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The mandatory funding of all the required reserve funds will make living in these hi-rises very interesting in the next two years

The mandatory funding of all the required reserve funds will make living in these hi-rises very interesting in the next two years

  • Posted: Oct 28, 2022
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MANDATORY RESERVES

By Jan Bergemann

Finally the Florida Legislature got the message they should have gotten 20 years ago: FULLY FUNDED RESERVES ARE MANDATORY!

And even if the legislature gave condo owners a reprieve until December 2025, condo owners should start now to consider their options:

Will they be able to afford the much higher maintenance fees they will have to pay monthly in the future or will these much higher fees break their household budget?

Let’s just face it: For most of the years past condo owners waived reserves in order to keep maintenance fees artificially low – meaning that many of the associations at this point don’t have any reserves worth talking about. Remember: According to media reports the Champlain Tower South had only $700,000 in reserves, but needed about $16M to pay for the necessary repairs.

That will have to change real fast and the fact that many of the required inspections will have to be followed up by costly repairs and maintenance high special assessments are on the horizon for many hi-rise buildings (buildings higher than three floors).

As much as this change to the Florida statutes was long overdue it will definitely price quite a few families out of their homes. But in all reality there is really no other way around it and the fact that many condo owners used the loophole in the statutes that allowed waiving the funding of reserves is now coming back to haunt the owners who in former times dismissed the idea of funding reserves.

We already see condo owners protesting against boards about the problems that are visible in these buildings. The big question in these cases: Does the association have the necessary funds to take care of the needed maintenance and repairs or are the owners willing and able to pay the special assessment the board might have to levy in order to pay for the contractor?

The mandatory funding of all the required reserve funds will make living in these hi-rises very interesting in the next two years – and we will have to see how strong the government agencies tasked with overseeing these new provisions in FS 718 are enforcing these provisions.

Our Blog ( Industry Articles ) can be found on SFPMA.com – between our writers and all members of sfpma we have been for over 15 years keeping our industry up to date with the right Legal, Business and Services Articles. SFPMA sends and publishes these and sends to over 230,000 emails keeping everyone informed.

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Mandatory Condominium & Cooperative Building Inspections and Non-Waivable Reserve Requirement

Mandatory Condominium & Cooperative Building Inspections and Non-Waivable Reserve Requirement

Mandatory Condominium & Cooperative Building Inspections and Non-Waivable Reserve Requirement

The City of Surfside, Champlain Towers South Related Legislation Already in Effect

 

With home insurers leaving Florida in droves, and following pressure from members of both political parties in the legislature to actually do something about it, in May 2022, the governor called a special legislative session to address the problem. A very real concern to the insurers is the effect of both time and inclement weather on Florida’s aging high-rise buildings. Until now, and for the most part, Florida law largely ignored these concerns. Enter Senate Bill 4-D (SB 4-D), which already became effective upon being signed into law by Governor DeSantis on May 26, 2022. This new piece of legislation addresses condominium and cooperative building inspections and reserve requirements. (While this article primarily addresses these new laws in the context of condominium association application, they are equally applicable to cooperative associations.)

By way of background, during the regular legislative session, there were several bills introduced in the Florida House of Representatives and in the Florida Senate addressing building safety issues, but none of them were passed into law due to the inability to match the language of the bills in both the house and the senate which is a requirement for legislation to pass and go to the governor for consideration. As such, it was a little surprising to many observers that the legislature was able to approve SB 4-D in essentially a 48-hour window during the special session in May. The language used in SB 4-D was initially drafted into a proposed bill in November 2021. At that time and during the most recent legislative session, input was provided by many industry professional groups including engineers, reserve study providers, and association attorneys. Many of these industry professionals indicated that there were challenges with some of the language and concepts being proposed in SB 4-D during session.

Notwithstanding these challenges and in an effort to ensure some form of life safety legislation was passed this year, SB 4-D was unanimously approved in both the house and senate and signed by the governor. A plain reading of this well-intended, but in some instances not completely thought-out, legislation evidences these challenges. Some will say it is a good start that will need significant tweaking, which is expected in the 2023 legislative session. Others praise it, and, yet others say it is an overreach of governmental authority, such as an inability to waive or reduce certain categories of reserves. You be the judge. We begin by examining the mandatory inspection and reserve requirements of SB 4-D.

I. Milestone Inspections: Mandatory Structural Inspections For Condominium and Cooperative Buildings. (§553.899, Fla. Stat.)

You will not find these new milestone inspection requirements in Chapters 718 or 719 of the Florida Statutes, but rather in Chapter 553, Florida Statutes, as cited above.

Milestone Inspections

The term “milestone inspection” means a structural inspection of a building, including an inspection of load-bearing walls and the primary structural members and primary structural systems. The aforementioned terms are defined in §627.706, Florida Statutes, and are to be carried out by a licensed architect or engineer authorized to practice in this state for the purposes of attesting to the life safety and adequacy of the structural components of the building and, to the extent reasonably possible, determining the general structural condition of the building as it affects the safety of such building, including a determination of any necessary maintenance, repair, or replacement of any structural component of the building. The purpose of such an inspection is not to determine if the condition of an existing building is in compliance with the Florida Building Code or the fire safety code.

Substantial Structural Deterioration

The term “substantial structural deterioration” means substantial structural distress that negatively affects a building’s general structural condition and integrity. The term does not include surface imperfections such as cracks, distortion, sagging, deflections, misalignment, signs of leakage, or peeling of finishes, unless the licensed engineer or architect performing the phase one or phase two inspection determines that such surface imperfections are a sign of substantial structural deterioration.

Milestone Inspections For Buildings Three Stories or More In Height

A condominium association under Chapter 718 and a cooperative association under Chapter 719 must have a milestone inspection performed for each building that is three stories or more in height by December 31 of the year in which the building reaches 30 years of age, based on the date the certificate of occupancy for the building was issued, and every 10 years thereafter.

Within Three Miles of Coastline

If the building is three or more stories in height and is located within three miles of a coastline, the condominium association or cooperative association must have a milestone inspection performed by December 31 of the year in which the building reaches 25 years of age, based on the date the certificate of occupancy for the building was issued, and every 10 years thereafter.

The condominium association or cooperative association must arrange for the milestone inspection to be performed and is responsible for ensuring compliance.

The condominium association or cooperative association is responsible for all costs associated with the inspection.

If The Certificate of Occupancy was Issued Before July 1, 1992

If a milestone inspection is required under this statute and the building’s certificate of occupancy was issued on or before July 1, 1992, the building’s initial milestone inspection must be performed before December 31, 2024. If the date of issuance for the certificate of occupancy is not available, the date of issuance of the building’s certificate of occupancy shall be the date of occupancy evidenced in any record of the local building official. 

Upon determining that a building must have a milestone inspection, the local enforcement agency must provide written notice of such required inspection to the condominium association or cooperative association by certified mail, return receipt requested. 

Within 180 days after receiving the written notice, the condominium association or cooperative association must complete phase one of the milestone inspection. For purposes of this section, completion of phase one of the milestone inspection means the licensed engineer or architect who performed the phase one inspection submitted the inspection report by email, United States Postal Service, or commercial delivery service to the local enforcement agency.

A Milestone Inspection Consists of Two Phases

(a) PHASE 1—For phase one of the milestone inspection, a licensed architect or engineer authorized to practice in this state must perform a visual examination of habitable and non-habitable areas of a building, including the major structural components of a building, and provide a qualitative assessment of the structural conditions of the building. If the architect or engineer finds no signs of substantial structural deterioration to any building components under visual examination, phase two of the inspection (discussed below) is not required. An architect or engineer who completes a phase one milestone inspection shall prepare and submit an inspection report.

(b) PHASE 2—A phase two of the milestone inspection must be performed if any substantial structural deterioration is identified during phase one. A phase two inspection may involve destructive or nondestructive testing at the inspector’s direction. The inspection may be as extensive or as limited as necessary to fully assess areas of structural distress in order to confirm that the building is structurally sound and safe for its intended use and to recommend a program for fully assessing and repairing distressed and damaged portions of the building. When determining testing locations, the inspector must give preference to locations that are the least disruptive and most easily repairable while still being representative of the structure. An inspector who completes a phase two milestone inspection must prepare and submit an inspection report.

Post-Milestone Inspection Requirements

Upon completion of a phase one or phase two milestone inspection, the architect or engineer who performed the inspection must submit a sealed copy of the inspection report with a separate summary of, at minimum, the material findings and recommendations in the inspection report to the condominium association or cooperative association, and to the building official of the local government which has jurisdiction. The inspection report must, at a minimum, meet all of the following criteria:

  1. Bear the seal and signature, or the electronic signature, of the licensed engineer or architect who performed the inspection.
  2. Indicate the manner and type of inspection forming the basis for the inspection report.
  3. Identify any substantial structural deterioration within a reasonable professional probability based on the scope of the inspection, describe the extent of such deterioration, and identify any recommended repairs for such deterioration.
  4. State whether unsafe or dangerous conditions, as those terms are defined in the Florida Building Code, were observed.
  5. Recommend any remedial or preventive repair for any items that are damaged but are not substantial structural deterioration.
  6. Identify and describe any items requiring further inspection.

Local Government Enforcement

A local enforcement agency may prescribe timelines and penalties with respect to compliance with the milestone inspection requirements.

A board of county commissioners may adopt an ordinance requiring that a condominium or cooperative association schedule or commence repairs for substantial structural deterioration within a specified timeframe after the local enforcement agency receives a phase two inspection report; however, such repairs must be commenced within 365 days after receiving such report. If an association fails to submit proof to the local enforcement agency that repairs have been scheduled or have commenced for substantial structural deterioration identified in a phase two inspection report within the required timeframe, the local enforcement agency must review and determine if the building is unsafe for human occupancy.

Board’s Duty After Obtaining The Milestone Report

Upon completion of a phase one or phase two milestone inspection and receipt of the inspector-prepared summary of the inspection report from the architect or engineer who performed the inspection, the association must distribute a copy of the inspector-prepared summary of the inspection report to each unit owner, regardless of the findings or recommendations in the report, by United States mail or personal delivery and by electronic transmission to unit owners who previously consented to receive notice by electronic transmission; must post a copy of the inspector-prepared summary in a conspicuous place on the condominium or cooperative property; and must publish the full report and inspector-prepared summary on the association’s website, if the association is required to have a website.

Who Pays for The Milestone Inspection?

Pursuant to §718.112, Florida Statutes, if an association is required to have a milestone inspection performed, the association must arrange for the milestone inspection to be performed and is responsible for ensuring compliance with all of the requirements thereof. The association is responsible for all costs associated with the inspection.

Failure to Obtain the Milestone Inspection

If the officers or directors of an association willfully and knowingly fail to have a milestone inspection performed pursuant to §553.899, Florida Statutes, such failure is a breach of the officers’ and directors’ fiduciary relationship to the unit owners.

Manager’s Duty

If a community association manager or a community association management firm has a contract with a community association that has a building on the association’s property that is subject to milestone inspection, the community association manager or the community association management firm must comply with the requirements of performing such inspection as directed by the board.

Exemptions

For clarity, the otherwise required milestone inspection does not apply to a single family, two-family, or three-family dwelling with three or fewer habitable stories above ground.

Florida Building Commission Requirements

The Florida Building Commission must review the milestone inspection requirements and make recommendations, if any, to the legislature to ensure inspections are sufficient to determine the structural integrity of a building. The commission must provide a written report of any recommendations to the governor, the president of the senate, and the speaker of the house of representatives by December 31, 2022. 

The Florida Building Commission must consult with the State Fire Marshal to provide recommendations to the legislature for the adoption of comprehensive structural and life safety standards for maintaining and inspecting all types of buildings and structures in this state that are three stories or more in height. The commission must provide a written report of its recommendations to the governor, the president of the senate and the speaker of the house of representatives by December 31, 2023.

II. Structural Integrity Reserve Studies and Mandatory Reserves:

The reserve legislation set out in §718.112 (f)(2)(a), Florida Statutes, is, for all intents and purposes, re-written. Prior to examining these most recent revisions, it is necessary to first examine the definitions set out in §718.103, Florida Statutes, where a brand-new term is added as follows: 

Structural integrity reserve study means a study of the reserve funds required for future major repairs and replacement of the common areas based on a visual inspection of the common areas applicable to all condominiums and cooperative buildings 3 stories or higher. 

Hereafter, the structural integrity reserve study is referred to as “SIRS.” Now we can turn our attention to the requirements of the SIRS as set out in §718.112 (f)(2)(a), Florida Statutes.

The Structural Integrity Reserve Study (required for all condominium and cooperative buildings three stories or higher regardless of date of certificate of occupancy):

An association must have a SIRS 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:

  1. Roof
  2. Load-bearing walls or other primary structural members
  3. Floor
  4. Foundation
  5. Fireproofing and fire protection systems
  6. Plumbing
  7. Electrical systems
  8. Waterproofing and exterior painting
  9. Windows
  10. 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.

The SIRS may be performed by any person qualified to perform such study. However, the visual inspection portion of the structural integrity reserve study must be performed by an engineer licensed under Chapter 471 or an architect licensed under Chapter 481. 

As further set out in the legislation, at a minimum, “a structural integrity reserve study must identify the common areas being visually inspected, state the estimated remaining useful life and the estimated replacement cost or deferred maintenance expense of the common areas being visually inspected, and provide a recommended annual reserve amount that achieves the estimated replacement cost or deferred maintenance expense of each common area being visually inspected by the end of the estimated remaining useful life of each common area.”

The amount to be reserved for an item is determined by the association’s most recent structural integrity reserve study that must be completed by December 31, 2024. If the amount to be reserved for an item is not in the association’s initial or most recent structural integrity reserve study or the association has not completed a structural integrity reserve study, the amount must be computed using a formula based upon estimated remaining useful life and estimated replacement cost or deferred maintenance expense of each reserve item.

If the condominium building is less than three stories, then the legislation provides that “in addition to annual operating expenses, the budget must include reserve accounts for capital expenditures and deferred maintenance. These accounts must include, but are not limited to, roof replacement, building painting, and pavement resurfacing, regardless of the amount of deferred maintenance expense or replacement cost, and any other item that has a deferred maintenance expense or replacement cost that exceeds $10,000.” 

The association may adjust replacement reserve assessments annually to take into account any changes in estimates or extension of the useful life of a reserve item caused by deferred maintenance. 

If an association fails to complete a SIRS, such failure is a breach of an officer’s and director’s fiduciary relationship to the unit owners.

Non-Waivable and Waivable Reserves In The Unity Owner-Controlled Association

As to the SIRS, the legislation is patently clear that unit owners may not vote for no reserves or lesser reserves for items set forth in the SIRS report. There is ongoing debate among attorneys in regard to whether a condominium under three stories can waive or reduce reserves for any of the reserve items required to be in the SIRS that are included in the under- three-story condominium reserve—for example, roof and painting. (For those interested, examine lines 1029 to 1033 and 1050 to 1071 in SB 4-D.)

Mandatory Reserves In The Developer-Controlled Association

Before turnover of control of an association by a developer to unit owners other than a developer pursuant to §718.301, Florida Statutes, the developer-controlled association may not vote to waive the reserves or reduce the funding of the reserves. (Previously, a developer could fully waive all reserves for the first two years, meaning this is a monumental change.)

Pre-Turnover Developer Duty

Before a developer turns over control of an association to unit owners other than the developer, the developer must have a SIRS completed for each building on the condominium property that is three stories or higher in height.

III. Official Records

Official records of the condominium and cooperative association include structural integrity reserve studies, financial reports of the association or condominium, and a copy of the inspection reports and any other inspection report relating to a structural or life safety inspection of condominium or cooperative property. 

In addition to the right to inspect and copy the declaration, bylaws, and rules, renters have the right to inspect the milestone inspection report and structural integrity reserve study inspection reports as well.

Structural integrity reserve studies must be maintained for at least 15 years after the study is completed. In addition, inspection reports and any other inspection report relating to a structural or life safety inspection of condominium property must be maintained for 15 years after receipt of such report.

IV. Association Websites

In addition to other positing requirements, the inspection reports described above and any other inspection report relating to a structural or life safety inspection of condominium property and the association’s most recent structural integrity reserve study must be posted to the website.

V. Jurisdiction of Division of Condominiums, Timeshares and Mobile Homes

Pre-turnover, the Division of Florida Condominiums, Timeshares, and Mobile Homes (Division) may enforce and ensure compliance with rules relating to the development, construction, sale, lease, ownership, operation, and management of residential condominium units, and complaints related to the procedural completion of milestone inspections. After turnover has occurred, the Division has jurisdiction to investigate complaints related only to financial issues, elections, and the maintenance of and unit owner access to association records, and the procedural completion of structural integrity reserve studies.

VI. New Reporting Requirements For All Condominium and Cooperative Associations

On or before January 1, 2023, condominium associations existing on or before July 1, 2022, must provide the following information to the Division in writing, by email, United States Postal Service, commercial delivery service, or hand delivery, at a physical address or email address provided by the division and on a form posted on the division’s website:

  1. The number of buildings on the condominium property that are three stories or higher in height.
  2. The total number of units in all such buildings.
  3. The addresses of all such buildings.
  4. The counties in which all such buildings are located.

An association must provide an update in writing to the division if there are any changes to the information in the list within six months after the change.

VII. Applicable To All Sellers of Units

As a part of the sales process, the seller of a condominium or cooperative unit and developers must provide to potential purchasers a copy of the inspector-prepared summary of the milestone inspection report and a copy of the association’s most recent structural integrity reserve study or a statement that the association has not completed a structural integrity reserve study.

VIII. Glitches

As with any new legislation of such a substantial nature, there often follow in subsequent years what are referred to as “glitch bills” which help provide additional clarity, remove ambiguity, and fix unintended errors. Some observe are (i) the term “common areas” is used in the legislation when in fact the correct term is “common element;” (ii) clarity needs to be provided regarding whether reserve items that are required to be in SIRS, but show up in the under-three-story reserves, such as paint and paving, can be waived or reduced by the membership; and (iii) for those buildings that are within three miles of the coastline, additional clarity could be provided to provide better guidance as to how to perform the measurement.

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ATTN: CONDOMINIUM & COOPERATIVE Required Building Reporting Deadline January 1, 2023 From the Florida Department of Business & Professional Regulation

ATTN: CONDOMINIUM & COOPERATIVE Required Building Reporting Deadline January 1, 2023 From the Florida Department of Business & Professional Regulation

ATTN: CONDOMINIUM & COOPERATIVE

Required Building Reporting

Deadline January 1, 2023

From the Florida Department of Business & Professional Regulation

718.501(3)(a), F.S./Senate Bill SB4D requires all condominium and cooperative associations with buildings 3 stories or higher to report the following information to the Division of Florida Condominium, Timeshares and Mobile Homes on or before January 1, 2023.

  • The number of buildings on the condominium property that are three (3) stories or higher in height.
  • The total number of units in all such buildings
  • The addresses of all such buildings.
  • The counties in which all such buildings are located.

 

You may submit this information electronically at: ctmhbuildingreporting@myfloridalicense.com     

or

by USPS mail or hand delivery to:

Division of Florida Condominiums, Timeshares and Mobile Homes

Attention: Building Reporting

2601 Blair Stone Road Tallahassee, FL 32399-1030

For emailing or USPS mailing, we prepared this form for you to use: Click HERE.

condo-cooperative-building-reporting_web

 

You may also provide your association’s information to the Division by simply completing and submitting the Building Reporting form, via this link:

http://www.myfloridalicense.com/DBPR/condos-timeshares-mobile-homes/building-report/

 

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Violation Remedies: Self Help vs. Injunction by Jeffrey Rembaum, Esq. of Kaye, Bender, Rembaum

Violation Remedies: Self Help vs. Injunction by Jeffrey Rembaum, Esq. of Kaye, Bender, Rembaum

  • Posted: Jul 14, 2022
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Imagine this scenario: you are on the board of directors of your association. The association has repeatedly requested that an owner pressure wash their dirty roof to bring it into compliance with the community standards, but the owner refuses to do so. The association has already sent a number of demand letters and even levied a fine and perhaps a suspension of use rights, too, but the owner still will not comply. What is the association’s next step?

  • Is it time to file a lawsuit to compel compliance? Chapters 718 (governing condominiums), 719 (governing cooperatives), a 720 (governing homeowners associations), Florida Statutes, authorize the association to bring an action at law or in equity to enforce the provisions of the declaration against the owner.

or

  • Is it time for the association to use its “self-help” remedy? In fact, many declarations contain such “self-help” language, which authorizes the association to cure the violation on behalf of an owner and even, at times, assess the owner for the costs of doing so. These “self-help” provisions generally contain permissive language, meaning that the association may, but is not “obligated” to, cure the violation.

 

Assume that the association’s declaration contains both the permissive “self-help” remedy and the right to seek an injunction from the court that orders the owner to clean their roof or else be in contempt of court. Thus, it would appear the association has a decision to make: (i) go to court to seek the injunction; or (ii) enter onto the owner’s property, pressure clean the roof, and assess the costs to the owner. Not so fast! Recent case law from Florida’s Second District Court of Appeal affirmed a complication to what should be a simple decision, discussed in greater detail below.

In two cases decided 10 years apart, Florida’s Second District Court of Appeal decided that an association did not have the right to seek an injunction to compel an owner to comply with the declaration if the declaration provided the association the authority to engage in “self-help” to remedy the violation. Prior to a discussion of the cases, a brief explanation of legal and equitable remedies is necessary.

There is a general legal principle that, if a claimant has a remedy at law (e.g., the ability to recover money damages under a contract), then it lacks the legal basis to pursue a remedy in equity (e.g., an action for injunctive relief). In the association context, a legal remedy would be to exercise the “self-help” authority granted in the association’s declaration. An equitable remedy would be to bring an action seeking an injunction to compel an owner to take action to comply with the declaration (e.g., compelling the owner to pressure wash their roof). A court will typically only award an equitable remedy when a legal remedy (such as “self-help”) is unavailable, insufficient, or inadequate.

This distinction is first illustrated in Alorda v. Sutton Place Homeowners Association, Inc., 82 So. 3d 1077 (Fla. 2d DCA 2012). In Alorda, the owners failed to provide the association with proof of insurance coverage as required by the declaration. The association sent multiple demand letters to the owners, but they failed to comply. The declaration provided, in pertinent part, that “[t]he owner shall furnish proof of such insurance to the Association at the time of purchase of a lot and shall furnish proof of renewal of such insurance on each anniversary date. If the owner fails to provide such insurance the Association may obtain such insurance and shall assess the owner for the cost of the same in accordance with the provisions of this Declaration” (emphasis added). In accordance with the foregoing, the association had the option to purchase the insurance on behalf of the owners and assess them for the costs of same.

However, the association chose instead to file a complaint against the owners seeking the equitable remedy of injunctive relief, asking the court to enter a permanent mandatory injunction requiring the owners to obtain the required insurance coverage. The owners then filed a motion to dismiss the suit arguing that even though they had violated a provision of the declaration, the equitable remedy of an injunction is not available because the association had an adequate remedy at law. In other words, the owners argued that, because the association could have, pursuant to the declaration, undertaken the ”self-help” option by purchasing the required insurance and assessing it against the owners, they had an available legal remedy and, therefore, the equitable remedy sought (a mandatory injunction) was not available to the association. The court, citing to a different case, Shaw v. Tampa Electric Company, 949 So.2d 1006 (Fla. 2d DCA 2007), explained that a mandatory injunction is proper only where a clear right has been violated, irreparable harm has been threatened, and there is a lack of an adequate remedy at law. As the association had an adequate remedy at law (the authority to purchase the insurance on behalf of the owners), the third requirement was not met. Therefore, the court held that the association failed to state a cause of action and dismissed the case. (This case might be decided differently today as it appears the insurance marketplace will not permit an association to purchase insurance for a unit that it does not own, so the legal remedy presumed available to the association would be inadequate).

Similarly, in the recent case of Mauriello v. The Property Owners Association of Lake Parker Estates, Inc., Case No. 2D21-500 (Fla. 2d DCA 2022), Florida’s Second District Court of Appeal considered the award of attorneys’ fees after the dismissal of the association’s action for an injunction. Ultimately, the court held that the owners were the prevailing party as the association could not seek an injunction because the association had an adequate remedy at law. In Mauriello, the owners failed to maintain their lawn and landscaping in good condition as required by the declaration. As such, the association filed a complaint seeking a mandatory injunction ordering the owners to maintain the lawn and landscaping in a “neat condition.” The association’s declaration contained similar language to the declaration at issue in Alorda. The declaration provided that, if an owner failed to perform any maintenance required by the declaration, the association, after written notice, “may have such work performed, and the cost thereof shall be specifically assessed against such Lot which assessment shall be secured by the lien set forth in Section 9 of this Article VI” (emphasis added). In other words, the association had the permissive “self-help” authority pursuant to the declaration.

The facts of this case were complicated by the sale of the home in the middle of the suit. The new owners voluntarily brought the home into compliance with the declaration, and the case became moot. However, the parties continued to fight over who was entitled to prevailing party attorneys’ fees. The association argued it was entitled to prevailing party attorneys’ fees because the voluntary compliance was only obtained after the association was forced to commence legal action. The owners, citing Alorda, argued that they were entitled to prevailing party attorneys’ fees as the association’s complaint never stated a cause of action in the first place. They argued that the complaint should have been dismissed at the outset because the association sought an equitable remedy (mandatory injunction) when a legal remedy was available to the association (exercise of “self-help” authority).

Florida’s Second District Court of Appeal agreed with the owners that Alorda was controlling. The Court explained that, as in Alorda, “the association’s declaration gave it the option of remedying the alleged violation itself, assessing the owner for the cost, and if the owner failed to pay, placing a lien on the property and foreclosing if it remained unpaid.” As such, the association had an adequate remedy at law and could not seek the equitable remedy of an injunction, which was initially sought by the association. Because the mandatory injunction was not available to the association, the association’s complaint failed to state a proper cause of action and, thus, should have been dismissed by the trial court at the outset. Therefore, the association was not entitled to its sought-after prevailing party attorneys’ fee award, which is otherwise granted if a party comes into compliance after the lawsuit is served.

Sections 718.303 (as to condominiums), 719.303 (as to cooperatives), and 720.305 (as to homeowners associations), Florida Statutes, contain similar language that specifically authorizes the association to bring actions at law or in equity, or both, in the event an owner fails to comply with the governing documents of the association. However, neither the Court in Alorda nor the Court in Mauriello addressed the association’s statutory authority to bring an injunction against an owner who fails to comply with the requirements of the declaration, but rather found that the association must use the “self-help” remedy since it was available to cure the violation.

Notwithstanding the Alorda and Mauriello decisions rendered by Florida’s Second District Court of Appeal, past appellate court decisions from other appellate jurisdictions in Florida have permitted community associations to pursue claims for injunctive relief against violating owners so long as a violation of the restrictive covenant is alleged in the complaint. As such, the Alorda and Mauriello cases appear to be departures from the established principle. Additionally, as both decisions came from Florida’s Second District Court of Appeal, the decisions are certainly binding on those associations within the jurisdiction of the Second District, but there has been no indication that other districts will follow suit. However, there is risk that other appellate district courts may be persuaded by the holdings of Alorda and Mauriello.

As such, if your association’s declaration contains a “self-help” provision, and your association chooses to seek an injunction against an owner rather than pursue “self-help,” the board should definitely discuss the issue in greater detail with the association’s legal counsel prior to proceeding. 

Find out more about KBR Legal – If your community is looking for representation give us a call.

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. Most of our attorneys are Board Certified in Condominium and Planned Development Law.

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Property Management Requirements in Florida – SFPMA

Property Management Requirements in Florida – SFPMA

  • Posted: Jul 10, 2022
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Property Management Requirements in Florida

State of Florida Property Management Association; On our Website you can find on our Licensing Course Partners the Licensing Courses are offered to you to become a CAM Manager in the State of Florida!

 

Find out about Licensing and Board Member Courses

 

Questions and Answers you might have

1. Must a Florida property management company have a real estate broker’s license

YES. Key components of property management (renting and leasing) are considered a real estate activity under existing Florida real estate licensing laws. A property manager needs a brokers license if he or she is paid by commission, and is handling rentals and leases for others.

No license is required for managing personally owned properties. There is a “Property Manager” license or certificate you should have. Also, certain rental properties need a license through the Div. of Hotels and Restaurants.

 

2. Are there any exceptions to the requirement that a Florida property manager have a broker’s license?

YES. For example, if a property owner employs someone to manage their property, and that “employee is paid a salary”, as opposed to being paid a commission or on a transactional basis, a broker’s license is not required.

For more information about these and other Florida property management requirements and exceptions, please contact the Florida Real Estate Commission.

Before hiring a property manager to manage your Florida rental property, you should always check that he or she is licensed appropriately. You can check the license status of Florida property managers at the Florida Department of Business and Professional Regulation’s Licensee Search webpage.

3. Must Florida community association managers have a real estate broker’s license?

No. However, a Community Association Manager license is required if someone receives compensation for providing management services for the following types of associations:

  • An association with ten or more units
  • An association with a budget of $100,000 or greater

 

4. Florida Real Estate Broker License Requirements

Florida real estate broker licensing requirements include:

  • Age: Must be at least 18 years of age.
  • High School: Must have a high school diploma or equivalent.
  • Experience: Must have held a current real estate sales associate license for at least 24 months during the 5 year period immediately preceding becoming a licensed broker.
  • Education: Successfully complete a Florida Real Estate Commission approved pre-licensing course for brokers, consisting of 72 classroom hours and covering specified topics. Courses are valid for licensure purposes for two years after completion. In addition, successfully complete a FREC-approved post-licensing course for brokers, consisting of 60 classroom hours before the initial broker license expires.
  • Exam: Pass the Florida Real Estate Broker Examination with a grade of at least 75.
  • Fee: $115 ($20 application fee; $90 license fee; $5 unlicensed activity fee).
  • Application: complete and submit broker license application which is available online.

 

5. Florida Real Estate Salesperson License Requirements

Florida real estate salesperson licensing requirements include:

  • Age: Must be at least 18 years of age.
  • High School: Must have a high school diploma or equivalent.
  • Education: Successfully complete a Florida Real Estate Commission 63-hour sales associate course.
  • Trustworthiness: Must be of good moral character; must have a background check and submit fingerprints.
  • Exam: Pass the Florida Real Estate Sales Associate Examination with a grade of at least 75%

 

6. Florida Community Association Manager License Requirements

Florida community association manager licensing requirements include:

  • Age: Must be at least 18 years of age.
  • Education: Must complete at least 18 hours of pre-licensure education from an approved provider.
  • Trustworthiness: Must be of good moral character; must have a background check and submit fingerprints.
  • Exam: Pass the Community Association Management Exam.
  • Then Pay the License fee in your state.

Become a Property Management (CAM) in Florida

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Hurricane Preparation for your Building – Don’t wait, Make a Plan Today

Hurricane Preparation for your Building – Don’t wait, Make a Plan Today

  • Posted: Jul 10, 2022
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Hurricane Preparation for your Building

Don’t wait: Make a Plan Today

Finding Trusted Companies that work with our Industry is important!

We Provide Insurance Public Adjusters and Legal Experts Roofing Companies and cleanup and Tree and Lawncare Members to handle Storm Damage & Claims for your Properties!

Find more on our website >>>

FloridaAdjusting.com

WHAT WE PROVIDE CONDO & HOA’S

Property Inspections & Site Analysis

Review of your Insurance Policy

Damage Report Backing up the Claim

Loss Estimates Documentation

Negotiation and Settlement with Insurance Companies

 

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We Celebrate Independence Day, with Cohen Law Group and Members of SFPMA

We Celebrate Independence Day, with Cohen Law Group and Members of SFPMA

  • Posted: Jul 05, 2022
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We Celebrate and Honor Our Heros
We Celebrate Independence Day
As we celebrate our nation’s Independence Day, let’s remember the American heroes who lost their lives in the battle for the freedom we are enjoying today. We are indebted to our national heroes who have fought and continue to fight for this country.
I served in the United States Army for four years. Because of the GI Bill, I was able to attend college and become an attorney. My military service has helped me grow Cohen Law Group into a place where my team and I can continue to serve our community every day.
As patriotic citizens, let’s put extra effort into performing our own civic responsibilities. Every American’s contribution towards moving this nation forward is important. We must always be mindful of how our actions or inaction affect the well-being of others.
Today we celebrate the honor it is to be an American. We celebrate those who have helped our incredible nation progress. We celebrate all that America will become.
We wish you and your family a safe and happy Independence Day!
With Respect and Gratitude,
Harvey Cohen Signature
Harvey V. Cohen, President

With Respect and Our Thanks for your Service from all of us at SFPMA.COM

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These new Florida laws go into effect on Friday July 1st.

These new Florida laws go into effect on Friday July 1st.

  • Posted: Jul 01, 2022
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ORLANDO, Fla. – On Friday, dozens of new laws will take effect in Florida kicking off the month of July. The laws cover a range of topics from school safety to smoking on the beach.

Here are a few of the laws that take effect July 1: 

THE FLORIDA CLEAN AIR ACT

This means smoking will no longer be allowed on Florida beaches. Local governments can restrict smoking on public beaches and in parks.  That also goes for littering: You could face a strict fine for tossing a cigarette butt on the beach.

Environmental experts say this will help not only the health of people but sea life too.

PARENTAL RIGHTS IN EDUCATION

Widely dubbed the “Don’t Say Gay” bill by critics, the law bans teachers from giving classroom instruction on “sexual orientation” or “gender identity” in kindergarten through third grade.

K-12 EDUCATION

A new K through 12 law concerning controversial books also goes into effect on Friday.

The law requires school districts to have a procedure in place that allows parents to see all of the books in the library and classroom.  The law also gives parents the opportunity to review all books and set curriculum standards.

Besides books, the law creates a 12-year term limit for school board members.

 

MIYA’S LAW

The new law will require apartment landlords to conduct background checks on employees, a response to the September murder of a Valencia College student. Criminal and sexual-offender background checks will be required for apartment-complex employees. Also, tenants will have to be given 24 hours’ notice before workers can enter apartments.

The measure was crafted after the death of 19-year-old Miya Marcano, who was found dead a week after she went missing from her Orlando apartment.

MILK BANK LAW

This will make it possible for low-income mothers to have access to free donated breast milk. The bill authorizes the Agency for Health Care Administration to pay for donor milk to distribute to families on Medicaid if they want it.

LOUD CAR MUSIC

HB 1435 will allow officers to give a ticket to drivers who are playing music so loud that it can be heard 25-feet from the vehicle. The bill specifically mentions car music playing too loudly near churches, schools, or hospitals.

NEW STATE DESSERT

The battle over dessert will finally be over!  On Friday, strawberry shortcake will be the official Florida state dessert. That’s leaving a sour taste in the mouths of people who have loved key lime pie all these years. However, key lime is the state’s official pie.

SCHOOL SAFETY

This law requires a more detailed security plan. It requires that schools have a guide to reunite students with family in the event of an emergency. The law sets rules for emergency drills requiring law enforcement officers who will be responding to the emergency to be there and participate.

It even addresses student mental health.  At least 80 percent of school personnel will be required to be certified in youth health awareness training, beginning July 1 of next year.

BOATING SAFETY ACT

Just in time for the July Fourth weekend, this is allowing the courts to impose a fine for boating collisions and accidents.

The law requires certain boating safety education courses or temporary certificate exams to include items like dangers associated with passenger safety, operating a boat or jet ski near a person who is in the water, and proper use of engine cutoff switches. It also mentions companies that rent and provide water sport activities and instruction must use a working engine cutoff switch.

FLORIDA TAX HOLIDAY

Stock up on those diapers! This is the opportunity to buy certain items, including diapers, without paying Florida state sales tax.  A tax holiday for children’s diapers, books, clothing and shoes will be in effect for one year.

School supplies including clothing, wallets, and bags will have tax exemptions starting July 25 and lasting until August 7. Now that hurricane season is here, you may want to consider buying impact-resistant windows and doors, which will remain tax-free for the next two years.

MENTAL HEALTH AND SUBSTANCE USE DISORDERS

The new law aims to change how Florida cares for these individuals by recognizing certified peer specialists as a support role in recovery. These are typically people who have recovered from substance abuse and mental illness and are helping others get through similar situations.
Under the new law, family members and caregivers will also be eligible for certification. Specialists must undergo background checks and pass a competency exam before being certified.

FLORIDA IDENTIFICATION CARDS

This new law allows Floridians easier access to those cards in cases of financial hardship or failing a driver’s test. If someone can’t afford a new card, they can get one for free as long as they have a valid voter’s registration card.

The same goes for anyone 80 years and older who cannot get a new driver’s license because they failed the vision test.

STUDENT ASSESSMENTS

The Florida Standards Assessments (FSA) will be eliminated and the State Academic Standards will take effect.

The law removes standardized testing in schools and replaces it with three different tests throughout the year to monitor progress. Those tests will take place at the start, middle, and end of the school year.

PERSONAL FINANCE EDUCATION BILL

Florida high school students will be required to take a financial literacy course as a condition for graduation.

The financial literacy course would have to include instruction on types of bank accounts and how to open and manage accounts, completing loan applications and computing federal income taxes.

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Here are a few tips to keep those clients happy, and increase customer retention in the service industry.

Here are a few tips to keep those clients happy, and increase customer retention in the service industry.

  • Posted: Apr 22, 2022
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Here are a few tips to keep those clients happy, and increase customer retention in the service industry.

When you’re in the service industry, nothing is more important than keeping your clients happy. Entrepreneurs are married to their business, right? Well, your clients are your wife, and a happy wife is a happy life. Some people naturally excel in customer service. They have more empathy, listen better, and were born kind to the core. God bless them. Others, like me, have to develop a knack for customer service and find ways to fight the urge to… well, punch someone in the face.

Remember YOU can send SFPMA Articles, Sales, Projects We will send to Clients all over Florida. A a member of SFPMA you should get involved and make the most of your membership.  ideas: post articles, share your membership page, Log into the members portal for your own marketing ( Use the listed Managers List and let them also know what you do and how you can help them, We send to them all the time (over 230,000 emails sent in our weekly  Email Blast to clients/members all over Florida, Is your information part of them?.)

1. Under Promise, Over Deliver

Topping off the list is this old adage, I’m sure you’ve heard it before. Humans naturally overestimate themselves when it comes to doing work. They see a task or think about how long it will take and respond in kind. What we fail to think about are all the other things we need to get done, or the distractions we face on a regular basis. If you think you can get something done in one day, tell them it will take one week. If you finish in a day, they will be pleasantly surprised.

2. Manage Expectations

This is related to #1, but I’d like to focus more on the process. Having a process and explaining this to your clients from the start is the best way to manage expectations. If you don’t want your clients to call you every day or every hour, you should tell them from the beginning how client communication works — that you will have weekly or bi-weekly calls and other questions can be submitted via email. If you don’t want to go back and forth over design changes forever, tell them from the beginning that they have 2 rounds of feedback, and anything above that will be billed hourly.

3. Be Transparent: Don’t be afraid to say “I Don’t Know”

Everyone thinks that your clients come to you because you’re the expert. You should have all the answers, and that’s why they hired you. The truth is, you may be great at what you do, but you do not have all the answers. Things are constantly changing and your client may learn about something before you do. That’s okay. If you’re ever in a situation where you don’t know something, say “I don’t know, but let me do my research and get back to you.”

4. Mo’ Money, Less Problems

My grandmother used to say, “If it’s a problem that can be solved with money, it’s not really a problem.” Growing up I’d hear this a lot, but it took me 8 years in business to really grasp what this meant. It took experience.

Early on, if a client was unhappy or didn’t feel that I was adding enough value, I’d say something like “Well, I’m sorry you feel that way, I’ll try and do better, but I did the work so pay me”. I know you’ve been there, but believe me when I tell this will create friction in the relationship and potentially lose you a client for life. The better response is “I’m sorry you feel that way. I’m happy to refund you your money for the last month and we can find someone that may be a better fit.” Chances are they will appreciate the humility and decide to keep working with you. It works like a charm.

5. Get To Know Your Clients on a Personal Level

Becoming friends with my clients is something I’ve put a lot of emphasis on because I’ve witnessed the power of this first hand. Nearly all of my clients would call me a friend today, and that’s because I stay up on what’s going on in their personal lives. Are they taking a trip? Do they have a girlfriend, or are they married with kids? What other projects are they working on? When you know this information, you can start every call or meeting with a personal touch, immediately changing the tone of the conversation from a business meeting, to a relaxed conversation between partners.

“How you think about your customers influences how you respond to them.” — Marilyn Suttle

6. Share Valuable Content and Information

One of my personal favorite client interactions is sharing valuable content from credible sources with my clients. If I learn something new in one of the email digests I receive (Product Hunt, Launch, Morning Brew) that relates to their market or industry, I share it with them. It lets them know that a) I’m always learning about my industry, and b) I’m thinking about them. It could spark a conversation that could lead to new work or a shift in strategy, but either way, it brings you a little closer together.

7. Call Your Clients Regularly

The key to a positive relationship is communication. I like to schedule calls with all of my clients either every week or every month, and set some touch points to reach out to them randomly to catch up. We even tried creating an app for this call KIT List (Keep In Touch), which send you reminders to call your clients. Ask them how they feel about the service you’re providing, on a scale from 1–10, and if it’s not a 10, ask what you can do to make it a 10.

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SFPMA: The reversal of wearing Masks. This is great news for many, now you do not have to put on the masks if you dont wish to.

SFPMA: The reversal of wearing Masks. This is great news for many, now you do not have to put on the masks if you dont wish to.

  • Posted: Mar 06, 2022
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SFPMA has been monitoring the COVID-19 & Omicron and its impact on our industry. Mask Mandates are Changing!

We are encouraging all members, Property Managers, Board Members for Condo and HOA’s and the industry in general to follow:

We understand that everyone has questions:

It is important to recognize we are not health care professionals. We have been looking to the experts. The CDC and other qualified health officials should continue to be the primary source of current information and guidance. Were offering general, precautionary guidance from officials and adding some common-sense guidelines for our industry.

Mask Mandates are changing!

Many States have already set as requirements for businesses, schools and Offices all over the US. The reversal of wearing Masks. This is great news for many, now you do not have to put on the masks if you dont wish to. As we go forward some that are at risk still will protect themselves, while others wont put them on. Dont get mad at them or start a problem…. You dont know what they are doing in Their Live! they might have a lower immune system in their bodies? they might take the stand that masks dont work? they even may believe in the Science or lack of?

Every person has the right to keep wearing a mask or not! so work with your group, community and management to find a solution you can adapt to keep everyone in your buildings safe. this could mean, in the common areas, with visitors and guests inside and outside your buildings. its best to have an open discussion with a group. find out what they think? and put in place rules to keep everyone safe.

Thank You, Be Safe. SFPMA

We know it’s a balancing act for community association leaders— and the desire to keep residents and guests safe as the face mask debate continues— even for the fully vaccinated. ( Part of this article copied from: Covid Masks) We are all working together for the safety for all.

As some local jurisdictions and/or states lift and others reinforce mask mandates, what does this mean for homeowners associations and condominium communities with shared spaces including—fitness centers, clubhouses, lobby areas, and mailrooms? We contacted CAI members, practicing common-interest law to share an update on face masks in common areas. From the outset of the pandemic, Edmund Allcock, a partner with Marcus, Errico, Emmer & Brooks in Braintree, Mass., and a fellow in CAI’s College of Community Association Lawyers (CCAL), encouraged community associations to follow recommendations from the Centers for Disease Control and Prevention, as well as state and local guidelines, to mitigate the spread of COVID-19.

“At the beginning of the pandemic, we recommended closure of (common areas),” says Allcock. “Since the development of the vaccine, everything seems to have reopened, so I do not see why the clubhouse, or the gym should be any different.”

In Washington, application of state and local health mandates to community associations have been inconsistent, notes Anthony L. Rafel, managing partner at Rafel Law Group in Seattle, and a CCAL fellow. “The governor’s proclamations and the state secretary of health’s orders requiring masks in indoor congregate spaces make no exception for community associations,” he explains. “We’ve advised our community association clients that the requirements are applicable to common areas.”

Meanwhile, the California Department of Public Health has clarified that “indoor public settings” applies to board and commission meetings, but there is some disagreement as to whether community associations have to follow the state’s mask mandate, says Nathan R. McGuire, managing partner at Adams Stirling in Northern California, and a CCAL fellow. McGuire notes that his firm is advising that community associations are not public. Therefore, the guidance does not technically apply to them.

When it comes to guidelines community associations should follow to minimize the spread of COVID-19, Rafel says to lean on the side of greater protection for residents and guests. “Masks should be worn in lobbies, hallways, gyms, clubhouses, and meeting spaces if required or recommended by federal, state, or local health officials,” he says.

McGuire also believes masks should be required in indoor common areas to mitigate the spread of the disease. “Another option is to require only those who are unvaccinated to mask indoors and allow them to self-attest to their vaccination status. Meaning that, if someone enters the indoor setting without a mask, the resident or guest is self-attesting that they are vaccinated,” he notes.

Find out more on our Industry Web Pages for Condo, HOA and Property Management.

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