Articles Posted in Condominium Association Law

Michael-Clark-Gort-photo-thumb-120x180-45140Firm partner B. Michael Clark, Jr. authored a guest column that appeared as a “Board of Contributors” feature in today’s edition of the Daily Business Review, South Florida’s exclusive business daily and official court newspaper.  The article, which was titled “Court Upholds Concurrent Cause Doctrine in Win for Property Policyholders,” focused on the positive ramifications for Florida commercial and residential insurance policyholders of the state Supreme Court’s recent decision in the case of Sebo v. American Home Assurance.  Michael’s article reads:

The recent Supreme Court of Florida decision in Sebo v. American Home Assurance rejecting the “efficient proximate cause doctrine” in favor of the “concurrent cause doctrine” for property insurance claims represents a significant win for residential and commercial policyholders.

The state’s highest court has determined that the appropriate theory of recovery for claims in which two or more perils contribute to a loss but at least one of the perils is excluded from coverage is the concurrent cause doctrine. Under the rejected efficient proximate cause theory, when multiple perils cause a loss, it is the efficient cause — the one that sets the other in motion — to which the loss is attributed.

For the insurance industry, the efficient proximate cause doctrine has always been preferred. If the carriers are able to demonstrate that the efficient cause behind a loss is excluded from coverage under the policy, then the entire claim may be denied.

dbr-logo-thumb-400x76-51605-300x57Sebo makes the concurrent cause doctrine the legal standard to be applied for property insurance claims in Florida. Now insurers must cover a loss even if the covered peril is the secondary cause of the loss, which was concurrent with but not the primary or efficient cause.

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MichaelChapnicksrhl-law-200x300Firm partner Michael E. Chapnick has written extensively in this blog and several publications on the nuisance and security issues that have been caused by Pokemon Go, the augmented reality game in which players search the real world for characters that appear on their smartphones.  In the latest issue of the Community Associations Institute’s Common Ground magazine, he is quoted in an article on the topic titled “Pokemon Woe.”  The article reads:

If Pokémon Go players are being noisy or creating other disturbances, associations should check their nuisance provisions.

“If you don’t have good nuisance or antinuisance provisions, then those need to be beefed up,” says Michael E. Chapnick, a lawyer with Siegfried, Rivera, Hyman, Lerner, De La Torre, Mars & Sobel in West Palm Beach, Fla. “It’s a violation like any other violation. You have to enforce your documents and address any issues.”

Chapnick says associations should be applying their existing rules to a changing world.  “The rules are made to be fluid and made to be flexible,” he adds.

Our firm congratulates Michael for continuing to be one of the most outspoken community association attorneys on this topic.  Click here to read the complete article in the organization’s website (registration required).

 

While maintaining an adequate level of reserve funds for deferred maintenance, capital improvements and other major expenses is always recommended, community associations that find their reserves do not cover all of their needs have a worthwhile option other than special assessments that they should explore and consider.

Bank loans and lines of credit for associations were very difficult to obtain during the height of the foreclosure crisis, but happily for many Florida communities those days are long gone.  Now, there are a number of lenders that focus on loans for associations and offer highly competitive rates and terms.

Special assessments are typically the first option that associations consider to cover shortfalls in their reserves and take on important renovations or other unforeseen expenses.  However, it may not be the preferred choice for many communities.  Millions of U.S. homeowners are still recovering from the crash of the housing market and do not have the ability to secure a home equity line of credit in order to pay a special assessment.  In addition, the implementation of a special assessment is viewed as a sign of financial distress in an association by lenders considering FHA-backed home loans for buyers ipool-deck-renovation-300x224n a community, and this can ultimately take a significant toll on sales and property values.

Most associations will begin their research into their financing options by first turning to the bank that maintains their operating and/or reserve accounts.  While this is the obvious place to start, in the majority of cases they are also going to need to shop around.

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For those who live in community associations, board membership should be viewed in the same vein as a civic duty.  An effective board of directors is essential for the financial and administrative wherewithal and stability of every community association, so all unit owners who are able should volunteer to serve at least one term to contribute to their community’s overall success.

Some association members have the mistaken perception that the responsibilities of serving as a director are too complex and demanding for their capabilities and skill sets.  While it is a serious commitment in terms of time and attention, board membership should not be viewed as being too daunting of an undertaking for the average unit owner.

The key to success for practically every board member lies in their use of the most effective professional and educational resources that are available.  Of course, this should begin with relying on only the most experienced professionals such as attorneys, property managers, accountants, insurers, etc., but that is just the start.

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Community association living has many advantages and desirable qualities.  Residents share expenses in order to be able to enjoy relatively carefree maintenance of their property and the use of amenities such as pools, fitness centers, meeting rooms, and other appealing features.  However, in exchange for enjoying benefits derived from community association living, such as the pooling of the financial burdens of an association via the monthly maintenance payments, members should be mindful of a vital commitment which contributes to the wellbeing of their community:  serving on the association’s board of directors.

An effective board of directors is critical for the financial and administrative performance of a community and association.  Boards, which are in charge of making very important decisions affecting all unit owners and residents, are comprised of volunteer owners who rise to the call of serving their community in order to make it the best that it can be for all of an association’s members.

Unfortunately, in many cases, we often find that unit owners become complacent when a community’s board of directors is doing its job effectively.  Volunteering for board service is often perceived to be a daunting and thankless commitment by individuals who lead busy lives and do not wish to take on new responsibilities.

Effective remedies to tackle apathy towards board member service typically stem from implementing and maintaining long-term strategies to encourage serving.  It should begin by encouraging all members of the association to attend and participate in the association meetings, motivating eligible attendees to consider serving on the board of directors in the future.   Sharing informational resources on board service from industry groups, such as the Community Associations Institute (www.caionline.org) and other reputable sources, may also stimulate owners to aspire to serve on the board.

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In 2010, at the height of the recent foreclosure crisis, community associations in Florida gained an effective tool to aid them in their efforts to collect upon delinquent assessments.  It was at that time that the legislature amended Florida law to authorize community associations to suspend the rights of unit owners and their tenants to use portions of the community’s common elements and amenities if the owner became delinquent by more than 90 days in their obligation to pay association monetary obligations, including assessments.  Currently, the law also extends the association’s right to suspend such use rights in the event that the owner or their tenants should fail to comply with the association’s governing documents or rules.

Prior to then, associations had few practical remedies at their disposal to address violations of rules.  For instance, associations had the options of filing costly and lengthy lawsuits or arbitration actions, or imposing nominal fines.  As for collection of delinquent assessments, associations’ options were limited to placing liens on the homes or units owned by delinquent owners – a remedy with limited effectiveness during the foreclosure crisis due to the statutory safe harbor protections benefiting lenders in Florida.

tenrightHowever, since its implementation, some associations have found that suspending owner and tenants’ rights to use common elements or facilities may be an effective measure for contending with delinquencies as well as violations of rules and other restrictions.

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MTobacksrhl-law2-thumb-120x179-96777The firm’s Michael Toback authored an article that appeared as a “Board of Contributors” guest column in today’s edition of the Daily Business Review, South Florida’s exclusive business daily and official court newspaper.  The article, which was titled “Ruling Quashes Lingering Questions on Partial Payments to Condo Associations,” discusses the implications of a recent ruling that brings clarity for condominium associations in their handling of partial payments from delinquent unit owners.  His article reads:

Two years ago a ruling by the state’s Second District Court of Appeal created a major wrinkle in the acceptance of partial payments by condominium associations when the payments had been endorsed and presented as full and complete remittances of the total outstanding debt owed by unit owners.

The court’s ruling in the case of St. Croix Lane Trust v. St. Croix at Pelican Marsh Condominium Association essentially made it necessary for associations to consult with legal counsel when they received checks for partial payments that were in any way endorsed as representing the full and final payment of assessments owed by an owner. Prior to this ruling, associations were guided by a 2008 ruling by the Third District Court of Appeal which held that associations cannot refuse partial payments of assessments made by or on behalf of owners.

In St. Croix, the unit owner’s attorney specifically wrote to the association attorney stating that the payment made by the owner in the amount of $840 was to be considered as the full and complete payment for the settlement of the account, which the association claimed was delinquent in excess of $38,000. dbr logo-thumb-400x76-51605 While the Naples association responded to the owner’s attorney by denying that the partial payment was the full and final payment of the amount owed, it accepted and deposited the check, applying the funds as a partial payment in accordance with Florida law.

The appellate court found that the association’s depositing of the check containing the restrictive endorsement operated as an “accord and satisfaction,” resulting in a waiver of the association’s right to collect the remaining debt owed by the unit owner.

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With the holiday season approaching, now is the time that many condominium associations in Florida are gearing up for their annual meetings and board member elections.  It is essential for the current board and property management to have a complete understanding of the condominium election process.

At least 60 days prior to date of the meeting and election, the association must mail, deliver or electronically transmit a first notice of the election to each unit owner.  This first notice sets forth the date, time and location of the meeting.  Those members who wish to be considered for board membership must then give written notice of their intent to run for the board to the association at least 40 days prior to the scheduled date of the election.  Although not required, candidates have an additional five days to submit information sheets about themselves.

A second notice of the annual meeting and election together with an agenda for the meeting must then be mailed, delivered or electronically transmitted to all of the members together with a ballot that lists every candidate who submitted their names to run for board membership. meetingvote Any information sheets submitted by the candidates must also be included with the distribution of the ballot – regardless of their content.  Return envelopes that allow for owners to print and sign their names and include their unit numbers should also be included with this mail out.

In order to have a valid election, and be able to open envelopes and count votes, at least 20 percent of the eligible voters must cast a ballot.  Unit owners are not permitted to allow any other person to vote using their ballot, and all of the ballot envelopes must be retained by the association for at least one year.

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Jonathan Mofsky Gort photoThe firm’s Jonathan M. Mofsky authored an article that appeared as a guest column in today’s edition of the Daily Business Review, South Florida’s exclusive business daily and official court newspaper.  The article, which was titled “Important Ruling for Associations Seeking to Foreclose in Advance of Lenders,” focused on the clarity that was created by a recent appellate ruling over some lingering questions involving community association foreclosures.

Jonathan’s article reads:

The decision by the Fourth District Court of Appeal in Jallali v. Knightsbridge Village Homeowners Association clarifies the applicability of a 2012 ruling on association foreclosures by the same appellate court in U.S. Bank v. Quadomain Condominium Association. This prior ruling was being incorrectly applied to assert that associations were barred from filing foreclosure actions based upon a claim of lien recorded after the recording of a notice of lis pendens by a lender.

The language utilized in Quadomain created confusion for cases involving association lien foreclosures, which has become one of the primary remedies for associations to address the inequities caused by mortgage foreclosure cases that take years to complete. By filing and quickly prosecuting separate foreclosure actions based on liens for unpaid assessments, associations have been able to acquire and rent properties embroiled in prolonged mortgage foreclosure proceedings.

dbr logo-thumb-400x76-51605The ruling created a substantial hurdle for associations to overcome against homeowners who raised the Quadomain defense, which in some cases enabled the owners to defeat or delay association foreclosure actions and remain in their residences without paying monthly dues or mortgage installments while the lenders’ foreclosure cases languished.

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The South Florida condominium association that I wrote about in this blog recently after it was featured in a local TV news report on its problems being caused by Pokémon Go players has now filed a class action lawsuit against the makers of the immensely popular game app.

As was documented in the recent report that appeared on Local 10 News (WPLG-ABC) in Miami-Dade and Broward, the oceanfront Villas of Positano in Hollywood, Fla. has essentially been besieged by crowds of people every night who are playing the “augmented reality” game.  The 62-unit condominium tower has been designated as a PokéStop in the game, which the lawsuit alleges has led to “out of control crowds” behaving “like zombies, walking around bumping into things” where the property adjoins the public boardwalk along the beach.

The complaint, which was filed recently in the U.S. District Court for the Northern District of California, is one of several similar new lawsuits against San Francisco-based game developer Niantic and the two other companies behind the game.

pokemonThe lawsuit states that players have been drawn to the Villas to capture rare Pokémon characters that are programmed to spawn when they are first released to the public at 3 a.m. EST.

The suit states that the Pokémon Go players linger for hours, litter, and many even use “the Villas’ landscaping as a toilet during their nightly incursions.”  It notes that the association has made multiple requests to Niantic for the property to be removed as a PokéStop but has only received form responses.

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