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Articles Posted in Community Association Law

berenice-m-mottin-berger-2021-300x300LTLehr-2018-Siegfried-Rivera-200x300An article authored by the firm’s Lindsey Thurswell Lehr and Berenice Mottin-Berger was featured as the guest commentary column in the online edition of today’s Daily Business Review, South Florida’s exclusive business daily and official court newspaper, and will soon appear in the print edition.  The article, which is titled “Funding Community Association Repairs and Renovations,” concentrates on how the funding of long-term condominium maintenance, repair and replacement projects has become a major focus at many communities across the country after the horrific tragedy of the collapse in Surfside, Fla.  It notes that many association board members who previously might have avoided increasing monthly assessments and implementing large special assessments are now looking to evaluate and address the inevitable deterioration of their buildings.  Lindsey and Berenice’s article reads:

. . . Rather than kicking the can down the road in hopes that future boards will address worsening maintenance concerns, association directors are coming to terms with the fact that delayed repairs and maintenance are likely to exacerbate structural problems and increase the eventual costs, in addition obviously to the potential life-safety risks, to be borne by the owners. dbr-logo-300x57As never before, association boards and unit owners have become keenly aware of the importance of maintaining adequate financial reserves to fund future construction projects.

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Eduardo-Valdes-srhl-lawAn article authored by firm partner Eduardo J. Valdes is featured in the op-ed “Opinions” page of today’s South Florida Sun Sentinel.  The article, which is titled “Post-Surfside, condo associations must be proactive with change | Opinion,” focuses on the impact that the horrific tragedy of the Champlain Towers South collapse has had on the condominium associations for similar towers nationwide and their boards of directors.  Eduardo notes that in addition to the shared grief and remorse with the families and friends of all the victims, many condo owners across the country are now raising questions about their own buildings’ structural safety and financial health, and some have also begun to feel more concerned about the funding of reserve accounts for major repairs and replacement projects.  His article reads:

 . . . All buildings deteriorate over time, so associations should always set aside funding on an ongoing basis to mitigate and remediate any structural elements that require attention.

As they begin reassessing their associations’ commitments, condominium boards of directors will generally try to avoid special assessments demanding additional funds from all the unit owners. They will need to consult with legal, financial, engineering and insurance professionals to strike a balance between the funding of reserves and the use of special assessments when they become necessary from a life-safety standpoint.

Sun_Sentinel_Logo-300x97Condominium association directors and unit-owner members would also be well advised to come to terms with the new reality that future buyers will now have many more questions and concerns than in the past about the financial health of the association and current state of the actual property from the ground up. Some will surely request that sellers provide them with the minutes from prior board meetings, information on any past or planned special assessments, the status of renovation and remediation projects, past changes to the monthly assessments over the years, the findings of past reserve studies, and the status of current reserve funding. They are also now more likely to conduct a thorough visual inspection of the entire property prior to making a written offer.

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Florida community associations typically have the right under their governing documents to regulate and approve leases and tenants. However, some association boards of directors are under the misconception that they can easily develop and implement new leasing restrictions via a board vote, and that they have the authority to approve or reject prospective tenants as they please without facing any scrutiny of their decisions.

As my colleague Laura Manning-Hudson wrote in this blog in her June 9 post titled “Suit Against Boca Condo Association Spotlights Importance of Governing Document Amendments, Filings,” a lawsuit filed earlier this year against Boca Pointe Condominium Association highlights the importance of properly adopting leasing restrictions to an association’s governing documents and recording them in the local court registry where the association is located.

Residential-lease-agreement-300x199According to the suit, the association’s new leasing restriction, which it apparently adopted via a simple vote of the board the directors, was never approved by all the unit-owner association members via a formal vote. The only leasing restriction in the association’s recorded declaration states that owners are only restricted from renting units for terms of less than thirty days, contradicting the new restriction that the board tried to implement. If the allegations in the lawsuit hold up in court, the association could be forced to pay the plaintiff unit-owners’ lost rental income and legal bills.

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The news of the spike in Covid cases in Florida and elsewhere fueled by the highly contagious Delta variant is causing many employers and organizations to revisit the restrictions and precautions put in place at the height of the pandemic. Community associations in Florida have been no different, as many are now returning to mask mandates and social distancing even for vaccinated individuals in accordance with the latest guidance from the Centers for Disease Control.

After the CDC first announced several weeks ago that vaccinated individuals could safely stop wearing masks, community associations in Florida and across the country began to ease mask mandates and re-open their amenities with little or no capacity restrictions. While life appeared to be returning to normal, especially for those who received the vaccines, the latest spike in Covid cases caused by the highly transmissible Delta strain illustrates that we are not completely out of the woods yet.

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Community associations, just as all other private and public sector organizations in which people congregate, are taking notice of the renewed calls by the CDC and other sources to return to masking and social distancing. This is especially true for areas with high transmission rates such as Florida, which has lead the country in new Covid cases.

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Without a doubt, the tragic disaster of the collapse in Surfside, Fla., has impacted condominium association boards of directors across the country. In addition to board members’ grief for the 98 victims who lost their lives and their loved ones, many condominium directors have also grown concerned over the news of numerous lawsuits against the association for the Champlain Towers South. They are wondering whether the association’s directors or their estates may now face legal consequences and liabilities, and if perhaps the lawsuits are an indicator that they themselves are potentially taking on serious liabilities with their voluntary board service.

In response to the misconceptions that are now circulating amongst board members and those who may be considering serving on associations’ boards, they should be aware that there are several reasons why they should not be so concerned about potential legal liabilities. On the contrary, the collapse of the tower should serve as a call to action for unit owners to become more involved and take on the responsibilities of becoming a director.

meet-300x166Board members are shielded from liability under a community’s Directors and Officers insurance, which defends and protects them from lawsuits, in addition to the indemnification provisions of the articles of incorporation of their association and the Florida laws governing not-for-profit corporations.

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The recent tragedy in Surfside, Fla., has significantly impacted our firm and the communities we serve. Our heartfelt thoughts and prayers remain with the victims and families affected by the Champlain Towers South collapse.

In the aftermath of this horrific catastrophe, many condominium association directors, members and managers have raised various questions concerning the safety and stability of their own buildings. Our firm’s other South Florida community association attorneys and I have been responding to many of these inquiries regarding the process of assessing building structural and mechanical elements, and undergoing any repairs and restorations as needed.

constdefect1Because buildings age and mature differently, with possible conditions developing at different points of a building’s lifespan, associations must assess the structural integrity of their buildings and keep up with proper maintenance protocols, even in advance of the triggering of the 40/50-year recertification process. By doing so, associations can gather accurate snapshots of their buildings’ structural health, perform proactive repairs, and organize the funding necessary to move forward with large projects.

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Several bills that will impact community associations throughout the state were enacted into law this year. The following are summaries of community association-related bills that the Governor approved:

Senate Bill 72: Civil Liability for Damages Relating to COVID-19

Florida-legislature2-300x169The Florida Legislature made Covid-19 civil liability protections for businesses, healthcare providers, non-profits, and other organizations a major priority for the 2021 session, and on March 29th it became the year’s first bill signed into law by Gov. Ron DeSantis. With the enactment of Senate Bill 72, creating Section 768.38, Florida Statutes, businesses are now afforded protection from civil liability claims stemming from the Covid-19 virus as long as the business made a good faith effort to substantially comply with government-issued health standards or guidance at the time the cause of action would have accrued.

Individuals seeking to file claims for coronavirus-related injuries or death against covered entities will need to provide an affidavit from a medical professional asserting that they contracted the virus at the corresponding property. The claims must also demonstrate “clear and convincing evidence” of “gross negligence” in order to establish its validity. In order to prevail, plaintiffs will also be required to demonstrate in court that a defendant did not make a good faith effort to comply with public health guidelines.

The law also sets a one-year statute of limitations for the filing of lawsuits from either the date of death, hospitalization or the Covid-19 diagnosis involved in the claim, whichever is latest. The new law applies to claims that accrued before the enactment of the law and within one year following the Governor’s March 29 signing, but it does not apply to lawsuits that have already been filed.

Senate Bill 630: Community Associations

Section 627.714, Fla. Stat., has been revised to provide that if a condominium association’s insurance policy does not provide rights for subrogation against the unit owners in the association, an insurance policy issued to an individual unit owner in the association may not provide rights of subrogation against the condominium association.

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In the hours, days and now weeks since the horrific tragedy of the Surfside condo collapse, the firm’s Gary Mars and Stuart Sobel have been among the most sought-after expert sources by local and national media.  They have conducted extensive interviews with NBC News, the Miami Herald, South Florida Sun Sentinel, Daily Business Review, Law 360 and The Real Deal.  In addition, Gary and Stuart appeared live in wide-ranging interviews on The Florida Roundup and Sundial, the news and public affairs shows produced and aired by WLRN FM-91.3, the South Florida National Public Radio affiliate.

wlrn-300x113Both of these interviews covered a great deal of ground, and we encourage all those interested in learning more about the questions involving the legal ramifications of this tragedy and the liabilities of the insurer, builders, engineers and architects to listen to both.  Gary’s interview on The Florida Roundup aired on Friday, July 2, at 1 p.m., and it’s available to be heard in full by clicking hereGaryMars-200x300He discusses the implications for condominium association boards from the collapse as well as the reforms that may be in store.  He believes these should include federal relief, perhaps in the form of federally backed low interest loans for condominium associations in need of undergoing extensive repairs.

Stuart’s interview aired during the Sundial show at 1 p.m. on Tuesday, July 6.  He discusses the extremely high qualifications of the judge and engineer assigned to the case, and he also shares his insights into the projections for the investigation and the ultimate compensation for the victims and their families.  Stuart-Sobel-2013-200x300It is a wide-ranging discussion that also delves into the projected reforms that he foresees are likely to follow.  Stuart’s interview is available by clicking here.

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The collapse of the Champlain Towers South condominium has been a human tragedy of unimaginable proportions, and the unspeakable grief and horror of its aftermath have been shared deeply by our law firm.

Our firm’s community association law attorneys have made helping condominium communities to contend with construction defects a particular focus of our work.  We believe reforms should be considered to require engineers to report certain serious conditions to local building departments wherever they find them.  This would take discretion out of equation and immediately involve building inspections, permits being issued and repairs being completed.  We also suggest there should be new federal/state government aid and/or low-interest federally backed loans for condominium associations that now engage in major structural repairs.

Our attorneys are also concerned by the great deal of misinformation that is currently circulating over the legal liabilities of association board members.  We note that lawsuits against a condo association are ultimately against the building’s insurer and possibly all the unit owners, as the owners can be held responsible for their association’s liabilities.  The firm’s attorneys have been reaching out to our clients to remind them of importance of prioritizing engineering findings in their turnovers to new board members and property managers, and to focus on structural issues over aesthetics and fund reserve accounts for any necessary repairs.

Stuart-Sobel-2013-200x300Our firm’s attorneys have also been sharing their insights on these and other issues with major media outlets as well as some of Florida’s lawmakers and policymakers, and we have scheduled a free live webinar on 40-year recertifications and structural maintenance for today at 1 p.m. (click here for information and online registrations).  The Sun Sentinel and Daily Business Review immediately turned to our board certified construction and condominium law experts for their input in the aftermath of the collapse.  A front-page article in the Sun Sentinel that appeared in the Friday, June 25, edition titled “How to Know if Your Condo Tower is Safe” includes insights from firm partners Stuart Sobel (pictured here) and Roberto C. Blanch.  The article reads:

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The Community Associations Institute, the largest organization representing the interests of condominium and homeowners associations in the world, provides many excellent resources for association directors, members and property managers. One of the organization’s best online resources is its “Ungated” blog at www.blog.caionline.org, and two of its recent entries focused on some of the most important and ubiquitous Covid-related issues that are currently weighing on associations.

In the June 3 post, which is titled “Diving in: More community pools are open for the summer,” pandemic-related pool rules and operations are discussed. The post is based upon a survey of roughly 1,000 members of the Community Associations Institute regarding their pool plans for 2021, and it revealed that only two percent of survey respondents plan to close their pools this summer season. This survey result is in stark contrast to the nearly 44 percent of CAI members who planned to close their pools during the summer season last year.

CAI-logoIt is worth noting, however, that more than a quarter of respondents in the CAI survey were still undecided about their pool rules and policies for the remainder of the year due to ongoing coronavirus concerns. Additionally, forty percent of survey respondents confirmed they were planning to require residents to sign a liability waiver when pools reopen.

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