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Articles Posted in Condominium Association Law

As we reported earlier this month, Senate Bill 56 was signed into law and will go into effect on July 1, 2021. The new law makes changes to the notice requirements of foreclosure actions for condominiums. Specifically, the changes require associations to send a notice to owners of unpaid assessments before an account is sent to a law firm for collections:

d) An association may not require payment of attorney fees related to a past due assessment without first delivering a written notice of late assessment to the parcel owner which specifies the amount owed the association and provides the parcel owner an opportunity to pay the amount owed without the assessment of attorney fees. The notice of late assessment must be sent by first-class United States mail to the owner at his or her last address as reflected in the association’s records and, if such address is not the parcel address, must also be sent by first-class United States mail to the parcel address. Notice is deemed to have been delivered upon mailing as required by this paragraph. A rebuttable presumption that an association mailed a notice in accordance with this paragraph is established if a board member, officer, or agent of the association, or a manager licensed under part VIII of chapter 468, provides a sworn affidavit attesting to such mailing. The notice must be in substantially the following form:

NOTICE OF LATE ASSESSMENT

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A lawsuit that was recently filed against the Promenade at Boca Pointe Condominium Association highlights the importance of properly adopting changes to an association’s governing documents and recording them in the local court registry where the association is located. If the allegations in the lawsuit hold up in court, the association for the Boca-area community could be forced to pay the plaintiff unit-owners’ lost rental income and legal bills.

According to the suit, the association is making up rules to prevent condo owners Gerardo and Ana Vizcaino from leasing their unit for a full year. The suit states that the association’s new rule, which it apparently adopted at an August 2020 board meeting after a simple vote of the board the directors, was never approved by the members by a formal vote.

Indeed, the suit alleges that the association president acknowledged in a notice to all of the unit owners that the board’s adoption of a rule restricting rentals to one tenant per 12-month period was invalid because it had not been approved by the unit owners via an amendment to the governing documents. The only restriction in the association’s recorded declaration pertaining to rentals states that owners are only restricted from renting units for terms of less than thirty days. No other restrictions are included in the recorded governing documents.

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The Covid-19 pandemic has expanded the parameters and elevated the importance of disaster preparedness in community associations. Prior to the start of the 2021 hurricane season, community association boards of directors and property managers should reassess their disaster preparedness plans to ensure they are ready for anything and everything.

Some of the elements of a comprehensive disaster preparedness plan include detailed site plans, especially for large communities, a communications plan with all current contact information for board members and key staff/vendors, and an evacuation plan with information on public shelters as well as local gas stations and grocery stores with backup generators. Insurance information is also a must, and it should always include copies of all policies and information on claim-filing protocols.

strm-300x240The uncertainty caused by the pandemic also spotlighted the importance of unit-owner communications. Comprehensive disaster preparedness plans should include all current contact information and any other preparations necessary for outreach to residents via calls, text, email, and hand-delivered notices to all dwellings.

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Senate Bill 630, a bill that has wide support from community association industry interests across the state, passed the Florida Senate with a unanimous vote of 40 to zero. It will now move to the Florida House of Representatives for consideration.

The bill represents sweeping changes for Florida communities. It allows condominium associations to use the same non-binding arbitration process used by HOAs; increases the amount that can be charged for a transfer fee from $100 to $150; addresses insurance subrogation; and clarifies that associations’ emergency powers extend to health emergencies.

The legislation also prohibits associations from requiring certain actions relating to the inspection of records; revises requirements relating to the posting of digital copies of certain documents by certain condominium associations; authorizes condominium associations and cooperatives to extinguish discriminatory restrictions; revises the calculation used in determining a board member’s term limit; and deletes a prohibition against employing or contracting with certain service providers.

Flalegislature-300x169The bill also features several changes pertaining to electric vehicle and natural gas charging/filling stations, including: revising the requirements for electric vehicle charging stations; providing requirements for natural gas fuel stations; authorizing boards to take certain actions relating to electric vehicle charging stations and natural gas fuel stations; providing that the installation, repair, or maintenance of electric vehicle charging stations or natural gas fuel stations do not constitute material alterations or substantial additions to the common elements or association property; and providing that labor and materials associated with the installation of a natural gas fuel station may not serve as the basis for filing a lien against an association but may serve as the basis for filing a lien against a unit owner.

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Community associations often struggle with securing a quorum, which is the minimum number of voting interests required to be present in order to conduct a meeting of the members, and this challenge has been exacerbated by the pandemic. One of the most effective ways for associations to secure enough votes from unit owners to achieve a quorum and conduct their business is through the use of proxies.

A proxy is a document that allows a designated individual to attend and participate in a meeting in place of a unit owner. Florida condominium laws provide that unit owners may not vote by “general proxy” but may vote by a “limited proxy” that substantially conforms with the form provided by the state’s Division of Condominiums, Timeshares and Mobile Homes.

meeting-vote-300x300Limited proxies for association votes must contain a specific statement of what the unit owner is voting on and how the unit owner is voting. A unit owner cannot vote on specific substantive questions by a general proxy, which can be used only for the purposes of establishing a quorum and non-substantive votes, e.g., the approval of minutes, adjournment or continuance of meetings, and other matters that do not specifically require a limited proxy.

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The 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 Monday, March 29, it became the year’s first bill signed into law by Gov. Ron DeSantis. SB 72, the bill that provides several Covid-related liability protections for businesses, healthcare providers, educational institutions, government entities, religious institutions, and not-for-profit corporations such as community associations, is now the law in Florida.

Under the new law, covered entities will be shielded from civil liability for Covid-related lawsuits for monetary damages, injuries or deaths so long as the allegations do not involve gross negligence or intentional misconduct.

Flalegislature-300x169As of March 29, Florida community associations that have implemented measures to safeguard their residents and staff from the potential spread of Covid-19 in their communities and comply with local, state and federal guidelines are protected from liability for Covid-related lawsuits.

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MichaelHymanThe firm’s Michael L. Hyman authored an article that is featured as the “Board of Contributors” expert 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 “Ruling: Community Associations Can Take Owners to Court Without Completing Arbitration,” discusses how Florida law calls for associations to file for nonbinding arbitration with the state agency that regulates condominiums prior to going to court.  Michael notes that the law, which is designed to relieve Florida’s courts from routine disputes between community associations and their unit owners, certainly does not mean such arbitration proceedings under the Department of Business and Professional Regulation’s Division of Condominiums must completely run their course prior to seeking emergency relief in local circuit court, as a recent ruling by the state’s Fourth District Court of Appeal reaffirmed.  His article reads:

. . . In Aquarius Condominium Association v. Boris Goldberg, the owners of a unit refused to grant the association’s contractor access to their residence for the purposes of initiating a balcony renovation project as part of a mandated 40-year recertification for the property. In response, the association filed a petition for arbitration with the Division of Condominiums, Timeshares and Mobile Homes as prescribed under Florida law. On the very same day, it also filed an “emergency motion to abate arbitration and temporarily relinquish jurisdiction” in Broward County circuit court against the unit owners to seek injunctive relief to secure immediate access to the residence.

dbr-logo-300x57Apparently in light of the emergency court proceedings over the injunction, the arbitrator with the state agency abated the matter for three months and noted that the association would need to file a status report or the arbitration petition would be dismissed.

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Recent news reports chronicle the tale of a former Marco Island city council member who was charged with three counts of forgery of a ballot envelope and three counts of criminal use of personal identification information, which is third-degree felony, in his condominium association’s annual board of directors election.

The reports from the Naples Daily News and several Southwest Florida television stations indicate Victor Rios, 78, was charged with forging ballots for the Belize Condominium Association election to remain a board member. Several ballots for the property’s March 2019 condo election were cast under the names of residents who testified that they had not voted in the election, and their signatures on the outer ballot envelopes were forgeries.

FDLElogo-150x150Complaints alleging election fraud were filed with the state’s Division of Condominiums under the Department of Business and Professional Regulation, and with the Marco Island Police Department. MIPD subsequently asked the Florida Department of Law Enforcement to investigate the matter because Rios was a sitting city council member at the time.

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There are several bills being debated by state lawmakers in the current legislative session that will impact Florida community associations. The most significant proposed legislation for associations is also one of the most important for many of the state’s businesses.

HB 7, which creates COVID-19 liability protections for Florida businesses and nonprofit organizations, including community associations, has cleared its first committee stop with an 11 to 6 vote. Its advocates contend the measure is a necessary component to Florida’s economic recovery. Flalegislature-300x169The Florida House Speaker has vowed to make the bill a priority. Its next stop is the House Health and Human Services Committee.

One of the other measures that community association industry watchers are tracking is HB 21. House Bill 21 revises the requirements for construction defect causes of action relating to certain violations, and revises provisions relating to the requirements for notices of claim, property inspections, and service of copies of notices.

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With the Covid-19 vaccines now rolling out across the country, there is hope that in the coming months gatherings of individuals who have been inoculated could safely take place. In the meantime, many community associations are continuing to conduct virtual meetings with attendees participating online or via telephone conference.

However, various provisions of the laws governing Florida condominium and homeowner associations raise questions regarding whether such virtual meetings are being conducted in a manner that is in full compliance. For instance, applicable condominium laws stipulate that annual meetings of the unit owners for board member elections must be held at the location provided in an association’s governing documents or, if none is specified, within 45 miles of the condominium property. This leads to the question of whether purely virtual annual meetings comply with the law.

The unprecedented circumstances arising during the pandemic has therefore caused many community association managers and board members to become creative – seeking to achieve continuity of association business vis-a-vis director and member meetings while also seeking to balance the protections recommended by healthcare providers and health authorities. One example is that some associations, in an effort to ensure that a condominium’s virtual annual meeting complies with the law, have made arrangements for the board of directors’ meeting to convene physically on association property while allowing members to attend via Zoom or other platforms.

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