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The Florida Legislature made Covid-19 civil liability protections for businesses, healthcare providers, non-profits, and other organizations a major priority for the 2021 session, and on Monday, March 29, it became the year’s first bill signed into law by Gov. Ron DeSantis. SB 72, the bill that provides several Covid-related liability protections for businesses, healthcare providers, educational institutions, government entities, religious institutions, and not-for-profit corporations such as community associations, is now the law in Florida.

Under the new law, covered entities will be shielded from civil liability for Covid-related lawsuits for monetary damages, injuries or deaths so long as the allegations do not involve gross negligence or intentional misconduct.

Flalegislature-300x169As of March 29, Florida community associations that have implemented measures to safeguard their residents and staff from the potential spread of Covid-19 in their communities and comply with local, state and federal guidelines are protected from liability for Covid-related lawsuits.

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EvonneAndris-srhl-law-200x300An 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.

dbr-logo-300x57While 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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Community association collections of monthly dues and other monetary obligations from unit owners have been strained by the Covid-19 pandemic. Given that many families are now struggling with lost work and businesses, some associations have cut back on expenses wherever possible and carefully considered their collections options with debtor owners.

However, occasionally we learn of erroneous or overzealous community association collections efforts reported on local news outlets across the country, perpetuating a negative stereotype of associations being exorbitantly stringent.

One example of such a report appeared recently in the newscasts of WFTV Action 9 News (ABC) in Orlando and Central Florida. The station’s report chronicles how Mims, Fla. residents Cindy Decker and her husband were threatened with foreclosure by their HOA for a debt they claimed to not owe.

wftv-300x169“They put me through hell,” she says in the report.

The Deckers, who had raised six children in the home where they have lived for the last 26 years, say they fell behind on their association dues to the Lake Harney Woods Property Owners Association. They claimed that they eventually made good on their debt with the issuance of a check for $892 to cover everything they owed, but Cindy Decker said one month later the association filed a claim of lien against her home to collect the dues and fees that she had just paid.

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Steve-Siegfried-2013-srhl-lawIt 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.

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Amendments to the Florida Condominium Act enacted in 2018 provide that association board members may not serve more than eight consecutive years, unless they are elected by more than two-thirds of the voting membership or there are not enough eligible candidates to fill the board vacancies at the time of the election.

The initial guidance from the Florida Division of Condominiums, Timeshares and Mobile Homes under the Department of Business and Professional Regulation was unclear, but last summer it concluded that years of board service prior to the date that the law went into effect in July of 2018 did not count towards the eight years of consecutive service precluded by the new law.

dbprlogo-300x170Essentially, this means that only condo association board members who serve eight consecutive years starting in or after July 2018 will be disqualified from additional service unless the specific exemptions are met.  This clarification by the Division of Condominiums has helped to allay concerns by association boards with long-term members from prior to 2018, as those directors will have at least five more years of eligible service.

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MichaelHymanThe 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.

dbr-logo-300x57Apparently 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.

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Recent news reports chronicle the tale of a former Marco Island city council member who was charged with three counts of forgery of a ballot envelope and three counts of criminal use of personal identification information, which is third-degree felony, in his condominium association’s annual board of directors election.

The reports from the Naples Daily News and several Southwest Florida television stations indicate Victor Rios, 78, was charged with forging ballots for the Belize Condominium Association election to remain a board member. Several ballots for the property’s March 2019 condo election were cast under the names of residents who testified that they had not voted in the election, and their signatures on the outer ballot envelopes were forgeries.

FDLElogo-150x150Complaints alleging election fraud were filed with the state’s Division of Condominiums under the Department of Business and Professional Regulation, and with the Marco Island Police Department. MIPD subsequently asked the Florida Department of Law Enforcement to investigate the matter because Rios was a sitting city council member at the time.

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There are several bills being debated by state lawmakers in the current legislative session that will impact Florida community associations. The most significant proposed legislation for associations is also one of the most important for many of the state’s businesses.

HB 7, which creates COVID-19 liability protections for Florida businesses and nonprofit organizations, including community associations, has cleared its first committee stop with an 11 to 6 vote. Its advocates contend the measure is a necessary component to Florida’s economic recovery. Flalegislature-300x169The Florida House Speaker has vowed to make the bill a priority. Its next stop is the House Health and Human Services Committee.

One of the other measures that community association industry watchers are tracking is HB 21. House Bill 21 revises the requirements for construction defect causes of action relating to certain violations, and revises provisions relating to the requirements for notices of claim, property inspections, and service of copies of notices.

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With the Covid-19 vaccines now rolling out across the country, there is hope that in the coming months gatherings of individuals who have been inoculated could safely take place. In the meantime, many community associations are continuing to conduct virtual meetings with attendees participating online or via telephone conference.

However, various provisions of the laws governing Florida condominium and homeowner associations raise questions regarding whether such virtual meetings are being conducted in a manner that is in full compliance. For instance, applicable condominium laws stipulate that annual meetings of the unit owners for board member elections must be held at the location provided in an association’s governing documents or, if none is specified, within 45 miles of the condominium property. This leads to the question of whether purely virtual annual meetings comply with the law.

The unprecedented circumstances arising during the pandemic has therefore caused many community association managers and board members to become creative – seeking to achieve continuity of association business vis-a-vis director and member meetings while also seeking to balance the protections recommended by healthcare providers and health authorities. One example is that some associations, in an effort to ensure that a condominium’s virtual annual meeting complies with the law, have made arrangements for the board of directors’ meeting to convene physically on association property while allowing members to attend via Zoom or other platforms.

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GaryMars-200x300An 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.

dbr-logo-300x57The 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.

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