Articles Posted in Firm News

GaryMars-200x300Firm partner Gary M. Mars 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 is titled “Airbnb Gone Wild? Ruling Clarifies Rules on Short-Term Condo Rentals,” focuses on a recent decision by the Second District Court of Appeal that found that the fairly standard language present in the declarations of condominium and accompanying rules and regulations for many properties does not grant unit owners with the unrestricted right to lease their residences.  Gary’s article reads:

The ruling came from the Florida Second District Court of Appeal in the case of Le Scampi Condominium Association v. Hall. Le Scampi had petitioned the lower court for injunctive relief against the unit owners to prevent them from leasing their residence for less than one month without prior approval by the association in violation of its rules.

The Halls did not dispute to the trial court that they had rented their unit for periods of less than one month without prior approval, which constituted violations of the association’s rules. Their defense was based on arguments that those rules were unenforceable because they conflicted with their right to lease their unit under the community’s controlling documents.

The lower court issued a final summary judgment in favor of the Halls based on its finding that the conflict indeed existed and the language in the original declarations of condominium for the property supersedes any lease restrictions in the rules and regulations.

dbr-logo-300x57The appellate panel found that the trial court’s interpretation of the declaration was inconsistent with its plain language. It ruled that the section in question does not provide that the right to sell, lease or transfer a condominium unit is unrestricted with the exception of a notice requirement. Instead, the declaration merely imposes a prior-notice requirement and specifies the contents of the notice, but it does not otherwise address a unit owner’s right to sell, lease or transfer their unit to persons other than family members.

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Michael-Hyman-srhl-lawFirm partner Michael L. Hyman was featured in a “Profiles in Law” article by the Daily Business Review, South Florida’s exclusive business daily and official court newspaper.  The article, which appears in today’s edition of the newspaper, chronicles his career as one of the founders of community association law as a legal specialty in Florida.

The profile, which is written by DBR reporter Samantha Joseph, reads:

Michael Hyman’s journey into law reads like a series of fortunate coincidences.

It starts with a friend on his way to take the law school admission test stopping by and inviting Hyman to join him. It was the mid-1960s—decades before Hyman would contribute to shaping Florida real estate law, battle developers and help free condominium buyers in a then-emerging market from clauses buried in 99-year ground leases to escalate rents for shared amenities.

Back then, before he was shareholder at Siegfried Rivera Hyman Lerner De La Torre Mars & Sobel in Coral Gables, Hyman taught English and journalism to students five years his junior at a Hialeah high school, earning a $4,700 salary. His soon-to-be-wife, Iris, was completing her senior year of college, and he’d started considering career moves to support a young family. He knew little about law school, even less about being an attorney and had never considered taking the entrance test.

dbr-logo-300x57“I loved teaching, but it was a very different story to think about getting married and having kids,” Hyman said. “A friend of mine said he was going the next morning to take the law school admission exam. He picked me up. Without going to any type of tutelage or anything, I walked in, took an academic exam and did well enough to get admitted to University of Miami and UF.”

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GaryMars-200x300The firm’s Gary M. Mars shared his insights into the ramifications of a recent Miami-Dade grand jury report on condominium association fraud in an article in today’s edition of the Daily Business Review, South Florida’s exclusive business daily and official court newspaper.  The article, which was written by DBR reporter Samantha Joseph, notes that “[c]riminal charges could soon be in store for misbehaving condominium board members and managers if recommendations in a Miami-Dade grand jury report gain traction.  Self-dealing, destroying accounting documents, withholding records, participating in kickbacks, interfering in elections and other willful violations of Florida’s condominium statute could leave individual board members criminally liable for the first time.”

The DBR article reads:

The question isn’t whether there’s fraud and abuse among some of the boards, according to the grand jury report, which cites thousands of annual reports of alleged wrongdoing to Florida’s Department of Business and Professional Regulation. The question is how to police it and shore up a regulator described as a toothless tiger.

“Our investigation exposed . . . severe weaknesses within the current laws and regulations,” the grand jury concluded. “Because the condo laws and regulations lack ‘teeth,’ board directors, management companies and associations have become emboldened in their willful refusal to abide by and honor existing laws in this area. They even engage in fraudulent activity which goes unpunished.”

The report took aim at the Department of Business and Professional Regulation — an allegedly understaffed agency with broad jurisdiction over condo associations and more than 1 million businesses and professionals, including accountants, contractors, cosmetologists, veterinarians and real estate agents.

“The DBPR seems ill-suited to resolve, correct or prevent many of the recurring problems that have been brought to their attention,” it stated.

dbr-logo-300x57. . . Longtime community association counsel Gary Mars, shareholder at Siegfried, Rivera, Hyman, Lerner, De La Torre, Mars & Sobel in Miami, applauded the agency’s efforts in juggling thousands of complaints that would otherwise clog civil courts, but suggested an overhaul to place criminal cases beyond the department’s purview.

“Ultimately these should end up in a court proceeding, rather than going through a state agency,” he said.

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Michael-Hyman-srhl-lawThe firm’s Michael L. Hyman 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 is titled “Association Deficits Don’t Excuse Developer From Funding HOA Reserves,” focuses on a recent decision by the Florida Fifth District Court of Appeal that found a developer was not excused from funding reserves while it remained in control of the association and was funding deficits in the operating expenses.  Michael’s article reads:

For the developer of the Sullivan Ranch community in Mount Dora north of Orlando, it appears that its decision to stop funding reserves after it established the account and began funding it in 2007 has significantly backfired. The Fifth District Court of Appeal recently overturned a lower court’s summary judgment, which concluded that the developer was excused from funding reserves while it remained in control of the association and was funding deficits in its operating expenses.

The Fifth DCA’s decision in Sara R. Mackenzie and Ralph Mackenzie v. Centex Homes et al. illustrates the importance for developers of HOA communities to tread carefully whenever they attempt to avoid funding for association reserves. Condominium developers are provided with a statutory mechanism to avoid funding for reserves if they guarantee a set minimum level for the association’s entire annual budget during its first two years of existence, but the laws governing HOAs do not include this exemption.

dbr-logo-300x57Based on the circumstances in this case, it appears that the developer of the community was either unaware of its statutory requirements governing the funding of reserves or it failed to adequately think through its actions. After establishing the account for the association’s reserves and funding it in 2007, the developer opted to pay Sullivan Ranch’s operating expenses in lieu of making any contributions to the reserve account in the following years, claiming that it had made no guarantee to fund the reserves.

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Steve-Siegfried-2013-srhl-lawSteven M. Siegfried, our firm’s founder who launched the practice 40 years ago in 1977, was the subject of a “Profiles in Law” article published by the Daily Business Review, South Florida’s exclusive business daily and official court newspaper.  The article, which appears in today’s edition of the newspaper, chronicles his career and highlights his achievements as a construction law specialist, professor and writer for the last four decades.

The profile article, written by DBR reporter Samantha Joseph, reads:

Steven M. Siegfried wrote the book on construction law. The literal book. The one the American Bar Association published in 1987 as an early nod to a then-fledgling practice area.

His work, “Introduction to Construction Law,” became a standard reference for real estate and construction lawyers across Florida for the past three decades. Over several incarnations, it helped establish the Siegfried Rivera Hyman Lerner De La Torre Mars & Sobel partner as a foremost authority on a specialty he’s long championed.

The article notes that Steve’s other publications focus on construction lien law, construction defects, condominium warranty claims and the statute of limitations, culminating with his authoring of “Florida Construction Law” by Aspen Publishers in 2001.

dbr-logo-300x57It states that his concentration on construction and community association law began in 1976, when he foresaw that the real estate sector would become a pillar of the region’s economy that would require highly specialized practitioners.  The article notes that his firm “will celebrate its 40th anniversary this year. It employs 46 attorneys concentrating on real estate, construction, community associations, and property insurance . . . from offices in Miami-Dade, Broward and Palm Beach counties.”

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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 “Rulings Clarify Application of Safe Harbor Caps on Association Dues,” focused on a couple of recent Florida appellate court rulings that brought additional clarity to the application of the criteria for foreclosing lenders and servicers to qualify for the caps that limit their liabilities for association dues.  Michael’s article reads:

In Brittany’s Place Condominium Association v. U.S. Bank, the Second District Court of Appeal settled some lingering questions as to whether a lender or servicer that takes title to a residence via a mortgage foreclosure must also be the current owner of the first mortgage when the final judgment of foreclosure is issued.

The case stems from a 2009 mortgage foreclosure action filed by U.S. Bank against the unit owner and all interested parties, including the association. The bank alleged that it was both the holder and servicer of the note and mortgage, acting on behalf of and with the authority of the owner. It was in possession of the note endorsed in blank, but the Federal Home Loan Mortgage Corp., better known as Freddie Mac, owned the note and mortgage.

After securing a final judgment of foreclosure and acquiring title to the property via the foreclosure sale, U.S. Bank requested an estoppel letter from the association to determine the amount of past-due assessments. The parties could not agree on the extent of the lender’s liability, and the association eventually filed a lien foreclosure complaint against the lender, which then filed a counterclaim to seek compliance with the safe harbor caps.

dbr-logo-300x57The trial court found that there were no genuine issues of material fact and U.S. Bank met the statutory requirements entitling it to the limited liability provisions provided by the safe harbor caps, so the court granted the bank’s motion for summary judgment.

In the subsequent appeal, the association contended that U.S. Bank did not satisfy the safe harbor statute, which requires the entity acquiring title to have also been the first mortgagee or its successor or assignee. The association interpreted “first mortgagee or its successor or assignees” as necessitating ownership of the loan.

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Nicole-Kurtz-2014-thumb-120x180-87971The firm’s Nicole R. Kurtz 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 “Disputed Condo Election Offers Important Lessons for Association Boards,” focused on a recent appellate ruling that illustrated the importance for boards of directors to act with a clear understanding of their capabilities to alter association election procedures.  Her article reads:

Allegations of questionable or even downright fraudulent tactics by candidates in annual association elections are not entirely uncommon. When suspicious activities begin to call into question the integrity of the election, some boards of directors hit the panic button and take actions that will not stand the test of their governing documents or the Florida Administrative Code.

Such appears to be what took place in a disputed election at the Palm Aire Country Club Condominium in Pompano Beach that culminated in a recent ruling by Florida’s Fourth District Court of Appeal. While the appellate panel’s opinion does not address the reasons for the association board’s actions, noting only that “there is some ambiguity as to what exactly occurred” at the board’s Feb. 29, 2016, meeting, the opinion essentially invalidates the board’s 6-3 vote at the meeting to postpone the annual election that was set for two days later on March 2.

Even though a majority of the board voted to postpone the election, it took place as originally scheduled on March 2, and new directors were elected. The management company for the property, M&M Property Management LLC, subsequently refused to recognize the authority of the prior board of directors and instead began working with the newly elected directors.

dbr-logo-thumb-400x76-51605-300x57In response, the prior board of directors filed suit against M&M seeking a temporary injunction to compel the management company to stop operating in service of the new board of directors. The prior board was granted the temporary injunction, and in turn M&M was ordered to recognize the board as it existed prior to the March 2 election.

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This year our firm is celebrating the 40th anniversary of its founding.  In 1977, Steven M. Siegfried had the vision to bring great lawyers and supporting staff together to focus on every aspect of Florida’s burgeoning construction, community association and real estate industries.

As Florida has grown, so too has SRHL.  Maintaining our focus, we are now 46 attorneys in our three South Florida offices.  As required by the evolution of the industries in which our clients excel, we have incorporated expertise in insurance, creditors’ rights, and the commercial transactions and disputes that relate to these core competencies.  We also have developed an expertise in aircraft transactional work.

As we reflect on our 40 years of service in these vital industries, we take pride in having played significant roles in some of the most important and challenging projects throughout South Florida and the nation.  We look forward to furthering our role as one of the most trusted sources for legal counsel and representation in these fields in the years to come.

 

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).