Condominium Association Law

July 17, 2022

Firm’s Latest Miami Herald Real Estate Column by Lindsey Thurswell Lehr: “Condo Terminations Require Ample Consideration by Association Directors and Unit Owners”

by Siegfried Rivera

Siegfried Rivera

The firm’s latest “Real Estate Counselor” column in the Miami Herald appears in today’s newspaper and is again authored by partner Lindsey Thurswell Lehr. Her column, which is titled “Condo Terminations Require Ample Consideration by Association Directors and Unit Owners,” focuses on the rise in South Florida in condominium terminations involving building-wide purchases of all the units by developers. While such terminations may be inevitable for some buildings, Lindsey writes that they are typically contentious with some owners steadfastly opposed to the forced sale of their property. Her column reads:

. . . Florida’s condominium termination statute is one of the most controversial aspects of the state’s condo laws. The current statute, which has seen several significant changes over the years, enables owners to work together in the bulk sale of their units to a developer hoping to demolish a condominium and build a new one in its place.

Currently, the statute allows for an optional termination with a vote of 80 percent of the unit owners, but it also enables five percent or more of the owners to block a termination from proceeding for a period of 24 months by rejecting it in writing or via a negative vote.

As my fellow firm partner Oscar Rivera wrote in this column in February, condominium developers are now setting their sights on many potential targets for termination bids in South Florida’s red-hot real estate market.

For aging properties that are now uncovering potential structural life-safety issues, the lessons from Surfside cannot be ignored. They must either immediately ratify a plan to fund and execute the necessary repairs and remediation, or they must work to secure the best possible condo termination exit strategy for all the unit owners as expeditiously as possible.

July 3, 2022

Firm’s Miami Herald Real Estate Column by Lindsey Thurswell Lehr: “Community Associations Should Consider Amending Their Amendments Process”

by Siegfried Rivera

Siegfried Rivera

The latest edition of the firm’s Miami Herald “Real Estate Counselor” column appears in today’s edition of the newspaper and is authored by Lindsey Thurswell Lehr. The article, which is headlined “Community Associations Should Consider Amending Their Amendments Process,” focuses on the inability for many community associations to amend their governing documents, and it suggests a possible solution. Lindsey’s article reads:

. . . Declarations, covenants and bylaws are recorded in the local court registry and provided to all buyers prior to their purchase, as they essentially set the terms of the contract and serve as mini constitutions setting forth the rights and duties between unit owners and their association.

These governing documents are originally codified by a community’s developer, and they often include dated and problematic provisions that are in dire need of updating as communities grow and owners’ goals change.

However, amendments to an association’s recorded governing documents often require a vote of the unit-owner membership, and sometimes the documents demand a minimum approval of two-thirds or even three-quarters of all the owners for an amendment to be ratified.

Such voting thresholds are extremely difficult for most communities to achieve. In fact, many Florida communities have difficulty achieving the legally mandated minimum voter-participation requirements to conduct valid board member elections or hold membership meetings.

Indeed, changing the recorded governing documents is often significantly more difficult than matters requiring only a simple vote of the board of directors, but communities with troublesome and outdated provisions should still take the challenge head on and make it a priority.

June 19, 2022

Firm’s Miami Herald Real Estate Column: “Community Associations Should Break Ties with Developer, Board Members During Turnover”

by Siegfried Rivera

Siegfried Rivera

The firm’s latest Miami Herald “Real Estate Counselor” column by Gary M. Mars appears in today’s print edition of the newspaper and is titled “Community Associations Should Break Ties with Developer, Board Members During Turnover.” The article focuses on the turnover process by which control of a community’s operations and management is transferred from its developer to the home/condo buyers. Gary notes that this is one of the most critical junctures for the future administrative and financial wellbeing of all condominium and HOA communities, and those owners who have made the investment to be the charter members of their new association should always begin their takeover with the same vital step: breaking ties with the developers’ board members and experts. His article reads:

. . . Turnover is when a new community’s unit owners get their opportunity to hire independent legal counsel, financial professionals, and engineers to conduct meticulous audits and inspections. A very careful review of all a community’s rules and business records, as well as the physical state of the entire property, is very much the order the day. The end goal is to hold the developer, as well as its contractor, suppliers and design professionals, accountable for any budget shortfalls and construction deficiencies.

Given the nature of the task at hand, this work should always begin with the careful vetting of prospective advisor accountants, attorneys and engineers to ensure only independent and highly qualified professionals are retained by the new owner-controlled board, which must be expeditiously transitioned away from any directors and professionals appointed by the developer during its preceding control of the association, or with any ties to the developer.

The financial, engineering and legal experts retained by the new unit owner-controlled board of directors will be charged with representing the interests of all the owners by holding the developer, contractor, suppliers and design professionals to their warranty and financial obligations. They should also be tasked with changing any rules regulating community affairs, collections policies, and construction matters that were in place under the developer’s regime for its primary benefit.

June 5, 2022

Miami Herald Real Estate Column by Roberto Blanch: “Lawmakers Deliver Huge Milestone in Evolution of Florida’s Condo Laws”

by Siegfried Rivera

Siegfried Rivera

The firm’s latest Real Estate Counselor column in today’s Miami Herald is authored by Roberto C. Blanch and titled “Lawmakers Deliver Huge Milestone in Evolution of Florida’s Condo Laws.” The article focuses on the state legislature’s passage of the most far-reaching condominium safety reforms in Florida since Hurricane Andrew. It reads:

. . . The changes include many of the proposals from engineering, legal and community association industry task forces aimed at studying the perceived shortcomings that led to the Surfside catastrophe. They require inspections for buildings three stories or higher 30 years after completion and every 10 years thereafter. Buildings within three miles of the coast must be inspected at 25 years, then every 10 years. The first buildings impacted are slated to be those constructed before July 1, 1992, as they must complete their first structural inspections prior to Dec. 31, 2024.

The inspections are aimed at identifying any substantial structural deterioration that may present life-safety dangers, and whether remedial or preventive repairs are recommended. The reports on their findings will be required to be distributed to association unit owners, prospective buyers and local building departments, which may then require the start of repairs within specified timeframes if substantial deficiencies are identified.

Associations will also be required to conduct reserve studies every 10 years for the funding of structural repairs and, most important, beginning by 2025 they will no longer be allowed to waive funding of many reserve components.

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June 1, 2022

Florida Legislature Passes Swift Safety Reform Bill During Special Session

by Laura Manning-Hudson

Laura Manning-Hudson

Condominium safety reforms were very much in the spotlight during this year’s regular session following the unforgettable tragedy in Surfside, Florida. Though legislators could not agree on legislation pertaining to safety reforms during the regular session, they successfully did so during a special session. In a surprising move, Senate Bill 4-D unanimously passed in both the House and Senate and was recently signed into law by the Governor. The following are the key takeaways from the 88-page bill:

The “Milestone Inspection”

Florida has now imposed a state-wide structural inspection program for condominium and cooperative associations that are three (3) stories or more in height defined as a “milestone inspection.”
Community association managers or management companies contractually hired by a condominium association that is subject to this inspection must comply with this section as directed by the board.
Milestone inspections must be performed by December 31 of the year in which the building reaches 30 years in age, based on the issue date of the building’s certificate of occupancy, and every 10 years thereafter. Buildings located within 3 miles of the coastline must perform a milestone inspection by December 31 of the year in which they reach 25 years in age, and every 10 years thereafter. Buildings with a certificate of occupancy that was issued on or before July 1, 1992 must have the initial milestone inspection performed before December 31, 2024.
Condominium and cooperative associations are responsible for the scheduling and costs associated with the milestone inspection.
Milestone inspection means a structural inspection of a building’s load-bearing walls and primary structural members/systems.
Milestone inspections must be performed by a Florida licensed engineer/architect who must attest to the life safety and adequacy of structural components of the building. To the extent that it’s reasonably possible, the inspection must determine the general structural condition of the building as it affects the safety of building, such as necessary maintenance, repairs and replacements of structural components.
“Substantial structural deterioration” is described as substantial structural distress that negatively affects the building’s general structural condition and integrity.

fla-legislature-300x198 Milestone inspections will consist of two phases:

- Phase one — Visual examination of habitable/nonhabitable areas of building. If there are no signs of structural deterioration found, phase two is not required.
- Phase two — If substantial deterioration is found during phase one, phase two may involve destructive or nondestructive testing at the inspector’s discretion. This additional inspection may be as extensive or limited as necessary to fully assess areas of distress.
- Architect/engineer who performed inspections must submit a sealed copy of the inspection report and findings to both the association and appropriate local building official
Local enforcement agencies will provide buildings required to comply with this law notice of required inspection by certified mail.
Upon receiving notice, condominium/cooperative associations will have 180 days to complete phase one of the inspection.

May 27, 2022

Roberto Blanch Again Quoted by Miami Herald in Follow Up Report on Florida’s New Condo-Safety Reforms

by Siegfried Rivera

Siegfried Rivera

Just two days after his insights were featured in the Miami Herald‘s initial article on the Florida legislature’s proposed new condominium-safety reforms, Roberto Blanch‘s input on the changes that unanimously passed in both the House and Senate on the state’s condominium associations and owners were prominently featured in the newspaper’s follow up report on today’s front page. The article, which is headlined “‘A Major Move Forward in Safety.’ A Look at How Condo Reforms Will Work,” focuses on the new requirements for condominiums to conduct regular building inspections and build sufficient cash reserves to cover structural maintenance and repairs. The article reads:

. . . The changes are laid out in a set of amendments to Florida’s condo law approved by the state House and Senate on Tuesday and Wednesday. In a surprise, the Legislature acted swiftly this week during a special session designed to address the home-insurance crisis after coming under substantial public pressure for doing nothing to shore up condo inspections and regulations following the Surfside tragedy, which claimed 98 lives.

The reform law generally hews to detailed findings and recommendations issued after Surfside by public-interest groups that include the Florida Bar, the Miami-Dade County Grand Jury, a consortium of Florida professional engineer associations, and the Community Associations Institute, a national organization that represents thousands of associations, managers and residents.

The reforms had broad but not uniform support from principal sectors of the condo industry, including association representatives, condo lawyers and real estate brokers. Together, backers say, the reforms should markedly boost confidence in the safety of Florida’s condos.

May 22, 2022

Miami Herald Column by Nicole Kurtz: “Federal and State Reforms Necessary to Address Florida’s Residential Insurance Woes”

by Siegfried Rivera

Siegfried Rivera

The firm’s latest Miami Herald “Real Estate Counselor” column authored by Nicole R. Kurtz appears in today’s Neighbors section and is titled “Federal and State Reforms Necessary to Address Florida’s Residential Insurance Woes.” It focuses on the precarious state of Florida’s home insurance market, which will be the subject of a special session by the state legislature this week. Nicole’s article reads:

. . . An article by the Miami Herald’s Ben Conarck recently chronicled how the horrific Champlain Towers collapse “has further inflamed an exodus of insurers no longer willing to underwrite policies in an increasingly risky Florida condo marketplace.” It noted that condominium associations are being forced to resort to the surplus market for less coverage at costlier rates.

“Condo associations are having a hard time getting their pre-Surfside policies renewed, forced instead to sift through estimates for less protective plans that cost twice as much, or higher. Those lucky enough to renew their policies are doing so at 30% to 50% premium increases,” according to Conarck’s expert sources.

They also indicate “[s]piraling costs and tighter restrictions in both the insurance and lending industries have led to a new fear that some particularly troubled condo buildings will be uninsurable. Companies are going to be demanding inspection and financial records — and even meeting minutes — to determine how much risk is in any given building.”

Indeed, some analysts are predicting that the state’s residential insurance market is nearing a total collapse. They point to the six property and casualty companies that offered homeowners insurance in the state but have liquidated since 2017, with two more that are in the liquidation process this year.

May 16, 2022

HOA President Arrested for Theft Using Association Debit Card

by Roberto C. Blanch

Roberto C. Blanch

A recent case from Leesburg, Florida, illustrates why community associations should avoid issuing and using debit cards in the name of the association.

According to a recent report by Leesburg News (www.Leesburg-News.com), John Joseph O’Connor was arrested and stands accused of stealing nearly $3,000 from the Coachwood Colony HOA by making multiple ATM withdrawals with the association’s debit card shortly after he resigned as president. The transactions were discovered by the association’s new treasurer, who reviewed the bank statements after joining its board of directors and discovered nine unauthorized ATM withdrawals totaling $2,972.

The astute treasurer contacted the bank and was told that the debit card used for all the transactions was the one issued to O’Connor.

The Lake County Sheriff’s Office was notified, and a deputy questioned O’Connor who said he lost his wallet with the HOA’s debit card and had reported it to the bank. However, further investigation revealed that he had never reported the card missing, and ATM surveillance video proved to be incriminating. He was arrested and released on a $7,000 bond, and is scheduled to appear in Lake County Court on May 31.

May 3, 2022

Op-Ed Article in Today’s Miami Herald: “After Surfside, Federal Condo-Safety Legislation Deserves Bi-Partisan Support”

by Siegfried Rivera

Siegfried Rivera

The firm’s Gary M. Mars was the first South Florida community association attorney to weigh in on the recently proposed SAFER in Condos Act in a major local media outlet with his article in today’s op-ed page of the Miami Herald. The article, which is titled “After Surfside, Federal Condo-Safety Legislation Deserves Bi-Partisan Support,” focuses on the SAFER in Condos Act that was recently introduced in the U.S. Congress by Florida representatives. It notes that questions regarding condominium safety have been in the spotlight since the horrific Champlain Towers tragedy that claimed 98 lives, and changes failed to pass in the state legislature but have been enacted at the federal level from lenders and also at the local level from counties and municipalities. Gary’s article reads:

. . . Part of the reason the state legislature could not agree on a set of reforms was because the new funding requirements for structural repairs would have been too much for the unit owners of many condominium communities to bear. Plus, financing options for both condominium associations and their unit owners for such extremely costly property restorations were getting worse by the day, as interest rates have been on the rise and are predicted to continue climbing.

For a problem of this magnitude and national scope, only the federal government has the capability and resources to truly make an impact. Its first effort at addressing it was proposed on April 18 by U.S. Reps. Charlie Crist (D-St. Petersburg) and Debbie Wasserman Schultz (D-Broward, Miami-Dade) in the form of the Securing Access to Finance Exterior Repairs (SAFER) in Condos Act of 2022. The legislation would allow condominium owners to finance critical building repairs with loans backed by the Federal Housing Administration (FHA). Unit owners would be able to combine a special assessment from their association for structural repairs with their existing mortgage debt into a new, 30-year loan insured under the FHA home rehabilitation program.

For those who do not have a mortgage or would prefer to leave it as is and continue to pay it off, the legislation also grants owners access to the FHA Property Improvement Program to finance such an assessment over a 20-year term.

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April 10, 2022

Firm’s Miami Herald Real Estate Column: “Southwest Florida Community Associations Appear to Fall Victim to Massive Fraud”

by Siegfried Rivera

Siegfried Rivera

The firm’s latest Miami Herald “Real Estate Counselor” column authored by Gary M. Mars appears in today’s “Neighbors” section under the headline “Southwest Florida Community Associations Appear to Fall Victim to Massive Fraud.” The article focuses on what appears to be one of the largest cases of fraud and embezzlement ever committed against Florida community associations that is now unfolding in Southwest Florida. Gary’s article reads:

. . . Association directors, and also to some extent the property managers they retain, have control over communities’ purse strings, and for some enclaves we are talking about multiple millions of dollars per year. Such amounts under the control of so few have made condominiums and HOAs a favorite target of crooks and fraudsters for generations. Swindlers have embezzled millions of dollars from communities, before getting caught and facing the music in the vast majority of cases.

An excellent Naples Daily News/The News-Press investigation that remains ongoing appears to reveal sadly yet another example of the type of rampant fraud that can be inflicted on communities.

The case stems from an initial lawsuit filed by the Compass Point South at Windstar condominium association in Naples last April against American Property Management Services, owner Orlando Miserandino Ortiz, and his wife and co-owner Lina Munoz Posada. It alleges that the association and its board members lost access to their Wells Fargo Bank accounts because APMS did not add their names to the accounts, effectively locking them out.

The case was expanded in January with a new lawsuit listing 24 additional plaintiffs and new allegations, including that there is good cause to believe that the owners have left the U.S. and have been residing in Colombia for more than a year. Both complaints allege Miserandino placed funds in accounts that only he could access, preventing the associations from keeping tabs on or accessing their money. According to interviews by the journalists with the association directors, APMS took sole control of their accounts by telling them to sign signature cards but then never submitting them to the bank.