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As we approach the last quarter of 2021, I wanted to check in with our readers to provide some updates from our firm.

While many of us expected the pandemic to be in our rearview mirror, COVID-19 continues to affect our community, creating challenges for how we all live and work. As a business, we have felt the importance of our mission to be a reliable resource for our clients more than ever. We continue to publish articles and offer webinars to provide you with real-time updates and helpful information to help you make better decisions for your business/community.

Our firm has also hit some significant milestones this year. We’ve added new members to our team and hope to continue growing our Siegfried work family in the coming months. Together, we’ve been able to showcase our expertise both in the media and virtually, sharing our insights with thousands of people on several important topics.

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berenice-m-mottin-berger-2021-300x300LTLehr-2018-Siegfried-Rivera-200x300An article authored by the firm’s Lindsey Thurswell Lehr and Berenice Mottin-Berger 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 appear in the print edition.  The article, which is titled “Funding Community Association Repairs and Renovations,” concentrates on how the funding of long-term condominium maintenance, repair and replacement projects has become a major focus at many communities across the country after the horrific tragedy of the collapse in Surfside, Fla.  It notes that many association board members who previously might have avoided increasing monthly assessments and implementing large special assessments are now looking to evaluate and address the inevitable deterioration of their buildings.  Lindsey and Berenice’s article reads:

. . . Rather than kicking the can down the road in hopes that future boards will address worsening maintenance concerns, association directors are coming to terms with the fact that delayed repairs and maintenance are likely to exacerbate structural problems and increase the eventual costs, in addition obviously to the potential life-safety risks, to be borne by the owners. dbr-logo-300x57As never before, association boards and unit owners have become keenly aware of the importance of maintaining adequate financial reserves to fund future construction projects.

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Eduardo-Valdes-srhl-lawAn article authored by firm partner Eduardo J. Valdes is featured in the op-ed “Opinions” page of today’s South Florida Sun Sentinel.  The article, which is titled “Post-Surfside, condo associations must be proactive with change | Opinion,” focuses on the impact that the horrific tragedy of the Champlain Towers South collapse has had on the condominium associations for similar towers nationwide and their boards of directors.  Eduardo notes that in addition to the shared grief and remorse with the families and friends of all the victims, many condo owners across the country are now raising questions about their own buildings’ structural safety and financial health, and some have also begun to feel more concerned about the funding of reserve accounts for major repairs and replacement projects.  His article reads:

 . . . All buildings deteriorate over time, so associations should always set aside funding on an ongoing basis to mitigate and remediate any structural elements that require attention.

As they begin reassessing their associations’ commitments, condominium boards of directors will generally try to avoid special assessments demanding additional funds from all the unit owners. They will need to consult with legal, financial, engineering and insurance professionals to strike a balance between the funding of reserves and the use of special assessments when they become necessary from a life-safety standpoint.

Sun_Sentinel_Logo-300x97Condominium association directors and unit-owner members would also be well advised to come to terms with the new reality that future buyers will now have many more questions and concerns than in the past about the financial health of the association and current state of the actual property from the ground up. Some will surely request that sellers provide them with the minutes from prior board meetings, information on any past or planned special assessments, the status of renovation and remediation projects, past changes to the monthly assessments over the years, the findings of past reserve studies, and the status of current reserve funding. They are also now more likely to conduct a thorough visual inspection of the entire property prior to making a written offer.

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Several bills that will impact community associations throughout the state were enacted into law this year. The following are summaries of community association-related bills that the Governor approved:

Senate Bill 72: Civil Liability for Damages Relating to COVID-19

Florida-legislature2-300x169The 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 March 29th it became the year’s first bill signed into law by Gov. Ron DeSantis. With the enactment of Senate Bill 72, creating Section 768.38, Florida Statutes, businesses are now afforded protection from civil liability claims stemming from the Covid-19 virus as long as the business made a good faith effort to substantially comply with government-issued health standards or guidance at the time the cause of action would have accrued.

Individuals seeking to file claims for coronavirus-related injuries or death against covered entities will need to provide an affidavit from a medical professional asserting that they contracted the virus at the corresponding property. The claims must also demonstrate “clear and convincing evidence” of “gross negligence” in order to establish its validity. In order to prevail, plaintiffs will also be required to demonstrate in court that a defendant did not make a good faith effort to comply with public health guidelines.

The law also sets a one-year statute of limitations for the filing of lawsuits from either the date of death, hospitalization or the Covid-19 diagnosis involved in the claim, whichever is latest. The new law applies to claims that accrued before the enactment of the law and within one year following the Governor’s March 29 signing, but it does not apply to lawsuits that have already been filed.

Senate Bill 630: Community Associations

Section 627.714, Fla. Stat., has been revised to provide that if a condominium association’s insurance policy does not provide rights for subrogation against the unit owners in the association, an insurance policy issued to an individual unit owner in the association may not provide rights of subrogation against the condominium association.

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In the hours, days and now weeks since the horrific tragedy of the Surfside condo collapse, the firm’s Gary Mars and Stuart Sobel have been among the most sought-after expert sources by local and national media.  They have conducted extensive interviews with NBC News, the Miami Herald, South Florida Sun Sentinel, Daily Business Review, Law 360 and The Real Deal.  In addition, Gary and Stuart appeared live in wide-ranging interviews on The Florida Roundup and Sundial, the news and public affairs shows produced and aired by WLRN FM-91.3, the South Florida National Public Radio affiliate.

wlrn-300x113Both of these interviews covered a great deal of ground, and we encourage all those interested in learning more about the questions involving the legal ramifications of this tragedy and the liabilities of the insurer, builders, engineers and architects to listen to both.  Gary’s interview on The Florida Roundup aired on Friday, July 2, at 1 p.m., and it’s available to be heard in full by clicking hereGaryMars-200x300He discusses the implications for condominium association boards from the collapse as well as the reforms that may be in store.  He believes these should include federal relief, perhaps in the form of federally backed low interest loans for condominium associations in need of undergoing extensive repairs.

Stuart’s interview aired during the Sundial show at 1 p.m. on Tuesday, July 6.  He discusses the extremely high qualifications of the judge and engineer assigned to the case, and he also shares his insights into the projections for the investigation and the ultimate compensation for the victims and their families.  Stuart-Sobel-2013-200x300It is a wide-ranging discussion that also delves into the projected reforms that he foresees are likely to follow.  Stuart’s interview is available by clicking here.

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The collapse of the Champlain Towers South condominium has been a human tragedy of unimaginable proportions, and the unspeakable grief and horror of its aftermath have been shared deeply by our law firm.

Our firm’s community association law attorneys have made helping condominium communities to contend with construction defects a particular focus of our work.  We believe reforms should be considered to require engineers to report certain serious conditions to local building departments wherever they find them.  This would take discretion out of equation and immediately involve building inspections, permits being issued and repairs being completed.  We also suggest there should be new federal/state government aid and/or low-interest federally backed loans for condominium associations that now engage in major structural repairs.

Our attorneys are also concerned by the great deal of misinformation that is currently circulating over the legal liabilities of association board members.  We note that lawsuits against a condo association are ultimately against the building’s insurer and possibly all the unit owners, as the owners can be held responsible for their association’s liabilities.  The firm’s attorneys have been reaching out to our clients to remind them of importance of prioritizing engineering findings in their turnovers to new board members and property managers, and to focus on structural issues over aesthetics and fund reserve accounts for any necessary repairs.

Stuart-Sobel-2013-200x300Our firm’s attorneys have also been sharing their insights on these and other issues with major media outlets as well as some of Florida’s lawmakers and policymakers, and we have scheduled a free live webinar on 40-year recertifications and structural maintenance for today at 1 p.m. (click here for information and online registrations).  The Sun Sentinel and Daily Business Review immediately turned to our board certified construction and condominium law experts for their input in the aftermath of the collapse.  A front-page article in the Sun Sentinel that appeared in the Friday, June 25, edition titled “How to Know if Your Condo Tower is Safe” includes insights from firm partners Stuart Sobel (pictured here) and Roberto C. Blanch.  The article reads:

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Jason-Rodgers-Da-Cruz-002-200x300The efforts of firm shareholder Jason M. Rodgers-da Cruz, together with Patrick S. Montoya of the Coral Gables-based law firm of Colson Hicks Eidson, were the subject of a front-page article headlined “This Miami Case Was Too Big For the Courtroom: Organizing Convention Center Trial ‘Like Setting Up a Show’” in today’s edition of the Daily Business Review, South Florida’s exclusive business daily and official court newspaper.  The article discusses how it was going to be impossible for all of the jurors, defendants and their legal counsel to safely hold a trial at the Miami-Dade County Courthouse under Covid restrictions for a lawsuit by firm client Latitude on the River Condominium Association against eight defendants over the property’s allegedly faulty fire-sprinkler system.  Even though the case was ultimately settled confidentially before proceeding to trial, the duo’s plans to hold the proceedings in the James L. Knight Convention Center are now serving as a blueprint for remote courtroom proceedings for large multi-party cases with adequate social distancing precautions.  The article reads:

. . . The case, which took more than five years of litigation and multiple hearings, involved a class-action lawsuit brought by Latitude On The River Condominium Association Inc. against eight defendants over an alleged faulty fire sprinkler system with incompatible components.

dbr-logo-300x57Miami-Dade Circuit Judge Jennifer Bailey allowed plaintiffs attorneys Jason M. Rodgers-da Cruz of Siegfried Rivera and Patrick S. Montoya of Colson Hicks Eidson to work with her staff to plan for the massive jury trial. Jury selection was scheduled to start at the end of April.

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berenice-m-mottin-berger-2021-300x300LTLehr-2018-Siegfried-Rivera-200x300An article authored by the firm’s Lindsey Thurswell Lehr and Berenice Mottin-Berger appeared today as the featured expert commentary column in the online edition of the 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 the print edition.  The article, which is titled “Buyers at New S. Fla. Communities Must Diligently Protect Interests During, Post-Turnover,” begins by acknowledging that the South Florida housing market is now booming, thanks in large part to an influx of professionals relocating here and increased work-from-home opportunities under the new post-pandemic normal.  The attorneys note that many of the region’s new residential developments now rushing to completion will soon undergo the turnover process by which control of their operation and management is transferred from developers to property owners.  They write that this is a crucial stage with significant consequences for the long-term financial and administrative well-being of communities, making it essential for property owners to closely monitor the turnover process to protect their rights and investments.  Lindsey and Berenice’s article reads:

. . . Generally speaking, the turnover process presents the initial opportunity for new owners and owner-controlled boards of directors to hire independent legal counsel, financial professionals, and engineers to conduct meticulous inspections of a community’s property as well as its rules and business records. Communities at this stage will need to diligently interview and investigate prospective service providers to ensure only independent and highly qualified professionals are retained to represent the interests of all owners and hold developers to their warranty obligations.

dbr-logo-300x57As owner-controlled communities have different goals and needs than those still operating under the regime of their developer, the drafting of new rules regulating community affairs, collections policies and construction matters should be considered.

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MTobacksrhl-law2-200x300An article by the firm’s Michael Toback was posted today as the featured expert guest commentary column on the homepage of the website of the 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 the print edition.  The article, which is titled “Ruling Illustrates Perils in Foreclosures of Noncompliance With Documents, Miscalculating Claim of Lien,” discusses a recent ruling by the state’s Fourth District Court of Appeal that highlights not only the significance of associations complying with the provisions of their governing documents in foreclosures, but also the implications of a mistake in the calculation of the “assessment amount due” in determining the ultimate validity of an association’s claim of lien.

Michael’s article begins by noting that most community association governing documents require the association to provide an annual budget to each homeowner with the assessments for the coming year and their due dates, as well as a certificate setting forth the amount of current assessments upon request.  If an owner becomes delinquent in their assessment payments, Florida law calls for associations to issue a demand letter to the owner outlining the amounts that are outstanding. If such demands prove unsuccessful after 45 days (30 days for condominiums), associations may then file a claim of lien against the owner’s residence for the assessment amount due.

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His article continues:

. . . In Pash v. Mahogany Way Homeowners Association, the HOA filed a foreclosure against unit-owner Gary Pash claiming he had failed to pay outstanding quarterly assessments and costs.  Both parties filed dueling summary judgment motions, and the circuit court ultimately entered summary judgment for the HOA and denied summary judgment for the owner.

The Fourth DCA panel’s majority opinion overturned the HOA’s summary judgment, concluding that the evidence presented by the HOA failed to include each of the relevant budgets and notices, together with the proof they were provided to the unit owner, in order to combat Pash’s affidavit in opposition.

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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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