Florida HOA Lawyer Blog

May 21, 2023

Miami Herald Column: “Real Estate Counselor: Unpaid Dues at HOAs Call for Uniform Collections Policies”

by Siegfried Rivera

Siegfried Rivera

The latest edition of the firm’s Miami Herald real estate column appears in today’s newspaper and was authored by Maryvel De Castro Valdes. The article, which is titled “Real Estate Counselor: Unpaid Dues at HOAs Call for Uniform Collections Policies,” focuses on the increased arrears that some South Florida communities are now starting to see as a result of rising insurance costs and inflationary economic pressures. Maryvel notes that boards of directors and property managers would be well advised to review and examine their collections policies to ensure that owners are properly reminded of their maintenance payment obligations. Her article reads:

. . . Boards of directors should look to Florida law and their community’s governing documents to determine if certain actions must be taken before a lien is recorded or a foreclosure action is initiated. Based on these reviews, a standardized written collections policy should be created to outline the steps and timing of notices to delinquent owners. The policy is also helpful to avoid the potential for claims of favoritism or selective enforcement.

When creating a collections policy, there is certain information that should be included. For example, owners should know the due date and to whom the payment must be delivered, the date that late charges will be imposed, the delinquent interest rate, and when a delinquent account will be turned over to a collection agency or attorney for handling. Associations should look to their declaration of covenants or bylaws to confirm if a late charge may be imposed, as Florida law only allows late charges if they are provided for in the governing documents.

The collection of a past-due account most often begins with an official written notice mailed to the delinquent owner. Both the Condominium Act and the Homeowners’ Association Act provide a mechanism for notifying owners of delinquencies known as the “Notice of Late Assessment,” which gives owners 30 days to make payment.

May 15, 2023

Reports of Crocodiles at Miami Condo Enclave Spotlight Association Response

by Roberto C. Blanch

Roberto C. Blanch

A recent report by 7News (WSVN-FOX) about crocodiles near the bayfront Nirvana Condominium in Miami’s Upper East Side neighborhood spotlighted residents’ concerns and the association’s response. It illustrates how it is essential for associations to take appropriate actions whenever they are made aware of potentially dangerous wildlife incursions in their community.

“It’s scary . . . There’s a big croc here, and its potentially dangerous for dogs and the kids . . . We’re just worried about the dogs and especially the safety of the little children,” said residents who spoke with the station’s reporter.

The residents tell the station they have spotted the crocodile for months, and building management and the Florida Fish and Wildlife Conservation Commission have been made aware of the situation.

In response, members of the FWC have visited and investigated, and Nirvana’s property management sent an email alerting residents and instructing them to stay away from the water after dark. It also warned that they should be especially cautious when kayaking, paddle boarding and swimming in the bay.

This email and the outreach to the FWC are great first steps. Property management or other association representatives should also obtain and consider the recommendations from the agency’s wildlife officers, and they should contact professional trappers for their expert advice and input. The installation of permanent warning signs, physical barriers and other measures may also be in order.

May 7, 2023

Miami Herald Column: “Real Estate Counselor: Owners’ Gripes Over Legit HOA Budget Increases Prove Detrimental”

by Siegfried Rivera

Siegfried Rivera

The firm’s latest Miami Herald column was authored by shareholder Gary M. Mars and appears in today’s edition of the newspaper. The article, which is titled “Real Estate Counselor: Owners’ Gripes Over Legit HOA Budget Increases Prove Detrimental,” focuses on a scenario that is becoming increasingly common at South Florida condominium associations and HOAs. Gary writes that highly effective and scrupulous directors are being subjected to unwarranted accusations and mistrust by unit owners who become frustrated over necessary budget increases and special assessments, causing a great deal of discord and disharmony that often exacerbate associations’ financial strains while also diminishing community appeal and property values. His article reads:

. . . Many South Florida community associations have been forced to increase their annual budgets and dues to account for today’s economic conditions, including rises in insurance and staffing costs. Some have also had to enact special assessments to raise funds for specific immediate needs, such as new roofs, elevators, HVAC systems, etc.

Associations are bound by Florida law and their own governing documents to maintain such common elements.

If they have waived the funding of reserves in the past and are unable to pay for such repairs/replacements when they inevitably arise, special assessments possibly combined with lender financing represent their only options for securing the necessary funds and beginning the work as expeditiously as possible. Boards of directors are simply left with no other recourse and must implement such assessments to meet their duties to the communities they serve.

May 1, 2023

Florida Senate Passes Bill Addressing Concerns Over Last Year’s Condo-Safety Reforms

by Laura Manning-Hudson

Laura Manning-Hudson

Florida condominium associations and those who provide them with expert guidance have experienced some confusion and questions over aspects of last year’s condo-safety reforms, and the state Senate has responded with the passage of key amendments to address some of these concerns. While a companion bill remains before the House, Senate Bill 154, which was passed unanimously, deals with the new requirements for inspections and financial reserves.

Under last year’s reforms, milestone inspections are required for buildings that have been occupied for 30 years (25 years if within three miles of a coastline), and additional inspections are required every 10 years thereafter. The new bill allows buildings within three miles of the coastline to be inspected after they have been occupied for 30 years, but it enables local officials to require inspections after 25 years of occupancy depending on “local circumstances, including environmental conditions such as proximity to salt water.” It also clarifies that the required milestone inspections apply only to residential condominiums and mixed-use buildings.

Florida-legislature2-300x169 If enacted, the bill would also allow local officials to extend inspection deadlines if building owners have entered into contracts with architects or engineers but have been unable to complete inspections in time. In response to complaints from associations over the lack of available qualified inspectors, it also permits for inspections conducted by design professionals working under engineers or architects as the registered professionals in charge.

April 23, 2023

Firm’s Miami Herald Column: “Real Estate Counselor: CAI Conducting Advocacy Efforts on Capitol Hill”

by Siegfried Rivera

Siegfried Rivera

The firm’s latest Miami Herald column was authored by shareholder Nicole R. Kurtz and appears in today’s edition of the newspaper. The article, which is titled “Real Estate Counselor: CAI Conducting Advocacy Efforts on Capitol Hill,” focuses on the recent outreach and meetings by the Community Associations Institute’s public affairs and advocacy team with members of the U.S. Congress and their staffs in Washington D.C. It reads:

. . . As my colleagues have written in this column, CAI is backing a bill pending before the House of Representatives that would provide access to government-backed, low-interest loans for condominium building safety and critical repair/reinforcement projects. CAI’s advocacy efforts on condo-safety reforms have been recognized with the 2022 Lobbying Strategy Innovation Award by the Public Affairs Council, which is the leading nonpartisan association for public affairs professionals worldwide.

In response to the increasing costs of property insurance, mortgage underwriting rules, and new ordinances/laws that will result in more condominium building inspections and critical repairs, some South Florida communities have already begun adjusting their budgets and raising their monthly dues. The proposed bills backed by CAI would offer relief for these increasing costs by providing condominium associations, as well as their unit owners, with access to FHA-insured low-interest loans.

CAI has also been lobbying for reforms to Fannie Mae’s and Freddie Mac’s condominium and housing cooperative lending guidelines. These government-backed home mortgage institutions adopted emergency underwriting guidelines for mortgages for condominiums and residences in housing cooperatives after the horrific Champlain Towers South tragedy. Their temporary condominium and housing cooperative guidelines have caused significant delays, and some outright lender denials, for prospective buyers nationwide.

April 17, 2023

Maintaining Orderly Board Meetings Essential to Effective Community Association Governance

by Roberto C. Blanch

Roberto C. Blanch

The community association board meeting is where the rubber meets the road for practically all matters that come before an association and the community it serves. Order and civility are essential for effective meetings, and their erosion will only snowball into growing disfunction and disharmony.

The effective use of Robert’s Rules of Order as the general format for association board meetings serves a solid platform on which to build upon for successful and orderly meetings. Board meetings adhering to Robert’s Rules generally include a call to order, the establishment of a quorum, a review and approval of the previous meeting’s minutes, new business, old business, and adjournment.

Some associations also add an open forum for input and discussion from owners in attendance at the meeting, but as further addressed below, efforts to streamline agendas and make meetings more efficient may result in the removal of such an item to the extent it is not required in accordance with the association’s governing documents.

However, following this meeting format is just a starting point. Many factors may contribute to effective and efficient meetings. For example, it has been suggested that the manner by which the directors themselves are seated at meetings may contribute to effective meetings. Some have found it helpful to arrange the board members so they are seated in a “C” formation — with the open end facing the attendees — citing that this seating arrangement helps to avoid the misperception that the board members are only speaking to the unit owners in attendance but not to each other.

Maintaining civility during interaction with attendees is also a factor to be considered. Directors should avoid speaking and interrupting individuals’ remarks during discussions. Directors and all others in attendance should be mindful of the need to listen attentively to all the remarks, take notes if necessary, and hold their own questions or comments until after the remarks are concluded.

April 9, 2023

Miami Herald Real Estate Column by Eduardo Valdes: “Takeaways From Ruling Over Dispute at Hollywood Condo”

by Siegfried Rivera

Siegfried Rivera

The firm’s latest Miami Herald “Real Estate Counselor” column was authored by Eduardo J. Valdes and appears in today’s edition of the newspaper. The article, which is titled “Takeaways From Ruling Over Dispute at Hollywood Condo,” focuses on a recent decision over a dispute at the Hollywood Station Condominium by Florida’s Fourth District Court of Appeal that illustrates one potential outcome for community association lawsuits brought by concerned unit owners. His article reads:

. . . The case pitted Tara Ezer, a unit owner at the condominium and member of its association, against the association and six members of its board of directors. Her suit alleged that the directors violated the community’s bylaws by obtaining a loan without unit owner approval to fund material alterations to the common elements, and they misrepresented how the association would pay for the project.

Ezer’s lawsuit was a derivative action where one or more shareholders file suit in the name of a corporation against its officers and/or directors over its management/finances. The lawsuit sought an injunction to stop the alterations and requested the appointment of a receiver to manage the affairs of the condominium. It also sought damages from the defendant directors for breaches of fiduciary duties, civil conspiracy, and aiding and abetting fraud.

The case first arose in September 2020 when Ezer provided the board of directors with a letter summarizing her claims, which was followed by the filing of the lawsuit the very next month. In accordance with Florida law, the association responded to Ezer’s letter by commencing an investigation on the allegations to be led by an independent committee.

March 29, 2023

Community Associations Should Take Proactive Approach to Maintaining Communications Channels with Non-Resident Owners

by Awilda Esteras

Awilda Esteras

South Florida’s robust housing market attracts buyers from across the globe. Many of the area’s priciest and most luxurious enclaves are filled with part-time residents who use their properties as investments and vacation homes. Involvement with association matters and communications with personnel for some of these well-heeled owners can sometimes be minimal, so it is up to the associations and their property management to go above and beyond the normal call of duty to ensure they are always connecting with these owners through all the proper channels.

For communities with a disproportionately high level of part-time residents who primarily live elsewhere, the best approach is a proactive one. Association personnel should make contact and confirm they are connecting with such owners through exchanges of emails or calls as necessary, but at the very least on an annual basis. They should use these communications simply to ensure the owners are receiving all of the community’s correspondence, and to ask if there are any updates to the contact information.

Associations should be sure to always maintain and use, in addition to the property address, owners’ actual address for their primary residences as well as their email address and mobile phone number. How and when to use each of these for every piece of association correspondence should be set as a matter of policy by association directors with the help and guidance of qualified property management and legal professionals.

March 26, 2023

Miami Herald Real Estate Column by Michael Hyman: “Boca Condo Offers Case Study in Pitfalls of Prolonged Litigation for Associations, Owners”

by Siegfried Rivera

Siegfried Rivera

The firm’s latest Miami Herald “Real Estate Counselor” column was authored by Michael L. Hyman and appears in today’s edition of the newspaper. The article, which is titled “Boca Condo Offers Case Study in Pitfalls of Prolonged Litigation for Associations, Owners,” focuses on the takeaways from the ongoing epic litigation involving the Boca View Condominium that has been covered by the Sun Sentinel. His article reads:

. . . This latest of several articles by the newspaper on Boca View’s litigation chronicles how unit owner Eleanor Lepselter is now asking the court to find the association in contempt and impose fines of $500 a day until it complies. It states that deadlines set by two court rulings for the association to produce the records have already passed, and the motion for contempt that was filed on Feb. 21 accuses the association of having no plan to release the records.

The case dates back to February 2019 when Lepselter submitted written requests to the association’s property manager seeking to inspect financial records for the four-story, 72-unit property that lies between the Intracoastal Waterway and Atlantic Ocean in Boca Raton. Her request stated she had appointed her attorney to conduct the inspection, and the attorney’s request cited a provision of Florida’s condominium laws requiring associations to make such records available to unit owners or their personal representatives.

The association responded by designating a time for Lepselter to inspect its financial records, but it refused to allow her attorney to accompany her. She challenged that decision by filing for arbitration with the state’s Department of Business and Professional Regulation, and the agency’s arbitrator found in her favor.

March 20, 2023

Florida Legislature Considering Bills Proposing Changes to Condo Safety Reforms, Construction Defect Lawsuits

by Roberto C. Blanch

Roberto C. Blanch

As the 2023 Florida legislative session gets underway, there are several bills impacting associations and real estate that our firm’s South Florida community association attorneys will be keeping a close eye on and discussing in our blog.

Senate Bill 154 and House Bill 1395

Perhaps the most important of these are Senate Bill 154 and House Bill 1395, which deal with issues such as inspections and condominium association financial reserves that were addressed in the condo safety reform law that was passed last May with the adoption of Senate Bill 4D during a special legislative session. Under the new law, inspections are required for buildings that have been occupied for 30 years — or 25 years if they are within three miles of a coastline. After these initial inspections, the buildings will have to go through the process again every 10 years.

If adopted, the new bills could result in changes to the time by which buildings, including those within three miles of a coastline, will have to be inspected. The two bills include different timeframes by which the initial milestone inspection may have to be performed (e.g., SB 154 triggering all such inspections at 30 years with discretion for local officials and authorities having jurisdiction to compel some at 25 years depending on “local circumstances, including environmental conditions such proximity to salt water”; or HB 1395 requiring the initial inspections at 25 years for all buildings regardless of proximity to salt water).