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Articles Posted in Community Association Law

The Florida Legislative Session began on January 11th and is expected to wrap up by the end of this week. We’ve been tracking the 21 bills filed throughout the session that would directly impact community associations throughout Florida.  Below is a summary of the proposed bills that are still making their way through the final leg of this year’s session.

As always, we will inform our readers as to which of the proposed bills become new law, and we will also provide a comprehensive summary of those bills and their impact on community associations. In addition, given the anticipated changes that might come into effect for the state regarding the funding of reserves and new inspection requirements for condominium buildings, we encourage readers to also stay on the lookout for possible changes at local levels.  For example, we recently covered a new Miami-Dade ordinance that requires community associations located in the county to upload certain documents and information to a new publicly accessible database (click here to learn more).

Residential Associations — SB 394 and related HB 547 revise the certification and educational requirements for boards of directors of residential community associations. Newly elected or appointed board members would be required to certify by affidavit that they have read their association’s declaration, articles of incorporation, bylaws and written policies AND will attend a division-approved board certification course. If passed, this law would be effective July 1, 2022.

Florida-legislature-photo-thumb-300x198-300x198Condominium & Homeowners Associations Flags — CS/SB 438 and related HB 465 permit owners in condominium associations and mandatory homeowners associations to display a flag representing the United States Space Force on designated holidays. If passed, this law would come into effect on July 1, 2022.

Display of Flags in Residential Associations — SB 1716 and related HB 1371 authorize owners of condominium associations to display The United States flag, the official flag of the State of Florida, a flag that represents specific special forces, a POW-MIA flag and certain first responder flags, even if the association’s covenants, restrictions, rules or requirements prohibit owners from displaying flags. This act will take effect July 1, 2022, if passed.

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The demands for increased access to condominium financial records and structural reports in Florida after the horrific Champlain Towers tragedy are leading to possible changes at the state and local levels, and they just led to a new local ordinance in Miami-Dade County.

On March 1st, the Miami-Dade Board of County Commissioners unanimously approved an ordinance establishing a searchable database for financial statements and structural reports, among other information and documentation, for residential community associations located in Miami-Dade County. The new ordinance requires community associations in Miami-Dade County, including all condominium, cooperative, and homeowners’ associations, to upload certain documents and information to the county’s database, along with a written registration with the Miami-Dade County Department of Regulatory and Economic Resources, by Feb. 1st of each year, beginning on February 1, 2023.

MCboard-300x169The ordinance provides that the documents uploaded to the database will be publicly accessible on the county’s website, and will also be searchable. Some of the documents to be attached to the annual registration submitted to the county include the following: the name of the community association; the name and contact information for the association’s property manager or other designated agent; a list of all officers and directors of the association, including their contact information; a link to the association’s website, if any; a legible copy of the association’s governing documents; a list containing the association’s planned capital projects from the date of registration through February 1st of the following year; a copy of the association’s current budget and financial statements, including any applicable current or approved special assessments; and all reports issued within the last 10 years on the structural status of the property governed by the association, including recertification reports, if applicable.

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The new condominium safety financing requirements from Fannie Mae and Freddie Mac have drawn a great deal of attention, but the Florida Legislature appears to be poised to go one step further in its response to the horrific Champlain Towers tragedy.

The Florida House and Senate are both moving forward with bills that would add new inspection requirements on condominium buildings. A bill that is now ready to go before the full Senate, SB 1702 would require condominiums that are three stories or taller and located within three miles of the coast to undergo initial inspections 20 years after completion and every seven years thereafter. Buildings in other areas would be required to be inspected after 30 years and every 10 years thereafter.

Flalegislature-300x169The Florida House has taken up its own version of the bill (HB 7069). Its proposal would require initial inspections to occur 25 years after completion, and buildings further inland would have their first inspection at 30 years. Additional inspections would be required every 10 years.

The House and Senate bills also include differences over reserve studies, which are used to determine the level of funds a condominium community needs to maintain in reserve for future renovations and repairs. The differences between the two bills are likely to soon be consolidated into a final bill for bicameral consideration.

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Gary-Mars-2021-2-200x300The firm’s latest “Real Estate Counselor” column in the Miami Herald authored by Gary M. Mars is featured in today’s Neighbors section and titled “Electric Vehicle Chargers At or Near Top of Many Condo Community Wish Lists.”  The article focuses on a state law that was ratified last year to facilitate the addition of shared electric vehicle charging stations as an amenity for the use of owners and guests in Florida condominium communities.  It reads:

. . . For condominium dwellers, the lack of access to electrical charging in congested parking garages with assigned spaces initially proved to be a significant challenge for those with EVs. Wisely, the Florida Legislature passed several new laws in recent years to address the installation of charging stations in condominiums, and the law that went into effect last July to facilitate the deployment of shared community EV charging stations may be the most important yet.

Herald-GMars-2-27-22-print-clip-for-blog-101x300The law clarified that the installation of shared EV charging stations for a community’s owners and guests can be ratified via a simple vote of a condominium association’s board of directors, and it would not require a vote and approval of all the unit owners as is needed for projects involving what are called “material alterations.” The prior new charging-station laws addressed installations to be paid for and used by individual unit owners at their assigned parking spaces.

The problem with that model is that very often there is inadequate electrical infrastructure to install such charging stations without it becoming exorbitantly expensive. EV charging requires heavy-duty electrical cables and equipment that are capable of handling the high-capacity loads necessary to fully charge vehicles in just a few hours, as opposed to 12 hours or more using standard 110-volt outlets. Plus, the electrical consumption needs to be metered and billed to the owner, also requiring additional equipment and expenses.

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When disagreements and disputes arise amongst those who serve on community association boards of directors, emotions can run high in light of the impactful nature of the decisions made by such directors.  However, as association directors are duty bound to act in the best interests of their community and its owners, they should seek to avoid engaging in personal spats and attacks with one another and the owners that could lead to potential legal liabilities for the association.

One of the best examples of the dangers of public rows between association directors and unit owners is now playing out at the Porta Bella Yacht and Tennis Club in Boca Raton (pictured below).  As chronicled in a recent report from www.BocaNewsNow.com, homeowner Samuel Loff filed a lawsuit against the association premised upon an allegation that its board members made inappropriate and inaccurate accusations against him as part of a retaliation campaign.

pbella-300x255The lawsuit alleges that the community’s board of directors retaliated against Loff for an email that he sent to them complaining about security shortfalls and announcing his candidacy for a board seat.  Shortly after his email, the suit alleges that the board began accusing him of making unwanted advances to a female security guard, and it later put those accusations in writing via an email distributed to all the unit owners.

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A report that aired in late November on 7News (WSVN-Fox) in South Florida focused on a local renter in a dispute with her condominium association over her motorcycle. While the property’s rules ban motorcycles, the tenant had apparently been explicitly told she would be allowed to keep and park her motorcycle at the property prior to signing her lease. Three years later after she’d been using and parking her motorcycle at the property without complaint, she received a notice from the association indicating that it had to go or it would be towed.

It appears that the tenant’s response was to call or email the TV station’s tip-line, and the end result was another thoroughly investigated and highly informative “Help Me Howard” segment by its senior reporter Patrick Fraser and long-time legal expert Howard Finkelstein.

The report chronicles how Alexa Polcyn had been allowed to use and keep her motorcycle at the property for over three years until the association suddenly began “hassling our landlord about it.” She tells Fraser that she had noticed the restriction on her lease but was expressly told by the association that her motorcycle was not going to be an issue.

wsvn-logoThe association was apparently true to its word until three years later in late 2021 when it decided it would begin enforcing its motorcycle ban. It issued her a written notice that the motorcycle had to go, so the question for the station’s legal expert was whether the association could now change its mind on an exception to its rule that it had previously granted?

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Oscar-Rivera-2015-hi-res-200x300Managing shareholder Oscar R. Rivera was proud to be selected by the editors of the Daily Business Review, South Florida’s exclusive business daily and official court newspaper, for the publication’s weekly “Leading the Way” column featuring extensive Q&A interviews with South Florida legal leaders.  Now closing in on his fourth decade with the firm, Oscar discusses in today’s article the changes that the firm and the entire legal profession have experienced during the pandemic, and how we have successfully contended with all of the challenges and continued growing.  The article reads:

. . . While Rivera has worked on some of Miami’s most visible developments since joining the firm in 1984 — including representing the developer of 200,000-square-foot Mary Brickell Village — he hasn’t encountered every legal issue his clients face.

Putting heads together to solve new problems was easier before COVID, Rivera said. So was getting to know law clerks’ personalities and training young lawyers. And even if the pandemic were eradicated tomorrow, Rivera knows that many lawyers and staff, including those at his own firm, don’t want to come back every day.

dbr-logo-300x57At the end of 2021, firm founder Steven Siegfried stepped down from his role as co-managing partner, leaving Rivera to lead the evolution of Siegfried Rivera in an eventual post-COVID world.

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Gary-Mars-2021-2-200x300When the editors of the Miami Herald decided they would like to feature a new column to provide timely legal knowledge on real estate topics for the readers of its Neighbors community news section that appears on Sundays, they turned to the attorneys of Siegfried Rivera as the exclusive contributors for the newspaper’s new Real Estate Counselor.  The inaugural edition of the new monthly column authored by the firm’s Gary M. Mars appears in today’s edition and as is titled “All Eyes on Florida Legislature for High-Rise Condo Safety Reforms.”  It focuses on the status of reforms after the horrific tragedy of the Champlain Towers South collapse.  Gary’s article reads:

. . . So far, the most significant changes have come at the federal level from Fannie Mae and Freddie Mac, two government-sponsored companies that acquire residential loans to offer mortgage-backed securities for investors in the secondary market. They both have a massive influence over the terms for mortgages offered by lenders, and they recently released new requirements for loans for residences in high-rise buildings with five or more attached units to meet their standards for acquisition. The changes, which are now being adopted and implemented by major residential lenders, place a heavy focus on structural and financial stability, and they reinforce the importance of meticulous documentation of all appraisals, meeting minutes, financial statements, engineering reports, inspection reports and reserve studies.

Miami-Herald-1-23-22-1006x1024Fannie’s new requirements are already in effect, while Freddie’s will take effect for all mortgages with settlement dates on or after Feb. 28. Its new standards will exclude from eligibility any condo loans for units in communities with what it considers to be critical repair needs, which are defined as those that significantly impact a community’s safety, soundness, structural integrity or habitability, and/or that impact unit values, financial viability or marketability. These include all life-safety hazards, violations of any laws or ordinances, building code violations, fire-safety deficiencies and others.

Subsequently, properties that have already identified elements requiring attention and begun their remediation efforts may become ineligible until such work is completed.

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RobertoBlanch_8016-200x300The lead article at the top of today’s front page of the Sun Sentinel titled “Collapse Drives Tougher Loan Standards” begins with quotes from firm shareholder Roberto C. Blanch and goes on to include quotes from his recent blog post on the topic.  The article, which also appears in the Miami Herald’s website, focuses on the new condominium loan requirements from Fannie Mae and Freddie Mac, the government-sponsored enterprises that make mortgages available to low- to moderate-income borrowers.  It reads:

. . . Reacting to last year’s tragic collapse of the Champlain Tower South in Surfside, Fannie Mae and Freddie Mac, the two companies that back a majority of residential mortgages in the U.S., are scrutinizing deferred condo maintenance issues before approving loans generated by banks and other lenders.

Generally, they will not back loans for condo and co-op units if their buildings have put off major repairs, industry experts say.

Both companies have issued temporary requirements for condo and co-op projects to ensure that buildings are structurally sound, and that associations that govern them have the money to pay for repairs.

Sun-Sentinel-RBlanch-1-21-22-print-clip-1-1024x519The upshot, legal and real estate analysts say, is that some condo buyers around the nation may need to find other sources if they want to finance their purchases. The rules could make it harder for some owners to sell, and place more pressure on condo inventories already tightened by heavy demand.

“It is without a doubt a more heightened scrutiny than what was previously being requested,” said attorney Roberto C. Blanch, who specializes in community association law at the Siegfried Rivera firm in Coral Gables. “The focus is on ensuring the safety and structural soundness and viability of buildings.”

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CSantisteban-200x300The firm’s Christyne D. Santisteban authored an article that 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 be appearing in the “Board of Contributors” page of its print edition.  The article, which is titled “Condo Garage Exit Alarm Creates Quite a Stir, But Only Requires Simple Solution,” focuses on an unusual condo dispute controversy that recently made local headlines in the Tampa Bay area.  It involved a parking garage exit pedestrian-warning alarm at a St. Petersburg, Florida, condominium tower that can be heard for several blocks and has drawn a nuisance lawsuit from a unit owner of a neighboring building.  Christyne’s article reads:

. . . The report in the Tampa Bay Times, which was followed by an editorial from the daily newspaper suggesting a simple solution, is sadly yet another example of an association ignoring an issue until it becomes a five-alarm fire, and then fanning the flames rather than easily and effectively putting them out.

dbr-logo-300x57The Times article focuses on Fred Sherman, who has apparently become extremely knowledgeable about the garage exit pedestrian-warning systems used by the buildings in his downtown St. Petersburg neighborhood. He demonstrates to the newspaper’s reporter that one has a voice that says “attention, vehicle exiting,” another has a light with a speaker that says “car coming,” and a third has a flashing device with some audio.

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