Sometimes you just never know how truly important it is to enforce your community association’s guest policy.
Business Litigation
Commercial Landlord’s Blanket Refusal to Allow Sublease Fails
Recently, in the case of Siewert V. Casey, 37 Fla. Weekly D527 (Fla. 4th DCA 2012), Florida’s Fourth District Court of Appeal illustrated the pitfalls and “time bombs” awaiting commercial landlords using “boilerplate” or outdated leases. In Siewert, the landlord’s commercial lease required the tenant to obtain the landlord’s written consent to an assignment or sublease. The lease did not contain any specific standards (financial ability, credit score, etc.) governing the landlord’s approval process. Nevertheless, the landlord’s blanket refusal to allow a sublease was considered by the Court a breach of the lease:
When a lease contains a boilerplate clause requiring the landlord’s consent for any
proposed sublease—without specific standards governing the landlord’s approval—
the landlord may not then arbitrarily withhold approval of a sublease.
This decision stems in part from Florida’s “implied covenant of good faith”. The implied covenant of good faith is a common law doctrine requiring contracting parties to fulfill their contractual obligations in good faith.
To avoid suffering a similar fate, commercial landlords should seek assistance from an attorney in maintaining up to date master templates and leases. A lease should always be as short and concise as possible, while at the same time meeting the latest standards of Florida law and the landlord’s specific needs. The full text of the Court’s decision can be found here: Siewert V. Casey, 37 Fla. Weekly D527 (Fla. 4th DCA 2012).
Hope & Desire Not Enough for Tortious Interference Claim In Florida
Florida’s Fourth District Court of Appeals: An existing relationship is required before bringing a claim for tortious interference with a business relationship. Hoping that one day you will have, or could have had, a business relationship is not enough.
Click here for the Florida 4th DCA opinion
Attorneys’ Fee Provisions in Contracts at Risk Upon Appeal
Specificity prevails over tired boilerplate.
Attorneys’ fees incurred performing appellate work will not be awarded to the prevailing party if the contract or document forming the basis for an attorneys’ fee award does not provide for appellate attorney’s fees.
Emails Confer Long Arm Jurisdiction for Litigation
Regardless of whether the sender intended to target Florida residents, an email sent to a group, some of whose members are residents of Florida, confers long arm jurisdiction under Fla. Stat. § 48.193 (1)(b). In turn, a Florida resident can file a lawsuit against the sender of the e-mail in Florida. Price v. Kronenberger, — So.3d —-, 2009 WL 5150236 (Fla. 5th DCA 2009).
Community Association Liability for Abandoned Homes
1. Three main types of community associations
a. Mandatory homeowner associations
b. Non mandatory homeowner associations
c. Condominium associations
2. Abandoned homes & association liability
a. Most liability cases relate to children trespassing in an abandoned home. However, other sources of liability are prevalent in Florida:
i. Open swimming pools, no pool fence and/or no outer fence
ii. Partial open construction
iii. Construction equipment on abandoned home premises
iv. Mold spreading to occupied dwellings (condo. and townhomes)
v. Unsecured holes on land
b. Florida law focuses primarily on landowner of property where an injury occurred. Same standards may apply to community associations.
i. Owner is liable for trespassers being hurt in two instances:
1. As to adults. . .owner knew of a danger that was hidden and failed to take reasonable safeguards.
2. As to children:
a. The home or premises contain a danger that may be obvious to adults but to a child the danger would not be appreciated.
b. Owners of abandoned homes are not optimal “targets” of lawsuits. Community associations are optimal targets.
3. Non Mandatory Homeowner Associations
a. If the subject home is not a member, liability rarely exists.
b. The lack of association control over common areas, maintenance of homes and the conduct of residents further support the absence of liability.
c. If the unincorporated association or a person undertakes a repair, it may be trespass.
d. Regardless of association status or if an individual undertakes a repair, if a repair is undertaken it must be done right.
4. Mandatory Homeowner Associations
a. Typically not the owner of the abandoned home or land but liability may still exist. Same standards as in 2(b) above.
b. Factors increasing liability
i. The homeowners’ association maintains and/or controls the front or back yard.
ii. The homeowners’ association controls all of the land leading up to the front or back of the home.
iii. The homeowners’ association controls certain aspects of construction such as when and how.
iv. Children living in the homeowners’ association.
v. Children are present near the association (adjoining a school).
vi. The association has undertaken similar safeguards with other homes.
vii. Is there an “attractive nuisance” or a hidden danger on an area that is traversed leading to the home and/or under the association’s control.
viii. Has the association undertaken any action with relation to safeguarding the home already.
c. Safeguards
i. Do not look for problems, typically it is unnecessary to enter an abandoned home.
ii. Once the homeowners’ association decides to act it must complete its act with diligence and responsibly. Therefore, consult your attorney to determine if action is necessary. Each instance is fact specific and not every instance of an abandoned home requires action.
iii. A broken fence adjoining association controlled land should be secured and properly marked as a danger.
iv. Obvious dangers such as open holes on the home’s premises or incomplete construction visible from the street should be secured.
v. Consider securing pools, contact both the owner and the bank, if no response. Depending on the situation, draining the pool could be dangerous.
vi. Have the association’s attorney diligently contact the bank and owner. The attorney should also track the foreclosure so the new owner can be notified immediately of the problems.
5. Condominiums
a. Condos. have the statutory right to enter a unit if the unit’s condition is posing a danger to the other units.
b. Condo. owners are required to abide by a condo. association’s request to maintain a copy of their key.
c. If an abandoned condominium presents a danger to the other units, residents and/or the general public who may not appreciate the danger, the unit should be secured.
1. The doors and windows should be locked.
2. Mail should be not be allowed to accumulate.
3. Contact the bank and the former owner to put them on notice of the need for power to the unit to stop mold from spreading.
4. The association’s lawyer should ensure the bank’s foreclosure process is moving timely .
5. Contact the bank or new owner after the foreclosure sale and inform them of the problems.
6. With a bank’s failure to respond or a slow foreclosure process, association’s need to consider having power supplied to the unit and then back billing a new unit owner or the bank.
6. Insurance
a. Each insurance policy is different, abandoned home liability typically not covered by E & O without a rider.
b. Policy review by attorney and insurance agent recommended.
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Admitted as Expert at Trial, Even Though Expert Report is Garbage
In Eagle’s Crest, LLC v. Republic Bank, — So.3d —-, 2010 WL 3059529 (Fla. 2d DCA 2010), the court held once an expert is “qualified” by a court the expert’s opinions are admissible despite their lack of credible conclusion or methodology. However, the conclusions and methodology are subject to scrutiny by the opposing party. A/K/A a field day for an attorney skilled in cross examinations. Read case here.
Florida’s Long Arm Statute Extends
In the case of Singer v. Unibilt Development Co., — So.3d —-, 2010 WL 3056030 (Fla.5th DCA 2010), the Court held continuous and systematic contact with Florida is required but. . . such contact does not have to occur contemporaneously with the filing of the lawsuit. For businesses who no longer, but once did, business in the State of Florida, being hauled into Florida’s courts is a possibility. Read the case here.
***Updated with Florida’s 2013 Legislative Amendments, Transition of Control of a Florida Community Association
Transition of Control of a Florida Community Association
Click here to download this article as a .PDF
A wise man once said “transitions are never easy”. A wise lawyer once said “transition of control of a Florida community association are never easy and can be disastrous”.
Following is a general list of items for a community association to be aware of as they proceed towards the important process of the transition of control from a developer controlled association to that of a member controlled association. The following information is intended as general information and not legal advice. For legal advice an attorney must be consulted.
We accumulated the following information based upon our experience in representing many community associations and have found the following tasks and information is important for an association’s members to undertake and review prior to signing a release with the developer.
1. Interviewing of banks. Immediately after the transition the association should open new bank accounts. The forms necessary to open the appropriate accounts should be secured now to avoid undue delay.
2. Begin interviewing professionals, which should in the very least include:
a. Accountant;
b. Property manager;
c. Attorney; and
d. Engineer (with experience in community association transitions).
3. If the post office is diverting the mail sent to the association to an address of the developer, secure the forms to have the mail sent directly to the association.
4. Secure from the Florida Secretary of State a statement of change for the Registered Agent. This document can be downloaded from www.sunbiz.org.
5. A form known as “Request for Copy of Tax Form” should be retrieved from the Internal Revenue Service. The completion and eventual submission of this form will enable the association to obtain the previous three (3) years of tax returns after the transition of control is complete.
6. Begin identifying potential candidates for Board of Directors’ positions.
Following are a list of items that we attempt to receive from a developer during the
transition period:
a. A full and complete copy of the association’s Declaration of Covenants and Restrictions, Articles of Incorporation, Bylaws and Rules and Regulations;
b. The financial records of the association from the date of incorporation through the present date;
c. Access to, and control of, the association’s funds that remain in the developer’s bank accounts for the association;
d. Copies of all deeds to common property owned by the association;
e. Copies of the minute books from all of the meetings held by the Director;
f. Bills of sale, or receipts for, any of the association’s tangible personal property;
g. Copy of all contracts to which the association is presently a party. Such contracts typically include landscaping, property management, accounting, janitorial, etc.;
h. Name, address and telephone numbers of all contractors and/or employees that are presently being employed by the association;
i. Copies of any and all insurance policies that are presently in effect;
j. A complete list of all current home owners along with their address, telephone number and, if applicable, section or lot numbers;
k. Any and all warranties the association might possess for items such as air conditioning, the pool, etc;
l. Any and all permits issued by governmental authorities that regulate the association from the present date relating back to approximately one year prior;
m. Any leases for the common areas to which the association is a party;
n. Copy of any master keys or keys utilized for the common areas;
o. An up to date ledger sheet for each owner and any assessment payments that are in arrears as well as a full payment history for each owner; and
p. The “Official Records” of the association Florida Statute §720.303(4), lists the official records that an association is required to maintain for a period of seven (7) years. The developer is also under this duty and should have these documents in its possession. I have enclosed for your review a copy of this statute.
***2013 Florida Legislative Amendments
F.S.§ 720.303 (6)(d) Budgets. If a homeowner association developer elects to maintain a reserve account for the HOA, the developer’s budget must designate the particular purpose or use of the funds. The underlined portion below is the amended text of F.S.§ 720.303 (6)(d):
(d) An association is deemed to have provided for reserve accounts if reserve accounts have been initially established by the developer or if the membership of the association affirmatively elects to provide for reserves. If reserve accounts are established by the developer, the budget must designate the components for which the reserve accounts may be used. If reserve accounts are not initially provided by the developer, the membership of the association may elect to do so upon the affirmative approval of a majority of the total voting interests of the association. . .
F.S. § 720.307 Transition of association control in a community —Added to the threshold for an “automatic transition” to member control are a developer’s abandonment of its assessment, maintenance or construction responsibilities or if the developer files for Chapter 7 bankruptcy, enters receivership or loses title to a common area through a foreclosure. The underlined portion below is the amended text of F.S. § 720.307:
720.307 Transition of association control in a community.—
With respect to homeowners’ associations:
(1) Members other than the developer are entitled to elect at least a majority of the members of the board of directors of the homeowners’ association when the earlier of the following events occurs:
. . .
c) Upon the developer abandoning or deserting its responsibility to maintain and complete the amenities or infrastructure as disclosed in the governing documents. There is a rebuttable presumption that the developer has abandoned and deserted the property if the developer has unpaid assessments or guaranteed amounts under s. 720.308 for a period of more than 2 years;
(d) Upon the developer filing a petition seeking protection under chapter 7 of the federal Bankruptcy Code;
(e) Upon the developer losing title to the property through a foreclosure action or the transfer of a deed in lieu of foreclosure, unless the successor owner has accepted an assignment of developer rights and responsibilities first arising after the date of such assignment; or
(f) Upon a receiver for the developer being appointed by a circuit court and not being discharged within 30 days after such appointment, unless the court determines within 30 days after such appointment that transfer of control would be detrimental to the association or its members.
F.S. § 720.307 Pre-transition Board of Directors. The amendment to F.S. §720.307 also lowered the threshold for a member to serve as a director on the pre-transition Board of Directors. Members, other than the developer, are allowed to elect at least one non-developer related member to the pre-transition Board of Directors if 50% of the parcels in all phases have been conveyed to the members.
F.S. § 720.3075 Prohibited clauses in association documents–Developers. At any point pre-transition of control (not the 90% conveyed mark) a developer’s unilateral amendment to the Governing Documents will be subject to scrutiny as to its reasonableness. No longer considered reasonable or allowable are “ . . .amendments to the governing documents that are arbitrary, capricious, or in bad faith; destroy the general plan of development; prejudice the rights of existing nondeveloper members to use and enjoy the benefits of common property; or materially shift economic burdens from the developer to the existing nondeveloper members.”
The above list is not exhaustive; however, by beginning to request these items the association will be in a better position as the transition progresses. Additionally, it is recommended the association accept the transition of the developer via the resignation of developer members of the Board and then placement of owner member directors after an election. At that time, developers often request the association sign a release. By signing a release the association will waive any and all rights that it might have to claims for construction defects and/or misappropriation of funds. As such, the association should have the transition of control occur and then retain the services of an accountant, an attorney and an engineer. These professionals will perform what is commonly known as “due diligence”. Without hiring these professionals there is no way the association can truly know whether or not they are aware of every issue that remains outstanding, or liability incurred by the developer, that is now an association liability.
Certain times the above referenced reports issued by these professionals have minor problems that are easily settled with the developer. Other times, there are hidden problems that would have surely gone unnoticed if it were not for the diligent work of these professionals. Either way, the association’s Board of Directors has a fiduciary duty to its members and should in the very least understand the present state of the association before signing a release with the developer.
After the reports from the professionals are returned to the association, the Board of Directors should attempt to informally negotiate with the developer for any repairs or funds they believe are owed. This informal approach should involve keeping the association’s counsel informed as to its status and, if necessary, the review of documents. If the association is successful in its negotiations, the attorney for the association, as well as that of the developer, can draft the final documents. If the negotiations are not successful, the attorney for the association should still attempt to settle the matter with the developer’s attorney with a set time period for completion. It is always better to try and settle for a fair amount then filing a lawsuit. However, sometimes it is unavoidable and a lawsuit is necessary