Firm News

May 24, 2021

Article by Lindsey Thurswell Lehr and Berenice Mottin-Berger in Today’s Daily Business Review: “Buyers at New S. Fla. Communities Must Diligently Protect Interests During, Post-Turnover”

by Siegfried Rivera

Siegfried Rivera

An 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.

As 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.

May 11, 2021

Article by Michael Toback in Today’s Daily Business Review: “Ruling Illustrates Perils in Foreclosures of Noncompliance With Documents, Miscalculating Claim of Lien”

by Siegfried Rivera

Siegfried Rivera

An 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.

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.

March 24, 2021

Article by Evonne Andris in Today’s Daily Business Review: “Considerations for Community Associations Reopening Their Amenities”

by Siegfried Rivera

Siegfried Rivera

An article authored by firm partner Evonne Andris was 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 “Considerations for Community Associations Reopening Their Amenities,” notes that community associations have generally done an admirable job of implementing and maintaining measures aimed at preventing the spread of COVID-19 among their residents and staff. Evonne writes that with the new vaccines rolling out across the country and the entire world, associations are now reassessing their options regarding the use of their amenities. Her article reads:

. . .While the vaccines hold the promise of moving toward herd immunity, that remains to be months away based on the expected supply and vaccination levels. Also, it remains unclear whether vaccinated individuals may be able to become carriers and spreaders, so masking and social distancing are likely to remain the generally accepted protocols for anywhere people congregate and interact.

Therefore, for the time being, community associations would be well advised to remember that most insurance policies do not cover virus-related claims, and there is currently no federal or state law that shields associations from litigation for alleged on-site virus infections.

While infection-based litigation is a greater concern for businesses in the health care sector, Florida lawmakers are now considering a bill that would create COVID-19 liability protections for the state’s businesses and nonprofit organizations, including community associations. The proposed bill (House Bill 7) provides several COVID-related liability protections for businesses, educational institutions, government entities, religious organizations and other entities.

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March 15, 2021

A Message from the Managing Partner: One Year Post COVID-19 Closures

by Siegfried Rivera

Siegfried Rivera

It is hard to believe that we are officially one year into the COVID-19 pandemic. As the entire world continues to battle the virus and adjusts to the daily changes in protocol and restrictions, our firm remains fully operational, staying up-to-date with the latest news and making decisions based on those developments.

With our staff’s, clients’, and families’ health and safety remaining of utmost importance, our firm continues to operate with a majority of our attorneys and support staff working remotely. We are happy to say that we have all remained safe during this time and the initial closures never caused any interruptions or delays in service. We have also pivoted in the way we serve our clients by upgrading our network’s infrastructure and making improvements to how we conduct business, such as enhancing our data security and offering digital document signature options as well as online notaries. Though we’ve all had to overcome our own set of challenges, we have conquered them together and have only become stronger.

February 24, 2021

Article by Michael Hyman in Today’s Daily Business Review: “Ruling: Community Associations Can Take Owners to Court Without Completing Arbitration”

by Siegfried Rivera

Siegfried Rivera

The 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.

Apparently 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.

January 26, 2021

Article by Gary Mars in Today’s Daily Business Review: “Questions Revealed by Ruling Over W Hotel Amenities Require Legislative Fix”

by Siegfried Rivera

Siegfried Rivera

An article authored by the firm’s Gary M. Mars was 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 “Questions Revealed by Ruling Over W Hotel Amenities Require Legislative Fix,” focuses on a recent ruling by the state’s Third District Court of Appeal that calls into question the legal framework for many Florida condo-hotels. The appellate panel ruled in favor of an Icon Brickell condominium owner’s claim that the property’s declaration broke state law by giving ownership and control of shared facilities to the owner of the W Miami Hotel. Gary writes that the decision signals the need for Florida’s lawmakers to consider legislative amendments to the state’s condominium laws specifically addressing the authority over common elements at condo-hotel properties. His article reads:

. . . The 50-story Icon Brickell Tower 3 includes the 148-room W Miami, formerly the Viceroy Hotel, in addition to 372 condominium residences. New Media Consulting LLC, the owner of one of the units in the building, filed suit in Miami-Dade Circuit Court in 2018 against the building’s condo association alleging the property’s declaration of condominium gave the owner of the W Miami Hotel too much authority in violation of the Florida Condominium Act.

The plaintiff prevailed in the trial court via a summary judgment, which concurred that parts of the property’s declaration broke state law by giving ownership and control of the shared facilities to the hotel owner. The ruling essentially ordered the association to amend its declaration in accordance with state law, notwithstanding the fact that changing condominiums’ governing documents typically requires prior approval by a daunting super majority (usually 2/3 or more) of associations’ entire voting membership.

December 10, 2020

Article by Michael Hyman in Today’s Daily Business Review: “Injunction Petition Against Ornery Condo Resident Sends Important Message”

by Siegfried Rivera

Siegfried Rivera

An article authored by the firm’s Michael L. Hyman was 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 “Injunction Petition Against Ornery Condo Resident Sends Important Message,” focuses on a recent petition for an injunction stemming from pre-pandemic confrontations between a current and a former community association board member. Michael writes that the case illustrates how associations and their directors should proactively address bellicose residents. His article reads:

. . . The initial incident that led to the petition for the injunction, which was granted by the circuit court but eventually overturned on appeal, took place at a Broward County condominium in December 2018. That was when Patrick Gagnon, a member of the community’s board of directors, was accosted by prior board member Joseph Cash. A second incident later in the same month involved Cash allegedly yelling at Gagnon, calling him a liar and cursing at him.

Two months later in February 2019, Gagnon alleged that Cash confronted him two times, 45 minutes apart, yelling and cursing about new trees installed by the association that blocked the view from his condominium.

November 30, 2020

Article by Jeffrey Berlowitz in Today’s Miami Herald: “Community Associations Must Cope with a Coming Wave of Unit-Owner Bankruptcies”

by Siegfried Rivera

Siegfried Rivera

An article by firm shareholder Jeffrey S. Berlowitz was featured as the expert guest commentary column in the Business Monday section of today’s Miami Herald. The article, which is titled “Community Associations Must Cope with a Coming Wave of Unit-Owner Bankruptcies,” focuses on how associations must be prepared to contend with an expected spike in bankruptcy filings by those who lost their jobs and businesses due to the pandemic. His article reads:

. . . Even with the massive COVID-19 economic fallout, bankruptcy filings in 2020 so far trail those from last year, thanks in large part to the federal stimulus package and state moratoriums on foreclosures and evictions. The additional $600 per week in supplemental unemployment assistance, on top of the national average state unemployment benefit of $340/week ($275 per week maximum for up to 12 weeks in Florida), meant that many individuals who lost their jobs were suddenly receiving more money than when they were working.

This supplemental federal benefit expired in July and was replaced by an allocation from the Federal Emergency Management Agency for $300 or $400 per week, depending on states’ participation and contributions, which was paid retroactively from August 1 for up to six weeks. With no more federal aid apparently forthcoming, economists predict consumer bankruptcy filings are bound to rise.

November 16, 2020

Article by Nicole Kurtz in Today’s Daily Business Review: “Recent Arrests for Community Association Theft Illustrate Laws Working, Associations Must Do Their Part”

by Siegfried Rivera

Siegfried Rivera

An article authored by the firm’s Nicole R. Kurtz 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 “Recent Arrests for Community Association Theft Illustrate Laws Working, Associations Must Do Their Part,” focuses on several recent incidents of embezzlement at Florida community associations, and it discusses the impact of the 2017 changes to the Florida laws to add teeth to condominium fraud and enforcement measures. Her article reads:

. . . In Kissimmee, Florida, the second arrest of a former HOA property manager was covered as part of a series of investigative reports by WFTV (Channel 9, ABC). The reports chronicle how Sherry Raposo, who had previously been arrested on charges related to having her ex-cop-turned-felon boyfriend patrol the Turnberry Reserve community and using the HOA’s funds to bail him out of jail in North Carolina, was arrested yet again on new charges of fraud involving the accounts she oversaw while serving as a property manager for the community. The station also uncovered similar allegations of embezzlement against her from a different community in Seminole County, leading to the possibility of another investigation into Raposo and thousands of dollars that were moved from that HOA’s bank account.

Theft by a former property manager at the tony Parkshore Plaza condominium tower in downtown St. Petersburg also made headlines recently in the pages of the Tampa Bay Times daily newspaper. The report indicated that Abby Elliott was found guilty and had been sentenced to two years in prison for using the condo association’s funds to pay for vacations, airfares, salon treatments and other personal expenses.

October 13, 2020

Article by Laura Manning-Hudson in Today’s Daily Business Review: Signs, Signs, Everywhere a Sign: It’s Time for Community Associations to Address Sign Policies

by Siegfried Rivera

Siegfried Rivera

An article by firm partner Laura Manning-Hudson 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 “Signs, Signs Everywhere: It’s Time for Community Associations to Address Sign Policies,” discusses recent news reports from around the country that are indicative of an uptick in disputes within HOA communities involving homeowners’ yard signs. Laura writes that today’s polarized political environment and social movements combined with widespread societal cabin fever caused by the pandemic have seemingly created a perfect storm for tempers to ignite over political and solidarity signs, and she offers helpful suggestions for how HOAs should respond. Her article reads:

. . . In Macomb Township, Michigan, a couple has been quoted in a local TV report alleging they were singled out by their HOA to remove their Black Lives Matter signs while the association seemingly permitted their neighbors to post other similar signs supporting politicians and local schools.

Reports involving HOA disputes over BLM signs also made local TV and newspaper headlines in late July in the San Francisco bay area and New Albany, Ohio, where an HOA issued an apology to its residents after it posted a deadline for the specific removal of BLM yard signs on its social media pages.

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