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Marc-Smiley-SRHL-law-200x300The firm’s latest Miami Herald “Real Estate Counselor” column in today’s edition of the newspaper is authored by partner Marc A. Smiley and titled “Reserve Funding Requirements Are Growing Priority for Many South Florida Condominiums.”  The article focuses on the new reserve study and funding requirements in Florida, and it begins with information on reserves from a new report issued recently by the Community Associations Institute’s Foundation for Community Association Research.  Marc’s article reads:

. . . The report indicates that about $26.6 billion in assessments are contributed to association reserve funds for the repair, replacement, and enhancement of common property, e.g., replacing roofs, resurfacing streets, repairing swimming pools and elevators, meeting new environmental standards, and implementing new energy-saving features.

The new Florida condominium legislation requiring buildings three stories and taller to fund reserves and pass engineering inspections will account for many significant increases in association expenses for the state’s aging condo buildings. Such communities will likely be forced to increase their association dues from their owners in order to pay for ongoing operating expenses as well as long-term repairs and replacements.

MSmiley-Herald-clip-for-blog-12-4-22-101x300For those condominium communities that find their reserves woefully underfunded and in need of significant increases, the boards of directors and property managers must communicate the severity of the situation and answer owners’ questions during their board meetings. Such a proactive approach will be necessary in order to effectively illustrate the true costs of maintaining the community and complying with the new funding and inspection requirements. All associations members will need to be made keenly aware of everything it takes to maintain their community’s standards while also setting aside enough funding for foreseeable long-term maintenance, repair and replacement costs.

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EvonneAndris-srhl-law-200x300The firm’s latest Miami Herald “Real Estate Counselor” column is authored by partner Evonne Andris and appears in today’s edition of the newspaper.  The article, which is titled “Response to Negative TV News Report by HOA Shows How It’s Done,” focuses on a recent case from San Antonio, Texas, involving a homeowner’s car that was wrongfully towed by her HOA.  As often happens in such instances of community association missteps, the homeowner responded by reporting the incident to her favorite local TV news station.  Evonne’s article reads:

. . . “We looked into the claim,” begins the story from KENS 5, the city’s CBS affiliate. Jennifer Holmquist tells the station her son’s car was suddenly gone from their driveway, and they were about to report it stolen when they learned it had been towed by the Mountain Lodge Homeowner’s Association with no advance warning.

“Nothing on the door, no phone call, no email,” she complains to the reporter. She also bemoans that she was told by the towing company it would cost $300 to get the car back.

EAndris-Herald-clip-for-blog-11-20-22-103x300In similar situations of community association disputes across the country, what typically follows is an account of how the reporter attempted to get a response from the association, but none was forthcoming. In some cases, the journalists receive a written response from the association’s attorney that defends its actions and holds firm that they were in accordance with the community’s policies and regulations.

However, when the acts taken by an association are in error, simple no comment responses or those focusing on community policies and regulations may not be the best position to take. Such cases highlight the importance of a well thought out response. In this situation, it was verified that the removal of the vehicle on the community’s behalf was the result of a miscommunication with the HOA’s towing company, so the association and its board of directors had a decision to make.

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Shari-Garrett-002-200x300The firm’s latest Miami Herald “Real Estate Counselor” column is authored by partner Shari Wald Garrett and appears in today’s Neighbors section of the newspaper.  The article, which is titled “Increases in Community Association Budgets Require Careful Deliberation, Communication,” focuses on the budgetary strains that Florida community associations are now beginning to experience.  It notes that directors and property managers are finding it particularly difficult to reconcile required increases with many community home and condominium owners, but there is no avoiding the difficult work that lies ahead.  Her column advises:

. . . One of the best budgetary approaches for associations to consider is the use of a finance/budget committee, which is able to give all the important financial questions that come into play the attention and consideration they deserve.

Ideally, finance/budget committees should be composed of three or more dedicated owners who have professional financial/accounting or budgetary oversight experience. This committee should meet year-round to discuss all matters pertaining to changes to the association budgetary plans and finances. SGarrett-clip-for-blog-11-6-22-102x300The committee’s focus should be on the implementation of the annual budget for the upcoming fiscal year, as well as all the other financial and budgetary requirements based on the association’s bylaws.

Once the committee completes and submits its proposed annual budget to the board of directors for final approval, its members should attend the coming board meeting(s) to discuss the budget and address any questions or concerns.

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A significant part of our firm’s work focuses on representing property owners in claims against their insurance carriers. We regularly counsel and represent property owners, including condominium associations, in claims involving weather/wind and nonweather water damage, fire/smoke damage, and damage to common elements such as pools, parking garages, elevators, roofs, etc.

Only rarely do such cases go to trial, but in recent months our firm’s insurance attorneys secured jury verdicts in favor of claimants involving very typical nonweather water losses. Shareholders Susan C. Odess, Stuart Sobel and Nicholas Siegfried, together with associate Zachary T. Smith, recently pursued cases against State Farm and Universal over their refusal to adequately cover damages stemming from broken water pipes and leaks.

Water-Damage-300x200The three Miami-Dade Circuit Court jury verdicts we secured in these suits are excellent examples of the types of cases that our firm’s insurance attorneys successfully handle on behalf of our clients.  We will now pursue the recovery of our attorneys’ fees and costs against these carriers.  Of equal import, we will be filing separate actions on behalf of the policyholders for all of the prevailing cases to assert a claim for bad faith.  While these claims involved homeowners, we often secure similar results for condominium associations and HOAs for comparable water-loss claims.

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MichaelHymanThe firm’s latest Miami Herald “Real Estate Counselor” column is authored by shareholder Michael L. Hyman and appears in today’s edition of the newspaper.  The article, which is titled “3 Reports of Association Fraud on Same Day Show Importance of Prevention, Vigilance,” focuses on news reports from across the country that made headlines on Sept. 26 of three cases of apparent community association fraud, theft and embezzlement.  It reads:

. . . The reports began in Minneapolis when several local outlets as well as the Associated Press chronicled how a California woman had been indicted in federal court for embezzling more than $1 million from several local HOAs. Mai Houa Xiong, 47, of Fresno, California, was charged with wire fraud, aggravated identity theft, making and subscribing a false return, and other charges.

Xiong, who worked for an unnamed Minneapolis property management company from May 2013 – Oct. 2021, “had nearly unfettered access to the victim homeowner’s associations’ financials, bank accounts, vendor and contractor payments, and bookkeeping systems,” according to a U.S. Attorney’s Office news release. MHyman-Herald-clip-for-blog-10-23-22-300x300She is accused of devising and executing a scheme in which she used her access to the HOAs’ bank accounts to transfer money directly into her personal bank accounts by mislabeling and disguising the electronic transfers as legitimate expenses. She is even charged with using her signatory authority to make cash withdrawals from the HOAs’ accounts, including some withdrawals after she had been fired from the property management company in July 2021.

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Oscar-Rivera-2015-hi-res-200x300Oscar R. Rivera, our firm’s managing shareholder, was the first and the penultimate local business leader quoted in the Sun Sentinel‘s article on the repercussions of Hurricane Ian featured on the front page of today’s edition of the newspaper.  The article, which is titled “Survivors’ Decision: Rebuild or Relocate?”, focuses on the consequences of the devastating storm for residents and business owners throughout the impacted areas.  It reads:

Hurricane Ian gave southwest Floridians plenty of reasons to leave: It killed at least 115 people, crushed countless homes and businesses, turned area waterways into toxic soups and caused at least $50 to $65 billion in damages.

But as residents and business owners assess the devastation and reach for insurance policies that may or may not cover all of their losses, there appears to be an emerging consensus for rebuilding, and not relocating to areas perceived to be less vulnerable to catastrophic storms.

ORivera-SS-clip-for-blog-10-10-22-134x300It is a mindset, analysts say, driven by a long-standing affinity for Gulf Coast living, a strong resolve among public and private sector interests, and a growing tolerance of devastating hurricanes as life disruptors.

“We have already been contacted by numerous clients and potential clients,” said Oscar Rivera, managing shareholder of the Siegfried Rivera law firm in Miami, which represents condominium owners, associations and commercial real estate investors. “Everyone we have spoken to is committed to rebuilding.”. . .

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Nicole-Kurtz-2021-200x300The firm’s latest “Real Estate Counselor” column in the Miami Herald is authored by shareholder Nicole R. Kurtz and appears in today’s edition of the newspaper.  The article, which is titled “Community Association Disputes? Here’s How to Minimize and Avoid Them,” focuses on the most common types of association clashes, the damage they can do, and some of the best approaches for associations to steer clear of them.  It reads:

. . . [F]or most communities to realize the benefits that stem from effective association oversight, some disputes are inevitably bound to arise from time to time. Some of the most typical association clashes involve:

  • Matters arising from compliance with state laws and municipal regulations;
  • Financial issues, including collections, special assessments and reserves;
  • Rule enforcement, including violations, suspensions and fines;
  • Architectural review applications and decisions;
  • Amendments to governing documents;
  • Maintenance of community amenities, and rules governing their use;
  • A perceived lack of transparency, including ineffective communications of association rules, changes and operational procedures to owners and residents;
  • Seemingly inadequate responses to residents’ concerns and complaints;
  • Meetings and their discussions, agendas and notices;
  • Devising, implementing and enforcing new rules and restrictions;
  • Renovations and alterations to the common elements or common areas;
  • Maintenance of the common elements and areas;
  • Board of director election irregularities and concerns;
  • Vendor contracts.

NKurtz-Herald-clip-for-blog-10-9-22-103x300The most effective community association boards of directors understand their business decisions will inevitably lead to disputes from time to time, but they should seek to avoid perceived minor or frivolous disputes whenever possible. They should also try to minimize or avoid significant disputes that may negatively impact the association’s operations and sow discord within the community.

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Roberto-Blanch-2021-1-200x300The firm’s latest Miami Herald “Real Estate Counselor” column was authored by partner Roberto C. Blanch and appears in today’s edition of the newspaper.  The article, which is titled “HOA Policies on Signs, Flags Require Diligent Discussion and Deliberation,” focuses on the issues surrounding yard signs and flags in HOA communities that often arise prior to presidential and midterm elections.  Roberto’s article reads:

. . . Many community associations have already established rules covering yard signs, flags and displays, as they have been a long-time cause of questions and concerns in gated enclaves. Even the Florida legislature weighed in on the matter years ago by enacting a state law prohibiting HOAs from banning respectful displays of the U.S. flag as well as the state flag and those of the branches of the armed services.

For community associations that have not yet addressed policies regarding yard signs and displays, taking a proactive approach may well be the most effective option for such a significant and recurring issue. Enacting policies could help to minimize the potential for discord that may arise if neighbors with opposing viewpoints try to outdo each other with walls of signs at their property lines. Not only would such displays be unsightly; they could also significantly compromise harmony within the community and the adherence to mutual respect among fellow owners/residents.

RBlanch-clip-for-blog-9-25-22-300x300The place to start, as with most matters involving the enacting of new rules and restrictions, is with a careful review of an association’s governing documents by qualified legal counsel. The terms of an association’s declaration, by-laws and articles of incorporation — together with an analysis of the applicable statutes — will guide the decision establishing the approach which should be taken to make the changes. While at times it may be necessary to conduct and obtain votes of a community’s owners to amend the restrictive covenants, some restrictions may be more easily achieved by having the board of directors modify existing rules or enacting new rules.

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Shari-Garrett-002-200x300The latest edition of the firm’s “Real Estate Counselor” column is authored by partner Shari Wald Garrett and appears in today’s edition of the Miami Herald.  The article, which is titled “Drones Can Get Tempers Flying High in HOA Communities,” focuses on the issues stemming from the use of drones in communities with associations and the types of restrictions that many communities are putting in place.  Her article reads:

. . . Owners and residents in HOA communities across the country have expressed concerns over drones equipped with cameras being capable of surveilling their properties and backyards. There have also been outcries that have made local media headlines over associations’ use of drones.

To address these issues, the Florida legislature enacted in 2015 the “Freedom from Unwanted Surveillance Act,” which bans the use of drones “equipped with an imaging device to record an image of privately owned real property or of the owner, tenant, occupant, invitee, or licensee of such property with the intent to conduct surveillance on the individual or property captured in the image in violation of such person’s reasonable expectation of privacy without his or her written consent.”

The law further clarifies that a person is presumed to have a “reasonable expectation of privacy on his or her privately owned real property if he or she is not observable by persons located at ground level in a place where they have a legal right to be, regardless of whether he or she is observable from the air with the use of a drone.”

SGarrett-clip-for-blog-9-11-22-101x300Interestingly for municipalities and possibly also for licensed community association managers acting as agents of associations, the law does not prohibit the use of a drone “by a person or an entity engaged in a business or profession licensed by the state, or by an agent, employee, or contractor thereof, if the drone is used only to perform reasonable tasks within the scope of practice or activities permitted under such person’s license.”

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susanodess-srhl-224x300Michael-Clark-Gort-photo-200x300Shareholders B. Michael Clark, Jr. and Susan C. Odess authored the latest edition of the firm’s “Real Estate Counselor” column appearing in today’s Miami Herald.  The article, which is titled “Don’t Let Your Guard Down: Here Are Some Hurricane Prep, Recovery Reminders for Storm Season’s Second Half,” focuses on the types of activities and initiatives that condominium associations along the coast and other Florida community associations should be taking in advance of as well as in the aftermath of a severe hurricane.  Their article reads:

. . . Given the precarious condition of the Florida insurance marketplace today, it behooves property owners and community associations throughout the state to take the upmost precautions to prepare for any storms and recoveries as the season draws to a close in November.

For condominium associations on or near the coast, they should consider pre-negotiated service contracts with vendors who typically assist in the aftermath of a storm. This can include water restoration companies to mitigate flooding, debris removal companies, and security providers.

If a storm is approaching, boards of directors should begin by ensuring they have up-to-date paper rosters of the current residents stored at a secure and accessible location. Clark-Odess-article-for-blog-99x300Accompanying it should be a copy of the governing documents, a certified copy of the insurance policy, bank account information, service provider contracts, and contact information for all residents, staff and vendors.

It is also highly advisable to take date-stamped videos and photos of the entire property, including all mechanical and common elements.

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