An article authored by firm shareholder Maryvel De Castro Valdes is featured as the “Board of Contributors” 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 Proves Community Associations Need to Revise Own Governing Documents,” focuses on a recent ruling by Florida’s Third District Court of Appeal that added to the growing string of decisions in recent years illustrating how an old and outdated provision in HOA and condominium association declarations is preventing some communities from collecting what they would be owed under the current state law from purchasers in foreclosure actions. Her article reads:
. . . The ruling came in the case of Old Cutler Lakes by the Bay Community Association v. SRP SUB, LLC. The LLC took title to a unit within the community via a mortgage foreclosure auction and subsequently filed an action for declaratory relief seeking to determine its liability for the association assessments that accrued prior to acquiring title.
While Florida law holds that a parcel owner is jointly and severally liable with the previous owner for all unpaid assessments that came due up to the time of transfer of title, including by purchase at a foreclosure sale, the LLC was apparently well aware that the association’s declaration contained a provision that essentially extinguished its liability for the past-due assessments owed by the previous owner.
An article authored by firm shareholder Roberto C. Blanch was featured as the HOA View expert guest commentary column in the Business Monday section of today’s Miami Herald. The article, which is titled “HOAs, Condo Boards Should Brace for a Slowdown in Dues and Tread Carefully,” focuses on the strategies that community associations should deploy in response to the financial strains created by unit owners who become unable to pay their monthly dues. His article reads:
. . . As they begin to consider their options, some associations are now giving thought to relaxing their collections by waiving late fees and interest on delinquencies, and perhaps also foregoing entire monthly payments for those who become unable to pay due to the economic standstill. While this may appear to be a reasonable response, association directors must not lose sight of the fact that they are fiduciarily obligated to pursue the uniform collection of all payments and delinquencies, so they may be limited in their ability to offer any special considerations or concessions for those experiencing financial difficulties.
Payment waivers for the economic casualties of the COVID-19 pandemic could also open the door to future requests by unit owners for similar concessions related to other financial setbacks.
Instead, associations could borrow a page from the playbook of previous economic downturns and consider sanctioning a uniform payment plan to assist owners who become delinquent. With the help of qualified legal counsel and financial professionals, they could create a payment plan that is uniformly available to assist all the unit owners who suddenly become unemployed.
Our firm’s founder and managing partner, Steven M. Siegfried was awarded the 2020 Lifetime Achievement Award by the Construction Law Committee of The Florida Bar. The award, which he received at the group’s annual awards reception in Orlando on Friday, March 6 (see photo below), recognizes one Florida construction law practitioner per year for their lifetime of exemplary dedication and mentoring, and their commitment to maintaining the very highest level of professional reputation and integrity.
Steven has focused on construction law in Florida since 1976. He has served as an adjunct professor of construction law at the University of Miami since 1984, and he has also conducted many seminars and presentations for construction law practitioners throughout Florida during his entire career. He is board certified by The Florida Bar as both a civil trial and construction law, having earned both designations in their year of inception from the state’s bar association. Steven is also a founding Fellow of the American College of Construction Lawyers, and he is the author of Florida Construction Law and The Florida Construction Lien Law, An Overview. He earned his undergraduate degree from Brooklyn College in 1971 and his law degree from American University, Washington College of Law in 1974.
All of the attorneys and professionals at our firm are very proud of the impact that our founder has had in teaching a generation of attorneys about the intricacies of construction law at the University of Miami while helping to build one of the state’s most respected practices in the field. We congratulate Steven and salute him for receiving this prestigious recognition from his peers in The Florida Bar’s Construction Law Committee.
Firm shareholder Georg Ketelhohn is quoted in an article in today’s Daily Business Review discussing the firm’s efforts on behalf of the condominium association for the 537-unit Midtown Doral in its construction defect lawsuit against the community’s developer, builders and design professionals. The firm’s suit, which was filed in December, alleges defects including leaky plumbing with erratic water pressure, rooftop pools of rainwater on the roof, and exposed rebar in cracked concrete.
Located at Northwest 107th Avenue and 74th Street, Midtown Doral was completed in 2016 with four eight-story condo buildings and 70,000 square feet of retail space.
The firm’s lawsuit on behalf of the association is against general contractor Delant Construction Co. in Miami, architectural firm Pascual, Perez, Kiliddjian & Associates in Doral, and MD Residential II LLC, an affiliate used by the development partnership. The suit alleges breach of implied warranties against the developer and general contractor as well as a professional negligence count against the architect.
The firm’s Michael L. Hyman authored an article that was featured as the “Board of Contributors” 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 “Owner Who Sells During Foreclosure Litigation Still Entitled to Legal Fees,” focuses on a recent case illustrating how associations can become liable for the attorney fees and costs of unit owners who prevail in foreclosure actions for past-due assessments even if the owners sell their unit during the pendency of the litigation. His article reads:
. . . In Victor Tison v. Clairmont Condominium F Association, the Fourth District Court of Appeal reversed the lower court’s final order denying Tison’s motion for attorney fees and costs. The appellate panel found that as the prevailing party in a lawsuit brought against him by his condominium association for unpaid assessments, Tison was indeed entitled to recover prevailing party attorney fees even though he sold his interest in the condominium unit during the pendency of the foreclosure action.
The case began in December 2015 when the association filed a lawsuit against Tison and another defendant seeking to foreclose on an assessment lien against their residence and recover damages for unpaid assessments. The defendants responded by filing an answer with affirmative defenses, which they later amended, and they alleged that they would be entitled to recover attorney fees and costs.
More than a year later in March 2017, the trial court denied the association’s motion for summary judgment, and the defendants sold the residence. Another entire year after that, the trial court entered a final order dismissing the action for lack of prosecution.
Firm shareholder Marc A. Smiley authored an article that was featured as the “Board of Contributors” 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 “Association Protected by Business Judgment Rule Against Disgruntled, Litigious Homeowner,” discusses how the enforcement of restrictions against property improvements that are in violation of association covenants can become very contentious in single-family home communities. It notes most of these disputes are between a homeowner seeking approval for alterations and their association’s architectural review committee, but some of the cases stem from third-party unit owners who become dissatisfied with their association’s decisions. His article reads:
A recent ruling by Florida’s Fourth District Court of Appeal involved just such a dispute brought by a homeowner who was disappointed with his association’s approval of a neighbor’s new garage. In Miller v. Homeland Property Owners Association, the appellate panel affirmed the lower court’s partial final summary judgment in favor of a homeowner that had secured the association’s prior approval and built the garage on his property.
The Fourth DCA only addressed whether disputed issues of material fact precluded the entry of summary judgment and the proper application of the business judgment rule. Owners in the community of Homeland Property Owners Association are required to obtain approval of their plans by the association’s architectural review board prior to commencing any work. Restrictions that are in place in the community include a maximum building height of 32 feet and a prohibition against flat roofs.
Firm shareholders Helio De La Torre and Lindsey Thurswell Lehr, together with associate Berenice M. Mottin-Berger, have worked for more than four years in representing the BrickellHouse Condominium Association in litigation over the property’s failed robotic parking garage. Their work yielded a truly exceptional result last week when a Miami-Dade Circuit Court jury awarded the association $40,590,990 in damages against BrickellHouse Holding LLC, the developer of the 46-story tower in Miami’s Brickell area, and many of South Florida’s most respected media organizations took notice. The verdict yielded major articles this week in the Miami Herald, Daily Business Review, South Florida Business Journal, The Real Deal and Law 360 about the trial team’s success in demonstrating to the jury that the developer, a subsidiary of Newgard Development Group, breached statutory warranties owed to the association and its unit owners.
“The association has been left without parking for its residents in the promised 480 vehicle garage since November 2015,” explained De La Torre to reporters after the verdict. “Since that date, residents have been parking offsite and incurring increased costs due to the failed robotic parking system sold by the developer. The board of directors and a team of consultants have worked very hard to find a solution for the garage and bring the owners the justice they deserve.”
Thurswell Lehr concluded:
“As a result of the verdict, the condominium association will now be able to move forward with the replacement of the garage in order to restore the parking for the building that the owners and residents deserve.”
BrickellHouse is located at 1300 Brickell Bay Drive and features 374 residences. The 46-story tower was one of the first post-recession condo buildings constructed in the Brickell area. After its completion in October 2014, the problems with the 480-space robotic parking system were immediately apparent. The developer retained control of the condominium association through September 2015, and the robotic parking system was completely shut down in November 2015.
Below is a video depicting how the garage was designed to use a fleet of autonomous robots that move beneath the vehicles to lift and move them throughout the building and elevators. Click here to read the Miami Herald article in the newspaper’s website, click here for the Daily Business Review article (registration required) and click here for The Real Deal.
Firm shareholder Laura Manning-Hudson authored an article that was featured as the 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 “HOA Dispute Over Backyard Playset, Other Amenities Snowballs Into Federal Lawsuit,” discusses an HOA’s dispute over the installation of a backyard playset, spa pool, barbecue and other amenities in a Georgia community that has escalated into a federal lawsuit alleging violations of the Fair Housing Act due to discriminatory housing practices. Laura’s article reads:
. . . As was chronicled in a recent article in the Gainesville Times newspaper, Martin Moreira and his wife Zulema filed suit against the Pointe West Homeowner’s Association after their plans for a backyard makeover were nixed by the association. They filed the discrimination complaint in federal court in April after the HOA had issued fines and placed a lien against their home in the community located in Oakwood, in northern Georgia.
The dispute arose in the spring 2017 when the Moreiras submitted plans to the HOA to install a play area for their grandchildren as well as a barbecue, spa pool, fireplace, gazebo and other amenities in their backyard. The architectural control committee for the association rejected the project and requested additional information on several items for continued consideration.
The committee continued to reject the project after the supplemental information was submitted, but the complaint alleges that its members then went further than ever before. It states: “In deviation from established practice, ACC members went to the Hall County Building Department and demanded all information regarding Moreira’s application. Hall County Building Department staff later confided with Moreira’s architect, Jack Bailey, that ACC members were looking for something to kill the project.”
The firm’s Susan C. Odess authored an article that appeared as the featured 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 “Court Opens Citizens Property Insurance to Claims for Consequential Damages,” focuses on a recent precedent-setting ruling with a certified question to the Florida Supreme Court by the state’s Fifth District Court of Appeal. Her article reads:
. . . The appellate panel overturned the trial court’s decision and remanded the case back to the lower court for hearings on whether the claimant is entitled to consequential damages for lost rental income caused by the insurer’s delays and denials.
The case began with an insurance claim by Manor House with Citizens Property Insurance Corp., which accepted responsibility for the loss and paid $1.93 million. The property owner later reopened the claim seeking $10 million, and the insurer subsequently made additional payments for approximately $345,000. However, Citizens’ adjuster estimated the actual cash value and replacement cost value of the policyholder’s loss to be in the $5.5 to $6.5 million range.
The property owner eventually sued in 2007 seeking prompt payment of the allegedly undisputed amount of $6.4 million and asking the court to compel Citizens to engage in the appraisal procedures called for under the policy.
The firm’s Nicole R. Kurtz authored an article that was featured as the 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 “New Laws Spurring Florida Community Associations to Implement E-Voting, Websites,” focuses on the recent changes in state law allowing community associations to implement electronic voting and requiring condominium associations with 150 units or more to have a website containing digital copies of certain official records. Her article reads:
. . . The condominium association website laws mandate that compliant websites should have been operational as of Jan. 1 of this year. The laws call for association websites that are accessible only to unit owners and employees where certain notices, records and documents are posted. These must include the declaration of condominium, bylaws, articles of incorporation, rules and regulations of the association, as well as all executory contracts or documents to which the association is a party, or under which the association or unit owners have an obligation or responsibility.
Condominium association websites must also feature the association’s annual budget and proposed annual budget; financial reports; monthly income or expense statements; copies of bids, or summaries of bids, exceeding $500; association meeting notices, and board member certification forms.
Florida HOA Lawyer Blog
An article authored by firm shareholder Maryvel De Castro Valdes is featured as the “Board of Contributors” 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 Proves Community Associations Need to Revise Own Governing Documents,” focuses on a recent ruling by Florida’s Third District Court of Appeal that added to the growing string of decisions in recent years illustrating how an old and outdated provision in HOA and condominium association declarations is preventing some communities from collecting what they would be owed under the current state law from purchasers in foreclosure actions. Her article reads:While Florida law holds that a parcel owner is jointly and severally liable with the previous owner for all unpaid assessments that came due up to the time of transfer of title, including by purchase at a foreclosure sale, the LLC was apparently well aware that the association’s declaration contained a provision that essentially extinguished its liability for the past-due assessments owed by the previous owner.
