RealManage invites you to this Condominium and HOA Board Member Certification taught by Lisa A. Magill, Esq., Board Certified Specialist in Condominium & Planned Development Law, from Kaye Bender Rembaum.
The program will be moderated by Jonathan Louis of RealManage, and will cover the essentials of board membership.
This webinar is updated regularly to remain current with amendments to Florida legislation. In addition, it satisfies Florida’s requirement for new condominium and HOA board members.
Though CE credit is not offered for this webinar, CAMS are welcome to attend for an excellent review. Provider: 0005092 (KBR Legal).
Our Fort Lauderdale attorneys handle claims involving accidents and injuries as well as property damage.
Homeowner Condo and Business, Property Damage Claims and Personal Injury Claims.
A home or office building is the most significant purchase most of us will make during our lifetime. Most of us buy insurance coverage – windstorm, liability, flood, homeowners, and business interruption – to protect our homes and businesses. Yet, today’s insurance policies are lengthy, complex contracts full of exceptions, exclusions, deductibles, and conditions that make the policy difficult to read, and sometimes even more difficult to recover from for your damage.
The Maus Law Firm has the best attorneys to handle property damage claims. These are just a few of the questions you may deal with after suffering a house water damage claim, plumbing backup, or a broken pipe above your condominium unit:
In addition to these questions, there are several different types of policies offered by homeowner insurance companies that contain various types of coverage. There is a policy used for owner occupied properties, one for properties that are rented out, and yet another type policy used for condo units. Where do you turn to get help?
The Maus Law Firm has been successfully handling insurance related claims since 1993. The Firm is “AV” rated by Martindale Hubbell, the highest ranking for legal ability and ethics. The Maus Law Firm has been recognized continuously since 2011 by Florida Trend Magazine’s “Legal Elite” ranking, and named a “SuperLawer” by West Thompson Publishing. The attorneys at The Maus Law Firm will competently and aggressively represent you in your homeowner property damage insurance claim, or commercial business insurance claim.
Comments: Comments Off on OTHER NEW CONDO LAWS TO KNOW – PART ONE
SOME OTHER NEW LAWS CONDOS MUST FOLLOW – PART ONE
By Eric Glazer, Esq.
We all know by now the myriad of new safety laws condos that are 3 stories or more are required to follow. They include mandatory fire sprinklers or an engineered life safety system (for buildings 75 feet or higher only), a Phase One Milestone Inspection after 30 years and every ten years thereafter (25 years if the building is on the coast), a likely Phase Two Inspection which will result in required repairs to the structure and of course structural integrity reserve studies performed by an architect or engineer and the mandatory full funding of reserve accounts.
There’s actually more to know.
OFFICIAL RECORDS TO INCLUDE AND BE POSTED ON THE ASSOCIATION’S WEBSITE:
All audits, reviews, accounting statements,structural integrity reserve studies, and financial reports of the association or condominium. Structural integrity reserve studies must be maintained for at least 15 years after the study is completed.
A copy of the inspection reports for the milestone inspections and the structural integrity reserve studies and any other inspection report relating to a structural or life safety inspection of the condominium property. Such record must be maintained by the association for 15 years after receipt of the report.
NO LONGER IS THERE THE ABILITY
TO WAIVE RESERVES OR USE THEM FOR OTHER PURPOSES
It was always ridiculously easy to waive the funding of the reserve account. All it took was a lousy majority of a quorum. Those days are now over and reserve accounts must be fully funded, like it or not.
The same rule finally applies to developers. Before turnover of control of an association by a developer to unit owners other than a developer under 718.301, the developer-controlled association developer may not vote the voting interests allocated to its units to waive the reserves or reduce the funding of the reserves.
You can no longer vote to use reserves set aside for one category to be used to repair another category. Effective December 31, 2024, members of a unit-owner controlled association may not vote to use reserve funds, or any interest accruing thereon, that are reserved for items listed in paragraph (g) for any other purpose other than their intended purpose.
(g) Structural integrity reserve study.
An association must have a structural integrity reserve study completed at least every 10 years after the condominium’s creation for each building on the condominium property that is three stories or higher in height which includes, at a minimum, a study of the following items as related to the structural integrity and safety of the building:
Roof.
Load-bearing walls or other primary structural members.
Floor.
Foundation.
Fireproofing and fire protection systems.
Plumbing.
Electrical systems.
Waterproofing and exterior painting.
Windows.
Any other item that has a deferred maintenance expense or replacement cost that exceeds $10,000 and the failure to replace or maintain such item negatively affects the items listed in subparagraphs a.-i., as determined by the licensed engineer or architect performing the visual inspection portion of the structural integrity reserve study.
Before a developer turns over control of an association to unit owners other than the developer, the developer must have a structural integrity reserve study completed for each building on the condominium property that is three stories or higher in height.
Associations existing on or before July 1, 2022, which are controlled by unit owners other than the developer, must have a structural integrity reserve study completed by December 31, 2024, for each building on the condominium property that is three stories or higher in height.
BREACH OF FIDUCIARY DUTY – THIS IS SCARY
If an association fails to complete a structural integrity reserve study pursuant to this paragraph,such failure is a breach of an officer’s and director’s fiduciary relationship to the unit owners under s. 718.111(1). If you’re an officer or director, this new law should scare you to death. If you fail to do the reserve study, you have automatically breached your fiduciary duty. This could potentially result in individual liability against a director should the failure to do the reserve study result in collapse or injury.
(h) Mandatory milestone inspections.—If an association is required to have a milestone inspection performed pursuant to s. 553.899, the association must arrange for the milestone inspection to be performed and is responsible for ensuring compliance with the requirements of s. 553.899. The association is responsible for all costs associated with the inspection. If the officers or directors of an association willfully and knowingly fail to have a milestone inspection performed pursuant to s. 553.899, such failure is a breach of the officers’ and directors’ fiduciary relationship to the unit owners under s. 718.111(1)(a). Again, If you’re an officer or director, this new law should scare you to death. If you fail to do the milestone inspection, you have automatically breached your fiduciary duty. This could potentially result in individual liability against a director should the failure to do the reserve study result in collapse or injury.
Comments: Comments Off on What is an Estoppel Certificate and Why do you need one when buying a Condo or Home in an HOA?
Estoppel – Why it costs money to figure out how much money you might owe
by Evan Bradley, CFO, Campbell Property Management
The word this week is Estoppel.
Generic legal definition that you should IGNORE: A legal principle that bars a party from denying or alleging a certain fact owing to that party’s previous conduct, allegation, or denial.
Layman’s description (not a legal description) of what estoppel means in a condo or homeowners association: an estoppel certificate is a document which describes outstanding fees that an owner owes to his/her association as of a certain date.
When a home is sold, the new owner and the old owner are “jointly and severally liable” for any amounts owed to the association. What this means in practice, is that any debt to the association stays with the property when a title transfers. These debts include: maintenance dues, late fees, fines, interest, legal fees and special assessments outstanding at the time of the transfer.
If the new owner does not obtain an estoppel certificate they will not be aware of any amounts owed to the association by the prior owner and they may be inheriting a huge debt which they are responsible for. This is why it is necessary to make sure any outstanding debt (or acknowledgement that no money is owed) is properly disclosed, via an estoppel certificate as a protection to the new owner. Often the title company will request an estoppel certificate on the owner’s behalf and any amounts owed will be paid off at closing.
Why does it cost money to get an estoppel? Someone has to take the time to do the research and prepare the certificate for the sale to happen. It is critical that the information is correct since the estoppel is legal proof of the amount owed. The owner (not the association) has to pay for this document, which is typically prepared by the management company, association staff, association attorney or bookkeeping company.
Estoppels are rarely as simple as providing an amount owed. In addition to listing any amounts owed to the association, the estoppel often contains other critical information such as:
Are there any outstanding violations on the property?
In addition to the regular maintenance, is there a special assessment ongoing?
Are there any pending special assessments that may not have been billed yet?
Is a capital contribution required?
Are there any other associations this property owner may owe money to?
These are just a few of the dozens of questions that are often asked by title companies on estoppel requests, which can become very time consuming.
Here is a short article that describes the law around estoppels.
Legal disclaimer: I am not an attorney. This should not be considered legal advice.
Comments: Comments Off on Director Compensation: Do I Get Paid for This?” – by Becker for the – Naples Daily News
Q: I am considering running for the board of my condominium association. However, there is a lot of work involved in being on the Board. It can be a thankless position, which discourages many owners from volunteering. Can we compensate the members of the board as a way to encourage people to serve?
A: The Florida Condominium Act states that unless otherwise provided in the bylaws, the officers and the directors shall serve without compensation. So, unless your association’s bylaws provide for such compensation, compensation is prohibited.
The Florida Homeowners’ Association Act contains similar language.
While your sentiments are spot on, boards being paid for their service is very rare in the community association realm. I do think there would be some basis for concern as to whether paid directors would be held to higher standards of legal liability, as well as whether the typical nonprofit Directors and Officers Liability Insurance Policy written to cover association directors would be available.
Q: I received the first notice of my condominium association’s annual meeting just over a month ago. The first notice included a “Notice of Intent” form that had to be submitted by any owner wishing to run for the board of directors by the stated deadline. One of the owners that submitted a Notice of Intent is behind on the payment of her assessments. However, she told our association manager that she would pay her assessments in full before the election. Can she run for the board as long as she pays her assessments before the election?
A: A unit owner desiring to be a candidate for the board must give written notice of his or her intent to be a candidate to the association not less than 40 days before a scheduled election. The law states that an owner must be eligible to be a candidate to serve on the board at the time of the deadline for submitting a notice of intent.
The Florida Condominium Act contains a number of eligibility requirements for candidates, one of which is that the candidate must not be delinquent in paying any assessment to the association. According to changes in the Act that became effective on July 1, 2021, a person is considered “delinquent” if a payment is not made by the due date of the assessment as specifically identified in the declaration of condominium, bylaws, or articles of incorporation.
Prior to the July 1, 2021 changes, an individual was not eligible if they were delinquent in the payment of any “monetary obligation” to the Association (as opposed to the current version of the law which states delinquent in the payment of assessments). For example, someone who had not paid a fine would be ineligible under the old law, the new law limits eligibility to assessment payment.
If the candidate in your community was delinquent on the 40th day before the election, this individual would not be eligible to be a candidate and cannot be listed on the ballot.
Q: Most of the members of our board will be leaving our condominium soon to go back to their Northern residences, making it very difficult for us to have in-person board meetings. Can our condominium board vote via e-mail? (M.J.)
A: The Florida Condominium Act specifically provides that members of the board may use e-mail as a means of communication but may not cast a vote on an association matter via e-mail. Although there may be certain day-to-day decisions that do not require a vote of the board that can be discussed via e-mail, any action that requires approval of the board under your condominium documents or the Act must be done at a duly noticed and open board meeting.
The good news is that the Condominium Act does allow board members to participate in a meeting via telephone or real-time videoconferencing. If a director participates via videoconference, for example, the director’s participation counts towards a quorum, and the member can vote as if physically present.
Jennifer Biletnikoff is a Board Certified Specialist in Condominium and Planned Development Law and represents condominium, cooperative, mobile home and homeowners’ associations located throughout Southwest Florida including Collier, Lee, Sarasota and Charlotte Counties. She has particular experience in covenant enforcement and foreclosure law, and has also practiced in the areas of commercial, business and tort litigation.
Comments: Comments Off on THEY DID NOT DIE IN VAIN
When The Florida Legislature went home after the 2021 Legislative Session without passing a single change to Florida condominium safety laws, it was a slap in the face to the victims and their families. This firm was relentless and refused to give up.
We wrote the Governor’s Office demanding that this be corrected, we kept blasting Florida’s legislators on Television and of course on the Condo Craze and HOAs radio and YouTube show. We kept fighting the fight.
After all, we warned every member of The Florida Legislature in May of 2018, of the pending disaster that faces The State of Florida if mandatory reserves are not passed. It took the loss of 98 lives to get the laws changed, but this firm is so proud to say after massive public pressure, The Florida Legislature passed and The Governor signed the most dramatic changes to Florida Condominium Safety Laws ever passed in the history of the state.
This issue is devoted to teach all of you the massive changes to the laws that each and every condominium unit owner and especially, every single board must immediately learn and have respect for. No doubt that these laws will make it financially more difficult for many to purchase and many to even remain living in their condominium unit. Nonetheless, The Florida Legislature did the right thing and put lives and safety ahead of finances.
The face of Florida condominiums have changed forever. If you have questions or concerns, call us.
OUR BOARD CERTIFICATION COURSE IS BACK!!!
The law now provides that within 90 days of getting elected to a condominium or homeowner’s association Board
of Directors, you must get certified or you are removed from the Board. One way to get certified is by attending a
state approved course. Attorney Eric Glazer has designed a course that was approved by The DBPR, which allows
him to certify attendees as eligible to serve on a Florida condominium or HOA Board of Directors. See the list
below of classes you may register for. Eric is proud to have certified over 20,000 directors throughout the state.
Other Board Certification Classes –for Condos and HOAs
AUGUST 25TH – ON-LINE BY ZOOM — 6:00 P.M.
As to the Following, All Starting Times are 9:00 a.m. at the L&L Condo and HOA Expo:
October 4th – Palm Beach, The Palm Beach Convention Center
October 11th – Broward at The Signature Grand
October 12th –Brandenton, at The Bradenton Convention Center
October 17th – Orlando at The Orange County Convention Center
October 27th – Tampa at the Tampa Convention Center
Eric Glazer: Eric is a graduate of NYU and The University of Miami School of Law in 1992. Our firm is proud to announce that as of June 1st, 2018 Eric was part of the first ever group of attorneys in the state to
become Board Certified in Condominium and Planned Development Law. Out of over 100,000 attorneys in the state, approximately 195 are Board Certified in this area. Eric was also certified by The Florida Supreme Court as a Circuit Court Mediator in 2007. He is also a member of the New York, Washington D.C. and Tennessee Bar. Eric is also a Florida Supreme Court Certified Arbitrator.
Richard Sachs has been practicing since 1994. He has been certified by the Florida Supreme Court as a Circuit Court mediator since 2002. He is also a Florida Supreme Court Qualified Arbitrator. Richard received the distinguished “AV” rating from Martindale-Hubbell in 2000 and has maintained that rating throughout his career. He is well respected by
his peers as demonstrated by his being named to the list of Florida Super Lawyers and the list of the South Florida Legal Guide’s Top Lawyers, both since 2011.
Pennie Mays is Board Certified in Construction Law by The Florida
Bar. Pennie was admitted to The Florida Bar in 2005. She has spent her
16 year career representing associations against developers and
contractors and other commercial litigation.
Paul Kim is practicing since 2007. He devotes much of his time to
litigation in state and federal court and arbitration including but not
limited to service and emotional support animal issues, disability and
discrimination law, rule compliance and complex bankruptcy issues.
Our firm prides itself on our ability to represent associations
and their owners on all legal matters that come their way.
Whether it’s representation in the courtroom, in administrative hearings, attending your meetings, answering your calls, speaking with you on the radio or teaching you at our seminars, it is always an honor and a pleasure to serve
you. Eric M. Glazer, Esquire
Whether you are an experienced board member or thinking about becoming one, having a foundation for effective community association board leadership is important.
By becoming a community association board member, you step up to take on positions of service and responsibility. You’re now expected to anticipate issues, solve problems, meet the expectations of residents, and protect property values.
Here are five important skills to possess as a board member:
Governing Documents and Roles & Responsibilities. To start you on the right path, you must understand the legal authority for your association. You must have a thorough understanding of the duties and responsibilities of each board member and the professionals who are available to assist you.
Communications, Meetings and Volunteerism. You should also learn how to maximize volunteer involvement in your community association by improving board communications, conducting effective meetings, and building community spirit.
Fundamentals of Financial Management. As a minimum, you should learn the fundamentals of association financial management, including guidelines for protecting your association’s assets, preparing a budget, planning for the future, and collecting assessments. Since the tragic condo collapse in Miami, many board members have realized the importance of risk mitigation and reserve studies.
Professional Advisors and Service Providers. Because putting together the right team to support your association can be challenging, you should seek practical tips on finding, evaluating, and hiring qualified professional advisors and service providers. Visiting CAI’s forum for Community Associations is a good tool for such information.
Association Rules and Conflict Resolution. You should learn the guidelines for making reasonable association rules, enforcing rules fairly and resolving conflict effectively.
Since the tragic Surfside condo collapse, residents are asking for more transparency from their elected board members. Board members can use Concierge Plus as a platform for keeping residents in the loop with regards to anything related to their community.
Below are few Concierge Plus features that can help you become a transparent board member:
Resident Announcements
You can send out notices of upcoming meetings using our Announcements module (as well as posting those events on the Community Calendar). Concierge Plus announcements can be delivered to residents by email, SMS, or even through an automated phone call based on the resident’s opt-in preferences. This will save you from having to slip printed materials under your residents’ doors.
File Sharing
You can share important documents such as a Reserve Study with unit owners using our File Sharing feature. This is a password-protected repository for important documents and is a great place to store articles of incorporation, meeting minutes, rules and regulations.
Discussion Forum
Our Discussion Forum feature allows residents and staff to discuss various topics. The forum increases resident engagement by allowing residents to pitch-in with their views on any topic related to their community.
Virtual Owner Meetings & AGMs
As the pandemic eases and we resume in-person gatherings, hybrid meetings are slowly becoming a permanent part of how community associations function.
Via our all-in-one virtual meeting platform integration with GetQuorum, you can easily add HD web conferencing, automate attendance, enable eligible attendees to vote online, and much more.
Community association board members should serve with the best interests of their communities in mind. The law imposes a level of care and loyalty, owed by board members to their associations. It is vital that you receive proper education and training in order to understand your obligations and fulfill your fiduciary duty to the association.
Book a meeting with our experts today, and see for yourself how thousands of board members across North America have become more informed and effective using our platform.
Comments: Comments Off on SHOULD I USE A PUBLIC ADJUSTER? While it would be wonderful if no one ever suffered damage to their property, it would be unrealistic to expect such good fortune.
Most states license all insurance adjusters, whether they work for an insurance company or for the public. Adjusters working for the insurance companies are obligated to treat all claimants fairly and impartially. However, they are paid by the insurance companies for their efforts. The state recognizes that you, the policyholder, are entitled to representation and you may retain the services of a licensed public adjuster to assist in the claim process. Sarasohn & Company, founded in 1924, is a fourth-generation public adjusting company based in Boca Raton, FL. As such, we can provide unparalleled expertise to get you the best possible settlement.
Our president, Stephen Sarasohn SPPA, is the third generation in his family’s business. His son, Bernard, joined the firm several years ago and is following in his footsteps. Stephen has been a public adjuster for 51 years and has held the professional designation Senior Professional Public Adjuster since it was first created in 1987. Stephen’s father, Ira Sarasohn SPPA, was one of the founding members of the National Association of Public Insurance Adjusters. Both Stephen and Ira were founding members of the Florida Association of Public Insurance Adjusters.
Property owners can certainly try to prepare and adjust their insurance claims themselves. However, as with most things in life, a great deal of benefit can be realized by hiring an expert to assist with a difficult and complex task. No public adjuster in Florida has as much experience as Stephen Sarasohn. Stephen has been certified as an instructor by the Florida Department of Financial Services and has taught insurance courses to the other public adjusters for their continuing education requirements. Sarasohn & Company has adjusted claims ranging from burglaries to plumbing leaks, to fires, to hurricanes, to airplanes crashing into buildings. The valuable experience we’ve gained, in our 98 years, benefits every client. We’ve adjusted a great many claims in excess of a million dollars, some of them in the tens of millions.
Not every professional is the same. When you need the assistance of an expert, you should hire the best expert. Contrary to another article on this site, damage caused by your negligence is not excluded.
While it would be wonderful if no one ever suffered damage to their property, it would be unrealistic to expect such good fortune. That’s why we all buy insurance. If you make a claim, the insurance company will have experts to represent their interests and you’d be well advised to do the same. For a free consultation regarding your damage or for a free review of your policy coverages, please contact us at any time at 561-368-5000
THE DIFFERENCE BETWEEN HOA AND CONDO LAW – IT’S LIKE NIGHT AND DAY!
By Glazer Sachs / written by Jan Bergemann
To be very honest, I am at a total loss when I look at the HOA Act the Florida legislature created with FS 720. Sometimes I wonder why they created this statute at all, considering that the provisions contained in this statute have no teeth — and it is widely known that even the best laws are useless without any proper enforcement tools.
The history of FS 720 clearly shows that enforcement of its provisions is only possible for homeowners who have lots of spare change in their pockets.
The biggest “joke” in the statutes is one sentence. Many good families lost their homes and life savings because the following sentence headlines the whole Florida HOA Act:
FS 720.302(2)The Legislature recognizes that it is not in the best interest of homeowners’ associations or the individual association members thereof to create or impose a bureau or other agency of state government to regulate the affairs of homeowners’ associations.
In all honesty, the only ones served by this sentence are specialized attorneys and their bank accounts – to the detriment of the homeowners living in these community associations.
While the FLORIDA CONDO ACT (FS718) has many detailed provisions that can be partially and easily enforced by a regulatory agency (Division of Florida Condominiums, Timeshares, and Mobile Homes), approximately 2.5 million homeowners living and/or owning property in these homeowners’ associations are treated like unwanted stepchildren by the Florida legislature.
With the existing, unenforceable statutes in place, it’s a financially risky proposition for retirees and investors to buy property within these communities. Homeowners are left to fight for themselves with no help to enforce the existing laws.
Simple matters, such as elections, record requests or financial issues, turn into expensive lawsuits that can quickly become monsters eating up families’ life savings. Many homeowners run around with blinders, ignoring permanent violations of Florida statutes, because they don’t want to risk spending their last dime on legal bills.
The proper legislation that would make life in homeowners’ associations much easier – and less expensive – is in place, but only for condominium associations.
The provisions contained in FS 720 are stacked against the homeowners, especially since in many associations budget shortfalls caused by unpaid dues and/or foreclosures are causing heavy financials burdens on the owners still paying their dues.
High legal bills are creating an even bigger hardship on the owners still paying the ever-increasing assessments, caused by the fact that the provisions contained in the HOA Act FS 720 provide no easy solutions for simple disputes.
The question that baffles everyone: Why is the Florida legislature unwilling to enact simple laws that would stop most of these shenanigans we are all reading about daily in the media? The established wording from the condo statutes could easily be used for the HOA statutes. Case law and the Florida Administrative Code is in place. Nobody has to reinvent the wheel.
But who fights these bills that would simplify life in HOAs in Florida? The only feasible explanation: The service providers, especially the attorneys that claim to lobby for the associations. They are the only ones who benefit from these useless HOA statutes.
It is definitely easier to fleece the owners if the laws are confusing and can be interpreted any way anybody wants. With the statutes for HOAs it is very easy to create mini-dictatorships and fill their own pockets – if some determined folks so desire. Is that what the folks who “invented” homeowners’ associations had in mind when they created these communities?
Comments: Comments Off on Will The Association’s Denial Of An Architectural Request Withstand Challenge? Many Won’t—Find Out Why
For many homeowners associations, a top priority is ensuring that the homes in the community are maintained in conformity with the “community-wide standard.” But, what is this subjective standard? How is compliance measured? What is the process to be judged when a request to the association’s architectural review committee (ARC) is made? The ARC is instrumental in ensuring that the community-wide standard is met. However, your association may run into a problem if the ARC denies a request from a homeowner if the association has not adopted specific, objective criteria and guidelines on which the ARC can rely.
Sometimes applications to the ARC are denied because the proposed modifications were not “in harmony” with the other homes in the community or did not conform with the “community-wide standard.” However, such a limitation is vague, and a denial based on whether a particular modification is “harmonious” is subjective. Thus, the members are entitled to specific guidelines regarding what is allowed and what is not allowed, and in fact, this is required by law.
The association’s ARC can only be as effective as the objective guidelines and standards drafted into the declaration and board-adopted rules. If your ARC is relying on aesthetics or other subjective criteria that are simply “personal preferences” rather than written, adopted, and published objective standards and guidelines, any disapproval is vulnerable to a successful challenge. In fact, in the seminal case regarding approval of architectural modifications, Young v. Tortoise Island Homeowner’s Ass’n, Inc., 511 So.2d 381 (Fla. 5th DCA 1987), the court held that where the governing documents were silent as to the modification at issue, a denial could not be based on the architectural control board’s opinion regarding “aesthetics, harmony and balance—admittedly very personal and vague concepts.”
In Young, the owners submitted an application to build a flat roof on their home. The homes immediately surrounding the home were all peaked roofs. Nothing in the governing documents prohibited an owner from building a flat roof, and the requested roof complied with all of the specific requirements set out in the governing documents. However, the architectural control board denied the owners’ request because there was a “very strong feeling” that the flat roof would not be “architecturally compatible with the other homes.” In the end, the Youngs built the flat roof despite the association’s disapproval, arguing that the architectural control board had no authority to impose a prohibition against flat roofs. The court agreed with the Youngs, holding that
“In the absence of an existing pattern or scheme of type of architecture which puts a prospective purchaser on notice that only one kind of style is allowed, either in the recorded restrictions or de facto from the unified building scheme built on the subdivision, such a board does not have the power or discretion to impose only one style over another based purely on ‘aesthetic concepts.’”
The flat roof violated no recorded restrictions, no objective rule adopted by the association, and no de facto common existing building style in the community. Therefore, the court held that it was beyond the power of the architectural review board to prohibit the flat roof.
The concept in Young was further codified in 2007 in §720.3035(1), Florida Statutes, which provides that an association or the ARC has the authority to review and approve plans and specifications only to the extent that the authority is specifically stated or reasonably inferred as to location, size, type, or appearance in the declaration or other published guidelines and standards. More specifically §720.3035(1), Florida Statutes, provides that the authority of an association or any architectural, construction improvement, or other such similar committee of an association to review and approve plans and specifications for the location, size, type, or appearance of any structure or other improvement on a parcel, or to enforce standards for the external appearance of any structure or improvement located on a parcel, shall be permitted only to the extent that the authority is specifically stated or reasonably inferred as to such location, size, type, or appearance in the declaration of covenants or other published guidelines and standards authorized by the declaration of covenants.
In other words, the ARC can only approve or deny requested modifications based on objective standards with specificity as to location, size, type, or appearance that are set out in the declaration or other published guidelines and standards. Without specific, objective standards to rely upon, the ARC is at risk of making arbitrary decisions regarding approval. Basing ARC denials on concepts like “aesthetics, harmony, and balance” will land the association in hot water if an owner challenges such denial. It is far safer to base approval or denial on objective standards as set out in the declaration or as adopted by the board.
Creative drafting by an association’s attorney is critical in order to capture those ARC applications where a member may request a modification that is not squarely addressed by the governing documents. In plain English, a “catchall” amendment to the declaration can be artfully drafted that stands for the proposition that, if such a request is made, then the existing state of the community is the applicable standard by which the application is to be judged. For example, if the Tortoise Island Homeowner’s Association had had such a provision in its declaration, then given that there were no flat roofs in the community, the existing state of the community may have provided a lawful basis for the ARC to deny the request, thus possibly leading to a whole different result in the case.
On a related note, there are strict procedural requirements that your association must follow, most especially if the ARC intends to deny an ARC request. It is likely many ARCs do not conduct their activities in conformity with Florida law such that a denial could withstand judicial scrutiny. Pursuant to §720.303(2), Florida Statutes, a meeting of the ARC is required to be open and noticed in the same manner as a board meeting. In other words, notice of the ARC meeting must be posted in a conspicuous place in the community at least 48 hours in advance of the meeting, and the meeting must be open for the members to attend. In addition, pursuant to §720.303(2)(c)3., members of the ARC are not permitted to vote by proxy or secret ballot. Bare bone minutes should be taken as well to create a record of ARC committee decisions, most especially denials.
We hear from many associations that the ARC does not meet openly or notice their meetings. This leaves any decision made by the ARC vulnerable to challenge. If the ARC denies an application but fails to do so at a properly noticed meeting, the owner can challenge the denial claiming that it is not valid as the ARC did not follow proper procedures. Many declarations contain language which provides that if an ARC application is not approved or denied within a certain period of time, the application is deemed approved. In that case, if the ARC’s denial of an application is not valid because the ARC failed to comply with the procedural requirements for the meeting, an application which violates the declaration or the ARC standards may be deemed approved by operation of the declaration! By complying with the provisions of Chapter 720, Florida Statues, your association can avoid that disaster.
Practice tip: Remember that notice of any board meeting at which the board will consider a rule which restricts what an owner can do on their parcel must be mailed, delivered, or electronically transmitted to the members and posted conspicuously on the property not less than 14 days before the meeting.
If your association has not adopted objective ARC standards and guidelines including the “catchall” provision discussed above, now is the time to start! We recommend that you contact your association’s counsel prior to drafting such rules to ensure that the association is in compliance with the requirements of the governing documents and Chapter 720, Florida Statutes.
by Jeffrey Rembaum, Esq. of Kaye, Bender, Rembaum attorneys at law, legal practice consists of representation of condominium, homeowner, commercial and mobile home park associations, as well as exclusive country club communities and the developers who build them. Mr. Rembaum is a Certified Specialist in Condominium and Planned Development Law. He is the creator of ‘Rembaum’s Association Roundup’, an e-magazine devoted to the education of community association board members, managers, developers and anyone involved with Florida’s community associations. His column appears monthly in the Florida Community Association Journal. Every year since 2012, Mr. Rembaum has been selected to the Florida Super Lawyers list and was also named Legal Elite by Florida Trends Magazine. He can be reached at 561-241-4462.
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.
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