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Articles Posted in Governing Documents and Amendments

The Florida Marketable Record Title Act (MRTA) requires HOAs to reaffirm and renew their covenants and restrictions 30 years after they were originally recorded in the local county records.  MRTA was created to extinguish claims to property which are at least 30 years old in an effort to stabilize property law by clearing old defects from the chains of title to real property, limiting the period of record searches, and clearly defining marketability by extinguishing old interests of record.

One of the unintended consequences of the Act is that the declarations of covenants, conditions and restrictions recorded by HOAs may be set to expire after 30 years of the date in which they were recorded.  Keep in mind that for most HOAs, if the residents are no longer compelled to act in accordance with the community’s declaration, the results could be catastrophic for the associations’ administration and finances.

Flalegislature-300x169The Florida legislature passed a law earlier this year to update the process for HOAs to renew and preserve their covenants and restrictions under MRTA in order to keep them in place after the 30-year term.  Under the new law, which is now in effect, at any time during the 30-year period following the effective date of the title for the covenants and restrictions of a community association, the association may preserve and protect those covenants or restrictions from extinguishment by following more simplified filing procedures which include the following:

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Many associations’ governing documents include clauses that prohibit commercial business activities from being conducted in a resident’s unit.  Some include a blanket stipulation banning commercial activity altogether, while others make a distinction between permissible and impermissible activities.  While it makes sense for associations to want to regulate and restrict businesses from operating within their communities, HOAs and condominium associations should take a prudent approach that is guided by reason.

When considering how to regulate and enforce restrictions against commercial activities, associations should focus on the impact that particular activities have on the community and the quality of life of those who make it their home.  Today’s technology allows for a great deal of work to be done from home with no disruptions whatsoever to the community at large.  homework-300x200Rather than attempting to ban all commercial activities in a community, the better option is to specifically delineate in the governing documents the types of activities that are not allowed.

Some of the activities that communities wish to ban are those that entail significant vehicular traffic, including from clients as well as vendors and delivery vehicles.  Continue reading

For many condominium associations in Florida, the amount of board members serving on a board of directors is usually dictated by the association’s governing documents or bylaws. There are associations, however, whose documents are silent on the number of directors that can be elected. In the absence of such a provision, condominium associations would have to refer to Chapter 718, Florida Statutes, which provides that a board of administration of a condominium shall be composed of five members.  For those bylaws that do include language with specifications regarding a board’s size, the average number of board members serving typically ranges from three to five board members. But is there an ideal size?

While there is no “right” size for a board of directors, community associations that are considering decreasing or increasing their existing board’s size should always evaluate the pros and cons of doing so. It is possible for a board to be either too big or too small. Continue reading

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, 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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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.

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.

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: