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Articles Posted in Community Association Law

susanodess-srhl-224x300An article authored by shareholder Susan C. Odess was featured as the “Board of Contributors” guest commentary column in today’s edition of the Daily Business Review, South Florida’s exclusive business daily and official court newspaper.  The article, which is titled “Florida Legislature Passes Assignment of Benefits Insurance Claim Reform,” discusses the ramifications of the new state law to reform the insurance industry practice known as assignment of benefits, or AOB.  Her article reads:

. . . The AOB process, which has been in place for decades, has become controversial in recent years because of an increase in residential water-damage claims, primarily for broken water pipes and leaks. Property owners sign over their claim benefits to contractors, which are then able to pursue payments directly from the insurers.

The proponents of AOBs say they help to ensure claims are properly paid, but the legislators supporting the bill have said it is aimed at curbing abuses of the AOB process. Insurance carriers have contended for many years that AOB fraud and the excessive litigation it generates have led to higher property-insurance rates.

dbr-logo-300x57The new law limits attorney fees in AOB lawsuits filed by contractors against insurers. The legal fees will be calculated using a set formula, but the caps would not apply to lawsuits filed by policyholders.

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Jeffrey-Respler-high-res-200x300Shareholder Jeffrey S. Respler authored an article that is featured as the “Board of Contributors” guest commentary column in today’s edition of the Daily Business Review, South Florida’s exclusive business daily and official court newspaper.  The article, which is titled “Association Construction Contracts Require Deft Negotiation by Legal Counsel,” focuses on the nuances of construction contracts that community associations execute with general contractors for major renovation and remodeling projects.  It reads:

. . . Construction contracts often represent some of the costliest expenses that condominium associations will ever approve, yet many associations fail to utilize the necessary legal resources and expertise to craft and execute the most effective terms and agreements. Instead, they focus merely on obtaining competitive bids, as most associations are required to do for projects exceeding 5% of their total annual budget (10% for HOAs), and often neglect to consult with highly qualified and experienced legal counsel to negotiate and finalize every aspect of their agreement with a general contractor.

Without a lawyer involved, a poorly negotiated and written construction contract can have serious consequences. Having a qualified and experienced attorney draft or review an association’s contract can help avoid risks and expensive disputes. Dealing with the aftereffects of a poorly negotiated or poorly written contract can be far more expensive than paying a lawyer to do it correctly in the first place. An experienced attorney can draft and negotiate a contract that will protect an association’s interests and be legally sound.

dbr-logo-300x57Attorneys write contracts in ways that favor their clients. Attorneys with experience in the construction industry will know the customary contract terms, and they will draft a contract in their client’s favor. If the contractor is drafting the contract, its lawyer will be doing exactly that.

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Those who reside in communities with associations should view board membership in the same vein as a civic duty. An effective board is essential for the financial and administrative wellbeing of associations, so all eligible unit owners should consider running for the board of directors as their contribution back to their community.

In no way are the responsibilities of serving as a director too complex and demanding for the capabilities and skillsets of most association unit owners. What it requires is their time and dedication, but not to the point where it becomes too daunting for the average owner.

To be a successful board member, it is essential to make effective use of the professional and educational resources that are available. This begins with relying on highly qualified and experienced professionals such as attorneys, property managers, accountants, insurance brokers, etc.

RBlanch-seminar-1-17-11-photo-1-300x225At the start of one’s board service, Florida law requires that new board members become certified within 90 days of taking office. The best way to do so is by attending an educational course that has been certified by the Florida Department of Business & Professional Regulation, such as the board member certification seminars offered by our firm on a regular basis. These seminars enable board members to gain a keen understanding for everything that the position entails. They cover all the basics of community association governance and the laws which are involved, and they also touch on some of the most common problem areas that boards regularly encounter.

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“I’m putting my own life at risk!” That’s what an Ormond Beach, Fla. homeowners association director is reported to have said after he fired his gun into the ground in an effort to shoo away two teenagers from the community pool.

Thankfully, nobody was hurt in the incident, which resulted in the arrest of Richard S. Marcelle, 66 (pictured below), for three counts of aggravated assault with a deadly weapon without intent to kill and discharging a gun in public.

According to reports in the Daytona Beach News-Journal and local television stations, the encounter took place at approximately 9:15 on the evening of April 22 when Julian Johnson, an 18-year-old resident of The Village subdivision, and a younger friend visited the community pool. rmarcelle-280x300Marcelle, who is a member of the HOA’s board of directors, approached and informed them that the pool was closed.

When Johnson noticed a sign indicating the pool is open until 10 p.m. as he and his friend were exiting, they pointed it out to Marcelle. Apparently, residents had not yet been notified, and new signs had not been posted, announcing a recent change to the pool hours.

As they attempted to re-enter the pool area, the association director intercepted them and brandished a handgun, which he then fired into the ground. One of the teens then asked: “Did you really just shoot a gun?” Marcelle’s response: “Yes, I am putting my own life at risk!”

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Hurricane preparedness is a significant undertaking for every community association in Florida. Being well prepared — and well informed — can determine whether association boards and their managers will sink or swim in the aftermath of a storm. Here are some helpful tips to enable associations to stay ahead of the 2019 hurricane season, which officially began on June 1 and will end on November 30:

Maintain an up-to-date paper roster of the current residents, and store it at an accessible off-site location. Hurricane-2-300x169A separate list of residents who are remaining in the building should also be kept. Accounting for the whereabouts of all residents can be vital for emergency response teams who might have to provide medical assistance to any residents in need.

Keep important documents at a safe alternate location. This includes a copy of the association’s governing documents, a certified copy of the insurance policy, bank account information, service provider contracts, and contact information for all residents, staff and vendors of the association.

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The horrific murder of an 11-year-old Las Vegas girl stemming from a shooting into her home, which had been mistakenly targeted by local gang members, has led to a wrongful death lawsuit against the homeowners association and property management firm. The tragic case delivers a very clear and important message for community associations contending with problem residents who may pose a threat.

The shooting last November was caught on surveillance video, which shows multiple assailants firing indiscriminately into the home where Angelina Erives lived with her mother, step-father and two sisters. The shooters were confused as to the location of their intended target, which was a home two doors down the street, when they killed Angelina (pictured below in family photo provided to media).

ErivesAccording to statements of the attorney for Angelina’s mother and siblings in several news reports, the neighboring property had been occupied by as many as 20 different tenants and the police had been called to that property on numerous occasions. The homeowners association and property management company were aware of the problems and had been in communications with the owner of the home. However, the association’s apparent enforcement of the community’s covenants, conditions and restrictions fell short of evicting the problem residents.

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Home automation is a fast-growing segment of the tech industry, and the use of Internet-connected doorbell cameras has become particularly popular for those seeking an extra level of security at a reasonable price. These motion-activated cameras enable users to monitor everyone who passes by their front door, whether on a live or recorded video feed. While use of these devices may present less privacy issues for those residing in single-family homes, what about for those who reside within condominium buildings with shared hallways?

Proponents of doorbell cameras in condominium buildings may argue that the convenience and safety benefits they provide outweigh the privacy concerns and any issues of improper alterations to the common-element portions of the condominium building. dbelcam For example, a doorbell camera, which may also be capable of recording audio, may view and record within another dwelling that may be located across the hallway when its door is open.  The use of a doorbell camera in such a scenario may be considered an invasion of privacy.

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HB 153 – Landlords and Tenants – § 83.51, Fla. Stat.:

  • Requiring landlords to provide their tenants with a physical copy of any restrictive covenants governing the premises and occupancy of the premises at the time the landlord and tenants execute a rental agreement.
  • Requiring landlords to provide their tenants with written notice by certified mail of any changes to the covenants or the enforcement of the covenants within 10 business days.
  • If passed, this law would become effective July 1, 2019.

HB 155 – Homeowners’ Association Recalls – § 720.303, Fla. Stat.:

  • Adding a qualification for recalls, whereby directors may be recalled and removed from office by a majority of the total voting interests who physically reside in the community. Previously, the requirement to physically reside in the community was not in place.
  • If an association’s declaration, articles of incorporation or bylaws specifically provide that members may also recall and remove directors by a vote taken at a meeting, such special meeting of the members may be called by 10 percent (10%) of the voting interests who physically reside in the community. Previously, the requirement to physically reside in the community was not in place.
  • If passed, this law would become effective July 1, 2019.

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A recent report by Channel 7 News (WSVN-Fox) in South Florida shined a spotlight on a new trend that is beginning to cause noise disruptions at some of the area’s condominium communities. It is called pickleball, and the sport is becoming especially popular for 55-and-older retirement communities. While the decision of the association’s board to accommodate the sport seems innocent, it appears to have triggered some unintended consequences that other community associations should bear in mind.

First created in 1965, pickleball is a paddle sport for all ages and skill levels that combines many elements of tennis, badminton and ping-pong. It is played both as singles and doubles on a badminton-size court using a slightly modified tennis net, paddles and a plastic ball with holes.

pballThe station’s report, which states that the sport is becoming very popular, chronicles the issues that are arising from the noise that pickleball is creating at the Wynmoor in Coconut Creek retirement community in Broward County. Two of the community’s tennis courts were converted into eight pickleball courts, which allow for up to 32 people to play at the same time.

Linda Waldman, the owner of a unit near the courts, states: “It’s a very noisy game, unfortunately . . . there is a ‘pong’ not also from the racket, but also when it hits the ground. Ponging and screaming. It’s a very enthusiastic game. The people love it.”

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A couple of years ago we saw the Florida state legislature add teeth to Florida’s condo and HOA laws governing theft, fraud, abuse and conflicts of interest. Recently, the Department of Business and Professional Regulation, the state agency that governs community associations, followed suit by implementing harsher civil disciplinary guidelines for condominium association infractions.

The new guidelines detail the civil penalties and disciplinary procedures for violations of the Condominium Act and the Florida Rules of Administrative Procedure involving accounting records, assessments, boards, budgets, common expenses, conflicts of interest, debit cards, elections, estoppel certificates, final orders, fiduciary duty, investigations, records requests, financial reporting, reserves, special assessments and websites.

dbprlogo-300x170For minor violations, the disciplinary guidelines call for the agency’s Division of Condominiums, Timeshares and Mobile Homes to issue the association with a written Notice of Noncompliance “due to the violation’s lower potential for public harm.” If the association fails to comply with the stipulations called for in the Notice, it could result in sanctions and enforcement with monetary penalties being imposed in amounts between $5 and $10 per unit for each violation. The maximum penalty for minor violations is $2,500, for a single minor violation.
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