Articles Posted in Governing Documents and Amendments

LindseyTLehr-thumb-200x300-94705Helio De La Torre 2013The firm’s Helio De La Torre and Lindsey Thurswell Lehr were interviewed during the last few days by reporters from the Daily Business Review, South Florida’s exclusive business daily and official court newspaper, and The Real Deal, one of South Florida’s leading sources for real estate news and analysis.  They were asked by the journalists for their insights into the ramifications of a decision last week by the Third District Court of Appeal that has significant implications for the future of condominium terminations in Florida.

The case pitted the Tropicana Condominium Association against the developer of the neighboring Ritz-Carlton Residences in Sunny Isles Beach.  The appellate court ruled in favor of the developer, which had ties with a group of five unit owners at the Tropicana, finding that the property’s bylaws required unanimous approval for a sale, despite the 80 percent threshold in the amended condominium termination legislation from 2007.  It agreed that the five holdouts’ refusal to sell was enough to block the termination that was favored by the association because the property’s 1983 governing documents predate the legislative amendment and require all unit owners to approve termination.

The Third DCA ruled that the 2007 changes to the Florida statute don’t apply retroactively to condominium declarations from prior to 2007 unless they contain certain language that incorporates amendments to the state’s Condominium Act.

The appellate court said in its ruling that “when referencing Florida’s Condominium Act, the declaration [for Tropicana] did not contain the words ‘as amended from time to time.’ Absent this language in the declaration, changes by the legislature to the Condominium Act subsequent to the effective date of the declaration do not become part of the declaration automatically.”

TRDlogoAs Helio explains in the article from The Real Deal that appeared on Nov. 18:

“The statute seemingly had language that suggested the intent was to make it retroactive,” said law firm partner Helio De La Torre, who has represented condo associations in similar cases centering on termination of associations through votes by unit owners. He is a partner of Coral Gables-based Siegfried, Rivera, Hyman, Lerner, De La Torre, Mars & Sobel, P.A.

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Every four years, as presidential elections heat up, condominium and homeowners association communities throughout Florida are faced with the issue of political signs being posted in front yards, on balconies, in windows and on and around the common areas.  Association attorneys are often consulted, and most would advise associations to be extremely careful with how they create and enforce restrictions that prohibit political expression.

Most associations’ governing documents include restrictions that prohibit residents from posting signs anywhere on the unit or the property.  Political signs, however, give rise to issues of freedom of speech, which is protected by the First Amendment.

The key for associations to remember is that restrictions on freedom of speech under the First Amendment apply only in governmental or public settings, so community associations, as private non-governmental entities, are allowed to restrict signage, including political signs, in accordance with their corresponding state law.  Some states have enacted legislation specifically addressing the issue, but Florida has not and neither has the state’s Supreme Court addressed the issue specifically.

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As a result, Florida’s associations are able to enact and/or enforce rules and restrictions governing the display of political signs by their members, but they are cautioned to do so very judiciously and under the watchful guidance of highly experienced association legal counsel.

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Roberto C. Blanch

Roberto C. Blanch

Firm Partner Roberto C. Blanch wrote an article that appeared in today’s edition of the Daily Business Review, South Florida’s exclusive business daily and official court newspaper, about the implications for Florida condominium associations of the recent ruling by the Second District Court of Appeal in the case of The Retreat at Port of the Islands LLC v. Port of The Islands Resort Hotel Condominium Association.  His article reads:

The acquisition of condominium units by investors, including bulk-buyer unit purchasers, has served a critical role in the recovery of the South Florida real estate market. These concerns acquired scores of units at condominium developments during the height of the foreclosure crisis and enabled the associations of many distressed developments to regain their financial footing.

Most of these units were purchased by legal entities, including corporations and limited liability companies, comprised of various shareholders, members, directors and officers. As the recovery of the housing market continues, South Florida’s condominium associations should take a close look at their bylaws and other governing documents regarding the ability of these legal entities to take a majority voting control of their boards of directors.

A recent ruling by the Florida Second District Court of Appeal has clarified that a clause which is commonly found in many condominium association bylaws enables representatives of entity-owned units to have multiple individuals serve as members of the board of directors. In the case of The Retreat at Port of the Islands LLC v. Port of The Islands Resort Hotel Condominium Association, Retreat appealed the circuit court’s summary judgment in favor of the condominium association. The lower court interpreted a provision in the association’s bylaws to limit Retreat’s representation on the association board to one of its representatives, regardless of the number of units that it owned in the property.

His article concludes:

In its reversal of the trial court’s opinion, the appellate panel found that the section of the association’s bylaws in question was devoid of language limiting the number of Retreat’s managing members who may serve as directors, as it was clearly addressing the class of individuals who are qualified to represent a unit owner’s interests on the board rather than the number. The court also noted that the bylaws allow co-owners of a unit to occupy multiple seats on the board if they own more than one unit, so the association already allows for owners of multiple units to occupy multiple seats on the board.

Some condominium association members have traditionally been wary of having one group of owners with shared interests control a majority of their board of directors, arguing that it can be a recipe for problems such as creating favoritism in the board’s decisions and awarding of vendor contracts, as well as facilitating fraud and embezzlement of association funds.

In light of this ruling, association members who wish to restrict entity-owned units, including bulk unit-owners, from having representatives hold multiple board seats and take a majority voting control of their condominium association board of directors should consult with qualified legal counsel to evaluate whether their association’s bylaws and other governing documents should be amended.

Our firm congratulates Roberto for sharing his insights into the implications of this ruling for Florida condominium associations with the readers of the Daily Business Review.

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In Florida, not all foreclosure cases are the same for the state’s more than 47,000 community associations, as a recent ruling by the Fourth District Court of Appeal illustrated.  The ruling serves as a reminder that community associations must look to their own declaration and governing documents in cases involving the foreclosure of mortgages.

The ruling reversed the lower court’s decision and found that a lien by the homeowners association for the Pipers Landing community in Palm City, Florida, did not have priority over a mortgage issued by U.S. Bank. The appellate panel based its decision on the fact that the HOA’s declaration did not include the necessary language specifying that its liens take priority over mortgage liens and relate back to the date of the filing of the community’s declaration.

4dcaThe Fourth DCA based its opinion on the ruling by the Supreme Court of Florida in Holly Lake Association v. Federal National Mortgage Association in 1995. That ruling held that “in order for a claim of lien recorded pursuant to a declaration of covenants to have priority over an intervening recorded mortgage, the declaration must contain specific language indicating that the lien relates back to the date of the filing of the declaration or that it otherwise takes priority over intervening mortgages.”

Because Pipers Landing’s declaration did not contain any such language giving the association’s lien priority over that of the lender, the appellate panel reversed the lower court’s ruling.

Obviously, this ruling deals a blow to associations that may wish to attempt to assert lien priority in cases involving the foreclosure of older mortgages.

However, the ruling does serve as an important reminder for associations and their legal counsel to double-check the language in an association’s governing documents for cases involving the foreclosure of mortgages, as it is possible that the declaration may contain the necessary language as required by the Holly Lake ruling for the lien to be found to be superior over the lender’s mortgage lien.

For condominium associations and HOAs, effective governing documents are essential for their successful management and financial wellbeing. Association boards should regularly review their governing documents and bylaws to ensure their continued functionality and eliminate provisions that may have become archaic.

Deciding whether the documents and bylaws need to be amended can be difficult, and ratifying new amendments with the approval of the membership often presents significant challenges. Most governing documents include voting requirements for amendments stipulating that they must be approved by super majorities of two-thirds or three-fourths of the membership.

One of the best approaches for associations to take in reviewing and updating of their governing documents is for the board of directors to appoint a revision committee for the documents. The committee, which should work together with the association attorney, should review all of the bylaws and develop suggested changes as necessary.

Some of the most common provisions of the association documents which may benefit from updates include those pertaining to voting, collections, leasing and fining procedures. Many associations are implementing amendments to limit voting rights to members who are not delinquent in their financial obligations to the association, and some are addressing recent statutory amendments authorizing electronic voting. Other associations are incorporating amendments to maximize their ability to recover attorney’s fees incurred for collection efforts, ban short-term rentals using websites such as Airbnb and other online listing services, strengthen their ability to fine members who refuse to comply with the community’s rules, and address rules involving pets and the use of the community’s amenities by members who are in arrears to the association.

Once the committee has identified changes to the bylaws that it would like to propose, they should present them to the board of directors. If the board approves, the committee should then work on drafting the amendments with the association’s legal counsel to ensure their enforceability and the likelihood of their adoption.

Before the proposed amendments are put to the membership for a vote, they should be presented and discussed with the members during the association’s monthly meetings or in special meetings that are called expressly for the purpose of proposing and considering the changes.

In order to facilitate the adoption of proposed amendments, they should be scheduled for votes at times during which higher voter turnout is expected, such as during the annual meeting. The text of the proposed amendments should be included in the delivery of notice for the meeting and its agenda, and the use of limited proxies should be considered for those who cannot attend the meeting in person.

While the process for changing a community association’s governing documents can be difficult and tedious, it is unwise for associations to ignore outdated provisions in their bylaws or avoid implementing important changes that can provide significant benefits.

MichaelHyman.jpgThe firm’s Michael L. Hyman wrote an article that appeared in today’s edition of the Daily Business Review, South Florida’s only business daily and official court newspaper, about the recent decision by the First District Court of Appeal in the case of Silver Shells v. St. Maarten at Silver Shells Condominium Association. His article reads:

The First DCA’s decision in the case of Silver Shells v. St. Maarten at Silver Shells Condominium Association stems from a lawsuit by the Destin condominium association for one of the towers in a multi-building property against the developer.

The suit sought to require the developer to turn over control of the master association to the unit owners and convey a “beach property” that was initially included in the common properties which it was required to convey to the master association at the time of turnover.

The appellate court found that the association’s claim that the developer improperly amended restrictive covenants to effectively remove the beach property in question from the common properties is barred by the statute of limitations.

The opinion held that the five-year limitations period began to run when the association for the building was turned over to the unit owners, and the association’s action had not been filed within five years of that date.

Michael’s article concludes:

The takeaway from this ruling for this condominium association as well as other new condo associations in similar master-association communities is that the clock starts ticking on their limitations period to challenge any of the developer’s actions on the date in which their building’s association is turned over by the developer to the unit owners.

The developer will continue to have the “power of the pen” to implement any amendments that it sees fit to the covenants for the master association while it maintains control during the build out of the community, so it is incumbent on the associations for the individual towers that have already been turned over to the unit owners to maintain a careful eye on all of the developer’s amendments and, when necessary, challenge them before their limitation periods expire.

In this case, the association’s challenge to the developer’s amendment that enabled it to retain ownership of the beach property, which apparently included a lucrative ongoing revenue stream for the rental of beach chairs and umbrellas, may have prevailed had it been filed before the five-year limitations period had expired.

Our firm congratulates Michael for sharing his insight on this new appellate decision with the readers of the Daily Business Review. Click here to read his complete article in the newspaper’s website (registration required).

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