Author: Gerstin

Looming ADA Rules Could Affect Millions of Websites

Posted on by Gerstin

ada-website

As many small business property owners will attest, the ADA is a brutal and often times unfair law. Property owners that do not comply with the ADA are not entitled to any advanced notice prior to being sued.  Although important to promote access for the disabled, often times the ADA is exploited by a person that either has never actually visited the premises or visited the premises solely for litigation purposes.  This same heavy handedness is coming to websites and whether they are accessible to the disabled.  Property owners such as hotels and hospitality websites will be the first front which will soon be expanded to almost every website.

For more information, and how to check to see if your website is ADA compliant go to: http://www.sun-sentinel.com/business/small-business/fl-ada-website-accessibility-suits-20150623-story.html#page=2  

Please contact our office to assist your business with all of its legal technology needs, including the issue of ADA compliant websites.

U.S. Supreme Court Bankruptcy Ruling Will Help Florida Community Associations

Posted on by Gerstin

In Bankruptcy, community association liens are often times “stripped off” if the home is worth less than the amount of the mortgages that are securing it. The United States Supreme Court put an end to that practice as it relates to second mortgages which presumably would also apply to community association liens. Full article here

Florida Supreme Court Issues Ruling Regarding Property Managers

Posted on by Gerstin

Charged with administering Florida’s laws regarding the Unauthorized Practice of Law, the Florida Supreme Court recently issued an opinion stating the following tasks must be performed by an attorney:

• draft a claim of lien and satisfaction of claim of lien;

• prepare a notice of commencement;

• determine the timing, method and form of giving notices of meetings;

• determine the votes necessary for certain actions by community associations;

• address questions asking for the application of a statute or rule;

• advise community associations whether a course of action is authorized by statute or rule;

• prepare a certificate of assessments due once a delinquent account is turned over to the association’s lawyer;

• prepare a certificate of assessments due once a foreclosure against the unit has commenced;

• prepare a certificate of assessments due once a member disputes in writing the amount owed;

• draft amendments (and certificates of amendment that are recorded in the official records) to declaration of covenants, bylaws and articles of incorporation when members have to vote on these documents;

• determine the number of days to be provided for statutory notice;

• modify limited-proxy forms promulgated by the state;

• prepare documents concerning the right of the association to approve new prospective owners;

• determine affirmative votes needed to pass a proposition or amendment to recorded documents;

• determine the number of owners’ votes needed to establish a quorum;

• draft pre-arbitration demand letters;

• prepare construction lien documents;

• prepare, review, draft and have substantial involvement in the preparation and execution of contracts, including construction, management and cable television contracts;

• identify, through the review of title instruments, the owners to receive pre-lien letters; and

• oversee any activity that requires statutory or case law analysis to reach a legal conclusion.

Full opinion available here sc13-889 .

 

 

New Proposed Federal Regulation: Amateur Radio Antennas & Towers Must Be Allowed in Your Community Association

Posted on by Gerstin

Presently pending in the United States Congress, H.R. 1301 is a bill proposed to protect the installation and use of amateur radio antennas and towers in community associations.  According to the bill, “[t]here is a strong Federal interest in the effective performance of amateur radio stations established at the residences of licensees”.  In regard to a community association’s restrictive covenants, the bill applies existing FCC policy used when dealing with State restrictions on antennas and towers to community association declarations.  The bill would, among other things, require community association “to permit erection of a station antenna structure at heights and dimensions sufficient to accommodate amateur service communications.”   H.R. 1301 would also apply to private office parks and essentially any privately owned land with use restrictions related to amateur radio antennas and towers.

 

The full text of the bill is available here: HR Bill 1301, United States Congress, Amateur Antennas and Towers.

Updated, 2015 Florida Community Association Pending Legislation

Posted on by Gerstin

Here we go again.  Below are the latest bills filed by the Florida Legislature that impact homeowner and condominium associations.  The official bill summaries below are from the respective legislature sponsors of each bill.  However, if you read the actual text of the proposed bills you will notice many other significant legislative changes affecting both homeowner and condominium associations that are not contained in the official summaries.

Updated as of April 15, 2015

The horrific bill that attempted to “condoize” Florida’s homeowner associations has failed. Florida House Bill 1263 failed to get to a committee and cannot become law this year. Nevertheless, this is the second year in a row this bill has failed so a regurgitation for another attempt at passage in the future is likely.

 

HB 791: Residential Properties.****
April 13, 2015, Bill passes Finance Committee

Amends the definition of “developer” to exclude certain owners who own small numbers of condominium units and certain timeshare trustees;

* Regulates the order of application of payments received by a condominium or cooperative association for past due assessments;

* Revises provisions related to fines and penalties assessed by associations;

* Provides that a homeowners’ association may only levy fines up to $100, unless otherwise provided in the association’s governing documents;

* Provides that a homeowners’ association member that fails to pay a fine may be suspended from the board of directors or barred from running for the board;

*  Provides that a homeowners’ association’s failure to provide notice of the recording of an amendment does not affect the validity or enforceability of the amendment;

* Authorizes non-profit corporation proxy voting based on a reproduction of the original proxy;

*  Updates the definition of “governing documents” for homeowners’ associations to include the rules and regulations that have been adopted by the association; and

*  Extends the time limitation for classification as bulk assignee or bulk buyer under the Distressed Condominium Relief Act until July 1, 2018 from July 1, 2016.

See full analysis here

CS/CS/HB 791 – Residential Properties

GENERAL BILL by Moraitis

Residential Properties; Provides that certain deed, transfer, or conveyance from owner of property is subject to certain taxes; authorizes use of copy, facsimile transmission, or other reliable reproduction of original proxy vote for certain purposes; revises & provides provisions relating to condominiums, including liability, official records of association, board of administration & unit owner meetings, voting process for providing reserves, liability of unit owners & mortgagees, claim of liens, bulk-unit purchasers, fines & suspensions; repeals provisions relating to Distressed Condominium Relief Act; revises & provides provisions relating to cooperatives, including official records of association, board of administration & shareholder meetings, applicability, claim of liens, fines & suspensions; revises & provides provisions relating to homeowners’ associations, including fines & suspensions, application, adoption of amendments to governing documents, & election of directors.

Full bill text here.

HB 611: Residential Properties

General Bill by: Civil Justice Subcommittee and Wood (CO-SPONSORS) Artiles; Eagle; Edwards; Mayfield; Raburn; Spano
Residential Properties: Provides requirements relating to request for estoppel certificate by unit or parcel owner or unit or parcel mortgagee; provides that association waives right to collect any moneys owed in excess of amounts set forth in estoppel certificate under certain conditions; provides that association waives any claim against person or entity who would have relied in good faith upon estoppel certificate under certain conditions; provides & revises estoppel certificate fee & supplemental fee requirements; repeals provisions regarding expedited court action to compel issuance of estoppel certificate. Despite allowing foreclosing lenders to live for free on the backs of every other homeowner association member by severely limiting the past due assessments a foreclosing lender that retained title has to pay (1% of the mortgage or 12 months), the Florida legislature is back for more. In case you missed it, proposed Bill HB 611 penalizes community associations that do not timely issue proper estoppel certificates by eliminating any amount not placed on the estoppel letter and timely delivered to the requester.Full bill text here.
March 27, 2015: The Senate version of the estoppel bill did not pass any committees and the House Bill 611 got two no votes in committee. It is unlikely these community association damaging bills will pass. 

SB 748: Residential Properties

GENERAL BILL by Ring

Residential Properties; Providing that any copy, facsimile, or other reliable reproduction of the original proxy may be substituted and used in lieu of, and for the same purposes as, the original proxy if the reproduction is a complete reproduction of the entire proxy; providing that the association may recover from the unit owner or parcel owner a reasonable charge imposed by a management or bookkeeping company, or collection agent, incurred in connection with a delinquent assessment, etc.

Full bill text here.

Hidden Dangers–10 Declaration Provisions Every Community Association Must Change

Posted on by Gerstin
10 Declaration Provisions Every Community Association
Must Change

Click here to download the full report.

 

  1. The Magic Language Exception. Known as the “Magic Language Exception”, inserting the words “as amended from time to time” after a Declaration’s statement of adherence to Florida law allows the Declaration to automatically adapt to changes in Florida law. Failing to incorporate the Magic Language Exception into a Declaration often times results in the loss of income from, and the benefits of, changes in Florida’s law related to the collection of delinquent assessments. Coral Isles East Condominium Assoc. v. Snyder, 395 So. 2d 1204 1981.

 

  1. The percentage for passage of an amendment is too high. Many associations are stuck with damaging and confusing Governing Documents because the threshold of affirmative votes for an amendment is too high. Consider amending your Governing Documents to a lower threshold of affirmative votes needed to pass an amendment in the future.

 

  1. Requiring tenant approval without the authority to do so.  Many community associations require pre-approval of tenants without the authority to do so in their Governing Documents. Undertaking an action (and possibly collecting a fee to do so) without the requisite authority can result in an expensive lawsuit.

 

  1. Enforcing Outdated and Illegal Provisions. Banning solar panels, improper age restriction enforcement (16 instead of 18), banning satellite dishes or improper debt collection techniques are only a few of the many outdated provisions in the Governing Documents of many community associations. Lack of intent and ignorance of the law is not a defense if the association is sued. Guidance to the Board of Directors and the amendment of these provisions should be undertaken.

 

  1. Failing to Rein in Rentals. Community associations, especially condominium associations, that do not limit renting in their communities may scare away lenders from lending to owners or may lose their FHA accreditation. Consider a Declaration amendment restricting new owners from renting until at least two years after their purchase.

 

  1. Releasing Homes Purchased at a Foreclosure Auction From Delinquent Assessments. Although Florida law limits a lender’s liability for past due assessments, the same restriction does not apply to third party purchasers at a foreclosure auction, unless otherwise stated in your association’s Governing Documents. Consider amending all provisions that release third party purchasers of a foreclosed home from payment of past due assessments.

 

  1. Borrowing limits. Many older community associations have bank borrowing limits set at amounts so low such loans would only be obtainable from a payday lender. Consider eliminating or increasing borrowing limits.

 

  1. Spending Limits. As a way to attract buyers in an era of “community association board’s waste money” many developers incorporated into their Governing Documents limits on the amount a Board of Directors can spend without owner approval. Unfortunately, the effects of inflation and increase costs have locked many of these community associations into unrealistic spending limits. Consider eliminating or increasing the amount your Board of Directors can spend without first obtaining owner approval by inserting an amendment that allows for a per year increase formula based on inflation.

 

  1. Unattainable Quorum. Florida law limits the percentage required for a members’ meeting quorum to 30% of the members. Nevertheless, many community associations are still unable to attain a quorum to conduct important business. Consider an amendment that lowers the required quorum for a member’s meeting below 30%.
  2. Regulating Guests. Associations with guests residing in units in the absence of an owner or approved tenant often find themselves ill prepared when a problem arises.  Declaration provisions relating to the use of homes by guests in the absence of an owner or approved tenant stops people from circumventing rental restrictions. Consider an amendment stating guests can only occupy a unit so many times per year. Another approach to dealing with long-term guests (e.g., guests staying for more than 30 days) is to require them to be screened in the same manner as tenants.

 

For a free analysis of your association’s community association Governing Documents please complete and fax the following to: (561) 750-8185 (no cover page needed) A representative from Gerstin & Association will contact you to set up your community association’s free Governing Document analysis.

 

Name: ____________________________

 

Association name: _____________________

 

Position at the association (director, property manager, etc.) _____________________

 

Email address: ______________________,

 

Telephone number: __________________

7 Deadly Sins of Collecting Delinquent Assessments

Posted on by Gerstin
7 Deadly Sins of Collecting Delinquent Assessments

Click here to download the full report.

 

1.    Failing to follow the specific procedures in your community association’s Governing Documents such as written notice from the association of the delinquent debt. Often times such failures, when objected to by a delinquent owner, requires the entire collection process to be restarted. Sometimes, such failures lead to expensive lawsuits and a large payout to the delinquent owner.

 

2. Agreeing to payment plans that are not in writing. A payment plan that is not in writing, is not worth the paper it is written on. Secure all payment plans in writing.

 

3.  Extending grace periods and granting concessions to neighbors and friends but no one else. It is understandable you want to help a neighbor or friend that is having problems with paying your association’s assessments. However, each owner has to be treated in the same, uniform manner. Extending grace periods only to friends or neighbors exposes the entire community association to an expensive lawsuit from an aggrieved owner to whom a grace period was refused.

 

4. Publishing a list of delinquent owners.       Shaming debtors is not only insensitive, it violates the Federal Fair Debt Collection Practices Act and exposes the association to an expensive lawsuit.

 

5.     Failing to follow the specific collection deadlines in your community association’s Governing Documents. If the collection deadlines are too long or too short, have them amended. In the meantime, collections must proceed in accordance with the specific deadlines contained in your association’s Governing Documents. Failure to do so can easily lead to an expensive lawsuit and a large payout to the delinquent owner.

 

6.  Failing to add interest and late fees onto delinquent assessments. Many community associations are unaware of their ability to impose late fees or are unable to properly calculate interest. Foregoing late fees and interest can significantly undermine a community association’s financial stability.

 7. Failing to timely forward a delinquent account to your attorney for collection. Depending on whether it is a condominium or homeowners’ association, attorneys are required to wait between 60 and 90 days prior to the institution of foreclosure litigation. Banks are required to pay only 12 months of delinquent assessments. Sometimes, a bank will wait years before filing a foreclosure lawsuit.       Association’s that fail to act timely and foreclose upon a delinquent owner’s home and rent the home until the bank takes title, can cost an association a year or more of assessment payments.

 

For help with avoiding the 7 Deadly Sins of Collecting Delinquent Assessments, and for a free analysis of your association’s community association collections, please complete and fax the following to: (561) 750-8185. A representative from Gerstin & Association will contact you to set up your community association’s free collection analysis.

 

Name: ____________________________

Association name: _____________________

Position at the association (director, property manager, etc.) _____________________

Email address: ______________

Telephone number: _____________________

Pet Weight Limits Don’t Apply to Emotional Support Animals in Florida’s Community Associations

Posted on by Gerstin

Another example of the expanding scope of the Fair Housing Act, is the recently decided case of Bhogaita v. Altamonte Heights Condo. Ass’n, Inc., No. 13-12625 (11th Cir. Aug. 27, 2014). In Bhogaita a jury was persuaded the Altamonte Heights Condominium Association discriminated against the Plaintiff when it enforced its pet weight policy and demanded a removal of the plaintiff’s emotional support dog. The jury awarded Bhogaita $5,000 in damages, and the district court awarded Bhogaita more than $100,000 in attorneys’ fees. The association appealed both the judgment entered on the jury’s verdict and lost the appeal. Click the link below for the full text of the case

Bhogaita v. Altamonte Heights Condo. Ass’n, Inc., No. 13-12625 (11th Cir. Aug. 27, 2014)–Fair Housing Act-disability provisions-pet weight limit for emotional support dog failed to accommodate disability

 

 

 

Community Association Collections, Be Wary About Notations on Checks From Delinquent Owners

Posted on by Gerstin

Originally believed to be trumped by various Florida laws specifying the allocation of delinquent assessment payments, Accord and Satisfaction is back.  In the case of St. Croix Lane Trust v. St. Croix Pelican Marsh Condo. Association, Case No. 2D13-3636., FLA 2d DCA (2014) a delinquent owner tendered payment to the association accompanied by a letter from the owner’s attorney.  The attorneys’ letter stated in pertinent part:

At worst[,] my client only owes the pro rata first quarter assessment for the period of its ownership. However, in a good faith effort to resolve this matter I have enclosed herewith a check in the amount of $840.00 payable to your Trust Account for the full January 1, 2012 assessment. Be advised and warned, this check is tendered in full and final satisfaction of all claims made against the Trust and the property for the amounts demanded in your May 7, 2012 correspondence. Regardless of intent, negotiation of the enclosed check shall be deemed an acceptance of the offer of settlement made herein, and shall be in full and final satisfaction of all claims against the Trust and the property. . . as more particularly set forth in your May 7, 2012 correspondence.he was in doubt as to the amount owed and the amount tendered is.

Wrongfully assuming Florida law’s regarding payment allocation for delinquent assessments (Florida Statute Section 718.116(3) would bar the application of Accord and Satisfaction and the full amount remained due and owing, the Association’s attorney advised his client to deposit the partial payment.  Having deposited the owner’s partial payment, the Court found there were no further amounts owed by the delinquent owner.  The court reasoned Florida Statute Section 718.116(3) governs the application of payments, not the actual amount owed.  As such, a partial payment that meets all of the requirements for an Accord and Satisfaction extinguishes the obligation for future payments upon its depositing by the association.  The Court further held a restrictive endorsement on a check regarding the allocation of payments, in direct contrast to Florida Statute Section 718.116(3), would not be valid.

Collecting delinquent assessments from condominium or homeowner association members is fraught with costly legal minefields. Community associations hiring attorneys that are not experienced in this area can be very expensive.