant amendment, contract review and drafting, collections and foreclosures, as well as advising these associations about the statutory and documentary guidelines for the daily administration of their communities.

Ms. Berger has led various advocacy initiatives working with legislators and other public policy makers on behalf of those who live, serve and work in common interest ownership communities. She has testified before the Florida Legislature regarding community association law and frequently appears on radio talk shows and in print media discussing these issues.

 

 

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MORE ABOUT COLLECTIONS By Eric Glazer, Esq. Published August 3, 2020

MORE ABOUT COLLECTIONS By Eric Glazer, Esq. Published August 3, 2020

MORE ABOUT COLLECTIONS

By Eric Glazer, Esq.

Published August 3, 2020

 

As promised a few weeks back, we need to discuss some very interesting pitfalls associations sometimes fall into in the area of collections.  In light of the fact that mortgage delinquencies are at an all-time high, rest assured that owners will in a short while begin falling behind on condo and HOA assessments as well.

The association must accept even partial payments.

 

Suppose the assessments are $300.00 per month.  An owner has not paid in 3 months and owes $900.00 plus late fees and interest.  The owner sends in a payment for $300.00.  Must the association accept the $300.00 payment?  YES.

In Ocean Two Condominium Ass’n, Inc. v. Kliger, 983 So.2d 739 (Fla.App. 3 Dist.,2008)  the court held that the refusal of a condominium association and its management company of tendered payments of undisputed maintenance fees by condominium unit owners was improper and rendered premature the association’s lien foreclosure action involving owners’ units..  The condominium statute provided that such payments were to be applied on account, without prejudice to association’s and unit owners’ respective positions.  In this case, the dispute would have been reduced to an inconsequential amount, and association’s attorneys could not in good faith have filed to foreclose the miniscule claim remaining. West’s F.S.A. § 718.116(3).

The association should not worry about restrictive endorsements.

 

Same scenario as above, but this time, the owner writes “paid in full” on the $300.00 check.  Should the association deposit the check?  If they do, are they now prevented from suing for the $600.00 balance?

The condo and HOA statutes each provide the methods by which to apply assessments that are paid.  Each statute makes it clear that they are to be applied in accordance with the statute, and any purported accord and satisfaction, or any restrictive endorsement, designation, or instruction placed on or accompanying a payment.   In simple terms, after applying the payment, the balance is still owed despite the words “paid in full” or similar words being placed on the check.

 

The association must apply the monies in accordance with the statute.

 

Same scenario as above, but the owner has also incurred $200.00 in attorney’s fees, $10.00 in interest and $75.00 in late fees.  How much does the owner owe to the association after making the $300.00 payment?

The statute says……….Assessments and installments on assessments which are not paid when due bear interest at the rate provided in the declaration, from the due date until paid. The rate may not exceed the rate allowed by law, and, if no rate is provided in the declaration, interest accrues at the rate of 18 percent per year. If provided by the declaration or bylaws, the association may, in addition to such interest, charge an administrative late fee of up to the greater of $25 or 5 percent of each delinquent installment for which the payment is late. Any payment received by an association must be applied first to any interest accrued by the association, then to any administrative late fee, then to any costs and reasonable attorney fees incurred in collection, and then to the delinquent assessment.

About HOA & Condo Blog

Since 2009, Eric has been the host of Condo Craze and HOAs, a weekly one hour radio show that airs at noon each Sunday on 850 WFTL.Eric Glazer graduated from the University of Miami School of Law in 1992 after receiving a B.A. from NYU. He has practiced community association law for more than 2 decades and is the owner of Glazer and Sachs, P.A. a seven attorney law firm with offices in Fort Lauderdale and Orlando and satellite offices in Naples, Fort Myers and Tampa.

See: www.condocrazeandhoas.com.

He is the first attorney in the State of Florida that designed a course that certifies condominium residents as eligible to serve on a condominium Board of Directors and has now certified more than 10,000 Floridians all across the state. He is certified as a Circuit Court Mediator by The Florida Supreme Court and has mediated dozens of disputes between associations and unit owners. Eric also devotes significant time to advancing legislation in the best interest of Florida community association members.

 

 

 

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