Florida Condominium Living is About to Become Very Expensive.

Posted on February 22, 2023 by Gerstin

–By Joshua Gerstin, Esq.

If you own a condominium in Florida, it is important to be aware of the significant cost increases condominium owners will face due to recent changes in Florida law and ever-increasing insurance premiums. In particular, the new Structural Integrity Law, with its mandated increases in reserve requirements and the skyrocketing cost of insurance, will cause many Florida condominium owners to sell their units and many condominium associations to pursue termination of their condominium associations.

The Structural Integrity Law was passed in response to the collapse of the Champlain Towers South condominium building in Surfside, Florida, in June 2021. The law requires all condominium associations in Florida to complete a structural inspection by a qualified engineer or architect and a reserve study by the end of 2021. Condominium associations are required to make any necessary repairs identified in the inspection.

The cost of the required inspections, reserve study and repairs can be significant. According to estimates from the Community Associations Institute, the cost of a structural inspection alone can range from $10,000 to $50,000 or more, depending on the size and complexity of the building. Repairs identified in the inspection can cost millions of dollars, and may require assessments or increases in monthly assessments to cover the costs.

In addition to the costs associated with the Structural Integrity Law, Florida condominium owners will also face increases in reserve requirements. The Structural integrity law prohibits the pooling of reserves for certain designated items or items identified as in need of repair by the structural inspection. Additionally, the law also removed the ability of condominium associations to partially fund or waive full funding of reserves.

The increase in reserve requirements will likely result in higher monthly assessments for condominium owners in associations that routinely chose not to fully fund their reserves. Condominium associations may need to levy special assessments to make up for any shortfall in reserve funds. These assessments can be a significant burden on condominium owners, particularly those who are already struggling financially.

Finally, condominium owners in Florida can expect to see exponential increases in their insurance premiums. Insurance companies are raising rates for condominium associations in response to the Champlain Towers South collapse and the resulting scrutiny of building safety and maintenance practices.

The new Structural Integrity Law, along with increases in reserve requirements and insurance premiums, will have a significant impact on the costs of owning a condominium in Florida. Condominium associations have options to mitigate these issues, but they have to act fast by taking steps NOW to ensure their condominium associations remain financially stable with a safe and secure living environment for their residents.

Act Now!

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ALERT! Florida’s Legislature Passes Legislation Impacting Florida’s Community Associations.

Posted on April 28, 2021 by Gerstin

SB 630 unanimously passed both the House and Senate. A copy of the first engrossed version bill is available by clicking here. The bill will be sent to the Governor for signature and has an effective date of July 1, 2021.

There are also many other amendments to Florida law and newly drafted laws expected to be passed by the legislature that will impact Florida’s community associations. Check back here often for additional legislation as each one passes. When all of the legislation impacting community associations is passed in their final form, we will distribute a complete analysis of each new and amended Florida statute.

The Top 10 Most Pressing Issues for Community Associations In the New Year.

Posted on December 27, 2020 by Gerstin

As The State of Florida emerges from the COVID-19 pandemic, the year 2020 will live on in infamy. During the past year of sadness, chaos, and hope many trends emerged that are likely to stay with us long after COVID-19 is gone. Some of these trends, such as increased communication and video conferencing, will be welcome. Other trends, such as the need for increased collection efforts and renewed leasing and sales restrictions, may not be as welcome. Following are the top ten most pressing issues for community associations in the new year.

1. ZOOM Meetings for Members. For most community associations, offering a video conferencing option for the members to participate in a Board meeting or count towards a quorum in member meetings after the emergency declarations are lifted will require the promulgation of well-drafted Rules. For some community associations, the more arduous process of amending the declaration or by-laws may be required.

2. ZOOM Meetings for Directors. In addition to members participating in board meetings via video conferencing, directors may want to participate via videoconferencing as well. Allowing directors to participate via video conference after the emergency declarations are lifted will require a thorough review of a community association’s governing documents. A quorum of the board attending board meetings via video conferencing after the emergency declaration subsides will most likely not survive a challenge.

3. Recording ZOOM Meetings. If a ZOOM meeting is recorded, the recording is an Official Record likely requiring the Association to make the recording available to others to watch for the next seven years. Deciding not to record video conference meetings inevitably causes the loss of evidence necessary to confirm a quorum if challenged. Consider establishing a video conference recording policy.

4. Mandating Vaccines for Common Area Access. Can a community association mandate proof of COVID-19 vaccination before allowing members or their guests access to common areas?

5. Working from Home or Running a Home-Based in Community Associations. The pandemic normalized working from home and in many instances newly laid-off workers are starting home-based businesses. Working from home is different from having a home-based business with pickup, deliveries, and the occasional customer. However, most governing documents do not recognize the difference between the two, rendering most existing work at home/ home-based business restrictions useless.

6. The Mass Yankee Migration, Leasing & Sales Restrictions. The pandemic amplified an already existing trend, more people are moving to Florida than ever before. Many community associations recently made an unsettling discovery, their leasing and sales restrictions enforced for years are either outdated or do not exist at all! Fair Housing Act complaints are brutally expensive and may not be covered by your community’s insurance. Check and validate your leasing and sales restrictions before it is too late.

7. Getting Involved in Neighbor v. Neighbor Disputes. As the pandemic raged, so did people’s tempers. Community associations that misunderstood their role and scope of authority are now finding themselves spending time and money handling neighbor v. neighbor disputes. To avoid unnecessary liability and the wasting of precious resources, community associations need to know “when to hold and when to fold em’”.

8. Increased Collection, Bankruptcies, and Foreclosures. The financial strain of the pandemic will be felt throughout community associations long after the pandemic is over. Many community associations have out-of-date collection policies. Other community associations improperly “follow their gut” or make up rules as they go. Community associations need to examine their collection policies now. Lawsuits over improper collection activity are expensive and damaging. Community associations can be compassionate, while at the same time avoid costly deficits.

9. Governing Document Enforcement. Many community associations were lax in enforcing their governing documents as the pandemic raged. Finding a kindly, gentler way to now enforce your governing documents before it is too late and your community’s restrictions are “waived” and lost forever is vital for many community associations.

10. Pets, Pets & More Pets. During the pandemic pet adoptions skyrocketed. Many community associations found themselves without the ability to limit pets and have no system in place to track pets. Other community associations improperly allow or deny emotional support animals leading to increased liability.

One thing is known for certain, community associations that act proactively will be better positioned to meet their obligations in the year 2021. Form a committee, gather the Board, and call your association’s attorney, the time is now to plan ahead.

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2020 Hurricane Season, the Definitive Checklist for Florida’s Community Associations.

Posted on June 18, 2020 by Gerstin

– By Joshua Gerstin, Esq.

(Click here for .pdf version with “checkable” fields for your ease of use!)

Hurricane season begins on June 1st and lasts 5 months, with storms typically peaking in August and September. Due to COVID-19, this hurricane season will be unlike all others. Properly preparing for this unique hurricane season could truly be a lifesaver. The following hurricane preparation checklist is a combination of over twenty years of community association legal experience and new COVID-19 precautions:

Things to do now:

COVID-19 Related Hurricane Checklist:

— Start stocking up on cleaning supplies now. Most stores have limited cleaning supplies or only allow a limited number of purchases. It is going to take a lot longer to obtain all the cleaning supplies you will need.

— An abundance of hand Sanitizer, soap, disinfectant spray, disinfectant wipes and face masks are the COVID-19 supplies your community association will need if a hurricane strikes.

— Plan for extended power outages (generator fuel, ice, flashlights, extra petty cash and installing a landline). Although FPL has been burying power lines and improving the electrical grid, additional workers will be needed to restore power after a hurricane. COVID-19 testing of these workers will cause delays and will limit the size of this additional workforce as infected workers are turned away.

— Purchase locks and non-electronic security equipment to keep buildings and common areas secure from vandalism or looting during an extended power outage.

— Go to the app store for your mobile phone and download the official FEMA app. A face-to-face meeting with an adjuster after a hurricane strikes is unlikely. FEMA has made available a phone app that can allow insurance companies to provide estimates without an in-person visit. When the app is running, it can take photos and measurements and gather additional information as you walk through your common areas.

— Confirm shelter locations, evacuation routes and remind residents to take their pets if they evacuate. Due to COVID-19 shelters and evacuation routes across Florida have changed. Officials are considering protocols for shelters that range from separating people based on temperature checks to non-congregated sheltering in hotels. Direct residents to https://www.cdc.gov/disasters/hurricanes/covid-19/public-disaster-shelter-during-covid.html for further information about staying virus free in a shelter.

— Establish a designated area that allows for social distancing where residents can meet for more information after the disaster.

— Inform residents in writing the extent of help the association will be providing (and not providing) during and after a hurricane. Urge your residents to begin their own preparation and evacuation plans.

— Update your contact list of owners, board members and staff. Ensure the list contains the correct contact information for seasonal residents. Print out the list and place it in a safe location (having it on your computer will do you no good when the power is out).

— Similar to the children’s game “telephone”, establish amongst the board of directors a chain of command for communications in the event a hurricane strikes. When a hurricane strikes, time should not be wasted by having to contact each board member or answer each board member’s non-emergency information inquiry.

— Update your vendor list, print it out and place it in a safe location (having it on your computer will do you no good when the power is out).

— Ensure your building’s plans and blueprints are in a safe location with easy access for first responders or insurance agents. Highlight shut-off valves, power-boxes, lift stations and debris staging areas.

— Service your association’s lift stations now to avoid sewage overflow if a hurricane strikes.

— Confirm all of your association’s data is being regularly backed up to the cloud or offsite.

— Copies of your association’s insurance policies, claims filing information and insurance agent’s contact information should be in paper form and secured in a safe location.

— Keep handy a list of all bank account numbers, branch locations and authorized association signatories. Have the board authorize an increased petty cash amount to be stowed away with your hurricane supplies. Credit cards, debit cards and computer checks will not be available if the power is out.

— Enter into contracts with vendors you will use during an emergency (water removal, debris cleanup repairs, etc.) to ensure they are available immediately after an “all clear” is given. Hurricane Irma struck during the same season a hurricane hit Puerto Rico and Texas. Many community associations were unable to secure vendors for the cleanup of debris and water because their vendor was assisting with other hurricanes.

— Pre-determine a staging area for debris and contract for debris dumpsters.

— Print out the instructions for updating the Association’s website and keep them in a safe location. Designated a member or director to provide frequent website updates regarding your association after a hurricane strikes. Off-site or seasonal residents will be searching for information and you do not want them contacting management if possible.

— Print out the instructions for updating the Association’s voicemail and keep them in a safe location. Residents and their loved ones will be calling for information and your association’s outgoing message on its voicemail is an effortless way to keep them updated.

— Make plans to shut down and secure clubhouses and other amenities, store furniture and to shutoff electric and water.

— Confirm all drainage areas and lines are working at full capacity.

— With proper socially distancing, establish a designated area within the association for posting hurricane-related updates.

— If you have a manned gate, make sure the attendants and the residents know at what point the attendants will be sent home and that the gates will be locked in the open position to provide emergency ingress and egress.

— Buy battery operated walkie-talkies and consider having a landline installed. Past hurricanes have taught us battery-operated walkie-talkies and a landline are the only communication methods that can be relied on if the power goes out.

— Stock up on and securely store gasoline, tarps, duct tape, sandbags, submersible water pumps, chain saws, water, flashlights, weather radio, batteries, and a video camera for documenting storm damage.

— Consult your elevator company on how to properly secure your association’s elevators.

— Ensure you have keys to each unit in your building.

— Have your Association’s trees trimmed, including the removal of all coconuts, seeds or potential hurricane “missiles”.

— Have all dead and dying trees removed. Consider waiting to replant any new trees until after the hurricane season. All new trees should be firmly staked and secured

— Identify residents who need special care and contact those owners and their families to determine if arrangements have been made for them. Remind all residents the elevators may need to be shut down or may not operate for an extended period due to a power outage.

— Inform residents in writing what to expect from the association before, during and after a hurricane strikes. Advise residents to communicate with friends and relatives elsewhere who will be concerned. Association offices oftentimes become overwhelmed after a storm with relatives calling from out of state to check on them. In the event of a mandatory evacuation, remind owners to keep all receipts related to additional living expenses, such as hotel accommodations and gasoline if an evacuation is mandated. These receipts may be reimbursable as part of an eventual insurance claim.

When a hurricane warning has been issued:

— Bring all objects inside that may be tossed about by wind or rain.

— Check all drainage areas and remove any debris that would restrict water flow.

— Lower the water in all pools, fountains and other water features.

— Shut down, close and securely lock all pools, water pumps (pools, fountains irrigation, etc.) and recreation areas.

— Videotape or photograph the building and all common areas with a date stamp to accurately document the property’s pre-storm condition for insurance purposes.

— Ensure all construction dumpsters are empty. If possible, arrange to have your regular dumpster emptied.

— Strategically place sandbags in areas where flooding is anticipated.

After the hurricane has passed:

— Stay calm, triage the association and focus only on life/safety issues.

— After the life safety issues are stabilized, focus on damage mitigation and recording the remediation work with photographs and video. Contact your vendors to come into the association to begin removing debris and items that are wet (drywall).

— Consider shadowing contractors and vendors as they inspect or work on individual units to avoid stolen property claims later.

— Continue documenting and recording the damage and remediation efforts for insurance purposes.

— In times of need, unscrupulous people always try to take advantage. Avoid vendors, contractors and third-party/private insurance adjusters soliciting your association’s business. If you have no choice, take the time to fully vet each one before signing anything.

— With the assistance of an attorney experienced in community association hurricane claims (joshua@gerstin.com), contact and file a claim with your association’s insurance carrier.

Click here for .pdf version with “checkable” fields for your ease of use!

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Coronavirus & Florida Community Association Emergency Powers.

Posted on March 15, 2020 by Gerstin

How Florida’s Emergency Power Statutes Can Help Keep Your Community Safe.

(click here for .pdf version)

Both President Trump and Governor DeSantis invoked states of emergency and triggered the statutory emergency powers for Florida’s community associations. Found in Sections 718.1265, and 720.316 of the Florida Statutes, these emergency powers were enacted with hurricanes in mind. However, the statutes apply whenever a national or state emergency is declared. As such, these emergency powers can assist community associations in their fight against the spread of the Coronavirus. Below is the statute with certain parts highlighted in bold you may find useful for your community association. Although the statute set forth below is the version for condominium associations, an identical version applies to homeowner associations. As always, speak with your association’s attorney before implementing any of these statutory emergency powers and follow the most updated directives from your local health officials.

718.1265 & 720.316?Association emergency powers.— (click here for HOA version)

(1) To the extent allowed by law and unless specifically prohibited by the declaration of condominium, the articles, or the bylaws of an association, and consistent with the provisions of s. 617.0830, the board of administration, in response to damage caused by an event for which a state of emergency is declared pursuant to s. 252.36 in the locale in which the condominium is located, may, but is not required to, exercise the following powers:

(b) Cancel and reschedule any association meeting.

(c) Name as assistant officers persons who are not directors, which assistant officers shall have the same authority as the executive officers to whom they are assistants during the state of emergency to accommodate the incapacity or unavailability of any officer of the association.

(d) Relocate the association’s principal office or designate alternative principal offices.

(e) Enter into agreements with local counties and municipalities to assist counties and municipalities with debris removal.

(f)?Implement a disaster plan before or immediately following the event for which a state of emergency is declared which may include, but is not limited to, shutting down or off elevators; electricity; water, sewer, or security systems; or air conditioners.

(g) Based upon advice of emergency management officials or upon the advice of licensed professionals retained by the board, determine any portion of the condominium property unavailable for entry or occupancy by unit owners, family members, tenants, guests, agents, or invitees to protect the health, safety, or welfare of such persons.

(h) Require the evacuation of the condominium property in the event of a mandatory evacuation order in the locale in which the condominium is located. Should any unit owner or other occupant of a condominium fail or refuse to evacuate the condominium property where the board has required evacuation, the association shall be immune from liability or injury to persons or property arising from such failure or refusal.

(i) Based upon advice of emergency management officials or upon the advice of licensed professionals retained by the board, determine whether the condominium property can be safely inhabited or occupied. However, such determination is not conclusive as to any determination of habitability pursuant to the declaration.

(j) Mitigate further damage, including taking action to contract for the removal of debris and to prevent or mitigate the spread of fungus, including, but not limited to, mold or mildew, by removing and disposing of wet drywall, insulation, carpet, cabinetry, or other fixtures on or within the condominium property, even if the unit owner is obligated by the declaration or law to insure or replace those fixtures and to remove personal property from a unit.

(k) Contract, on behalf of any unit owner or owners, for items or services for which the owners are otherwise individually responsible, but which are necessary to prevent further damage to the condominium property. In such event, the unit owner or owners on whose behalf the board has contracted are responsible for reimbursing the association for the actual costs of the items or services, and the association may use its lien authority provided by s. 718.116 to enforce collection of the charges. Without limitation, such items or services may include the drying of units, the boarding of broken windows or doors, and the replacement of damaged air conditioners or air handlers to provide climate control in the units or other portions of the property.

(l) Regardless of any provision to the contrary and even if such authority does not specifically appear in the declaration of condominium, articles, or bylaws of the association, levy special assessments without a vote of the owners.

(m) Without unit owners’ approval, borrow money and pledge association assets as collateral to fund emergency repairs and carry out the duties of the association when operating funds are insufficient. This paragraph does not limit the general authority of the association to borrow money, subject to such restrictions as are contained in the declaration of condominium, articles, or bylaws of the association.

(2) The special powers authorized under subsection (1) shall be limited to that time reasonably necessary to protect the health, safety, and welfare of the association and the unit owners and the unit owners’ family members, tenants, guests, agents, or invitees and shall be reasonably necessary to mitigate further damage and make emergency repairs.

Educational purposes only. Not meant for legal advice, please consult your attorney for legal advice.

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Gerstin & Associates
40 SE 5th St., Suite 610
Boca Raton, FL 33432
Telephone: (561) 750-3456
Fax: (561) 750-8185
Email: joshua@gerstin.com
Web: www.gerstin.com

Gov. DeSantis signs bill banning Community Association Restrictions on Law Enforcement Vehicles

Posted on February 23, 2020 by Gerstin

It’s the Law.

Law enforcement officers in Florida are now allowed to park their work vehicles in any location other vehicles are allowed to park despite provisions in a community’s governing Documents to the contrary. The new law applies to Florida’s homeowner association, condominium associations and timeshares.

To read the full text of the law, click here.

HUD Issues New Notice and Guidelines for Dealing With Service and Support Animals.

Posted on January 29, 2020 by Gerstin

Emotional Support Mini-horse!

Emotional Support Bearded Dragon Lizard!

An important new notice released on January 28, 2020 from the United States Department of Housing and Urban Development provides new guidelines for dealing with Service and Support Animals. This notice explains certain obligations of housing providers under the Fair Housing Act (FHA) with respect to animals that individuals with disabilities may request as reasonable accommodations.

There are two sections to this notice. The first, “Assessing a Person’s Request to Have an Animal as a Reasonable Accommodation Under the Fair Housing Act,” recommends a set of best practices for complying with the FHA when assessing accommodation requests involving animals to assist housing providers and help them avoid violations of the FHA. The second section to this notice, “Guidance on Documenting an Individual’s Need for Assistance Animals in Housing,” provides guidance on information that an individual seeking a reasonable accommodation for an assistance animal may need to provide to a housing provider about his or her disability-related need for the requested accommodation, including supporting information from a health care professional.

Considering this notice replaces the previous HUD guidelines it is important for all of Florida’s community associations to check with their attorney immediately to ensure its practices and policies meet or exceed these new guidelines.

A copy of HUD’s New Notice and Guidelines for Dealing With Service and Support Animals can be download by clicking here: HUDAsstAnimalNC1-28-2020

2019 Florida Community Association Case Law Year in Review.

Posted on January 19, 2020 by Gerstin

Based on a seemingly low media profile many people wrongfully assumed Florida’s court system had little or no impact on their community association in 2019. Although lacking in “name plate” cases the following case law decided in 2019 will have a meaningful impact on Florida’s condominium and homeowner associations (click here for .pdf of this article):

2019 Case Law Decisions

• Condominium Board Member Term Limits.

Is the 8 year directorship limit retroactive?
Only one arbitration case so far on this issue involving a community association. In the arbitration case, the association’s governing documents did not contain the “Kaufmann Language”.
According to the arbitration case of Glantz v. Hidden Lake, Case No.: 2019-01-5048, without Kaufmann Language the term limits count starts from the date the legislation passed forward.
With Kaufmann Language, one can assume the opposite result.

• Former Owner Awarded Attorneys’ Fees Against Community Association.

After an association filed a lawsuit against the two title owners of a unit to recover unpaid assessments, the unit owners denied the allegations and asserted their right to recover attorneys’ fees and costs.
The two unit owners sold the unit to a third party.
Over a year passed without any activity in the case. This typically happens with an inattentive attorney or unengaged board of directors.
Judge dismisses the association lawsuit for “lack of prosecution”. One of the former unit owners then filed a motion for prevailing party attorneys’ fees pursuant to the Declaration of Condominium and Florida Statute §718.106 and won.
Don’t ignore old case you might consider moot, close out the cases properly or face the possible expensive consequences. Tison v. Clairmont Condo. F Ass’n, No. 4D19-117, 2019 Fla. App. LEXIS 16769 (4th DCA Nov. 6, 2019).

• Developer allowed to use working fund contributions for operating expenses.

Working fund contributions used to be considered as benefiting the association, not its a developer. That sentiment recently changed in a recent case decided by Florida’s Fourth District Court of Appeal involving Valencia Reserve, a residential community of single-family homes in Palm Beach County.
While still in control of the association, the developer used Working Fund Contributions collected at each closing to satisfy the Association’s operating deficit.
After turnover, the HOA sued the developer claiming the HOA Act prohibited the developer’s use of working fund contributions to satisfy the deficit.
Florida’s Fourth District Court of Appeals affirmed the lower court’s ruling finding that the developer’s use of the working fund contributions was permitted by both the Declaration and the HOA since they were not budgeted for designated “capital contributions”.
Valencia Reserve Homeowners Ass’n v. Boynton Beach Assocs., XIX, LLLP, 44 Fla. L. Weekly D2208 (Fla. 4th DCA August 28, 2019).

• Associations Must Comply with the ADA and Florida’s Accessibility Code.

An elderly patient visiting a medical facility in a strip mall fell near a curb in the parking lot and sued the medical facility, the manager of the mall and the owner of the mall based on a premises liability negligence claim. In support of his claim, the injured patient relied up a provision in the Florida Accessibility Code of Building Construction requiring the shortest accessible route between the handicapped parking space where he parked and the entrance to the medical facility. This requirement is not in the ADA.
Florida’s Second Court of Appeals held the jury should hear both codes and determine the appropriate level of care.
All common areas should be surveyed by a profession in the ADA and Florida’s accessibility code.
Personal liability for directors and possibly no insurance coverage for any such lawsuits.
Krueger v. Quest Diagnostics, Inc., MPN, Ltd. Liab. Co., 44 Fla. L. Weekly D2318 (Fla. 2d DCA September 13, 2019) .

• Associations Beware of Mandatory Arbitration Provisions in Governing Documents.

The Declaration of Covenants, Conditions and Restrictions for the Ellingsworth Community contain a mandatory arbitration provision which requires that disputes be subject to negotiation in good faith, mediation, and a demand for arbitration within thirty days after termination of the mediation proceeding. If this procedure is not followed, the dispute is waived.
When a homeowner modified the landscaping surrounding her home without authorization, the homeowners association demanded restoration to its previous condition. The homeowner refused, and she and the association proceeded to negotiation and mediation. The mediation resulted in an impasse. Rather than initiating arbitration, the homeowners association filed suit in state circuit court where it argued that despite the clear terms of the governing Declaration, Florida Statute § 720.311 allowed for a legal filing, rather than arbitration.
The Court found that the Declaration and § 720.311 both provided for arbitration, but that the Statute did not supersede the Declaration’s mandatory arbitration provision and allow for filing of a lawsuit. Since the Association failed to submit the dispute to arbitration within thirty days of the mediation impasse, it waived its claim against the homeowner. The Association’s claim was dismissed with prejudice and judgment entered in favor of the homeowner.
The Court found the Statute did not supersede the Declaration’s mandatory arbitration provision and allow for filing of a lawsuit. Since the Association failed to submit the dispute to arbitration within thirty days of the mediation impasse, it waived its claim against the homeowner. The Association’s claim was dismissed with prejudice and judgment entered in favor of the homeowner.
Have an attorney review your governing documents and propose amendments to remove antiquated and expensive provisions.
Guan v. Ellingsworth Residential Cmty. Ass’n, No. 5D18-3633, 2019 Fla. App. LEXIS 12940, at *1 (5th DCA Aug. 23, 2019).

• Unit Owners’ Defamation Lawsuit, Board Members Beware.

A condominium association’s attorneys sent a cease and desist letter to a unit owner and provided a copy of the letter to the condominium association client. The unit owner who was the target of the cease and desist letter then sued the association’s attorneys in state circuit court for defamation.
The court dismissed the defamation case because providing a copy of the cease and desist letter to its client did not amount to the publication required under the law of defamation. The court viewed the letter as a statement made by the attorneys to their client as part of the attorney-client relationship and analogous to the situations where there was no publication to a third party because the communication was tantamount to the principal talking to itself.
It is important that community association directors and managers keep in mind their communications with association counsel are protected by the attorney-client privilege, are confidential, and should not be disclosed to third parties, including non-director unit owners. Disclosing such privileged communications to third parties may result in the waiver of the privilege. In addition, it is also important to take precautions to avoid potential defamation suits whenever possible as these are one of the most filed actions in the community association setting. Hoch v. Loren, 44 Fla. L. Weekly D1494 (Fla. 4th DCA June 12, 2019) .

If You Only Read One Article About Community Associations and Solar Panels, Read this One.

Posted on September 11, 2019 by Gerstin

Regulating Solar Panels the Right Way

By Seth Amkraut, Esq.

Click here for .pdf version of this article

With its never ending sunshine and our nation’s collective desire to reduce greenhouse gas emissions, it is little surprise residents in our “Sunshine State” are eager to install solar panels. Unfortunately, solar panel designers did not consider engineering solar panels that match the aesthetics of a home or community. Often times, these “ugly” solar panels result in misguided efforts by community associations to strictly regulate or ban them outright.

Florida law guarantees owners the right to install solar panels on their roofs and community associations are not allowed to ban them. Therefore, trying to enforce either strict rules or an outright solar panel ban invites an expensive lawsuit the association has little chance of winning.

Although outright bans are unenforceable, community associations do have some authority to regulate solar panels. In fact, as long as a community association restriction does not impair the effectiveness of solar panels the restriction will be enforceable. One such restriction often implemented by Florida’s community associations is requiring solar panels to have a southward orientation or within 45 degrees of due south.

In addition to the above, community associations are allowed to conduct due diligence and require documents from owners such as: proof of the contractor’s license and insurance, images or diagrams showing the proposed location and orientation of the solar panels. Additionally, although your community associations may be obligated to repair and maintain your owners’ roofs, owners can be required to maintain and repair their solar panels (as well as any damages they cause to a roof).

Every community association is different and drafting legally compliant solar panel rules is difficult. Therefore, the best way to get started is to speak with your community association’s attorney. Gerstin & Associates can assist your community with drafting a solar panel policy to allow for maximum regulation without running afoul of Florida and federal law. Contact our office today for a free consultation.

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Hurricane Irma and Florida Community Association Emergency Powers.

Posted on September 13, 2017 by Gerstin

Florida Community Association Emergency Powers.

By Joshua Gerstin, Esq.

Click here for .pdf of this article

Now that Hurricane Irma has past, many community associations are trying to determine whether an emergency special assessment can be levied to pay for the cost of cleanup and damage repairs. Luckily, Florida has learned a thing a two from past weather disasters and has enacted has special emergency provisions for the operation of homeowner (F.S. §720.316) and condominium associations (F.S. §718.1265).

Based upon an emergency as described in the statute, a condominium or homeowner association can levy an emergency special assessment for, amongst other items, the mitigation of further damage and debris cleanup. Although the usual 14 day notice for a special assessment is not required, associations are still required to give the members some notice. Further, steps may have to be taken to ratify the emergency action taken once normal operations resume. Therefore, before proceeding, consult with your association’s attorney or the attorneys at Gerstin & Associates.

Although the emergency provisions contained in Florida law are broad, not all semblance of order is suspended. For example, statutory emergency special powers do not allow a condominium or homeowner association to “borrow” from a reserve fund to pay for an emergency without the required owner notice and vote. However, it may be possible to levy a special assessment without the required fourteen-day notice to members. Below are the statutory emergency powers available to Florida’s condominium and homeowner associations:

718.1265 Condominium Association emergency powers.—

(1) To the extent allowed by law and unless specifically prohibited by the declaration of condominium, the articles, or the bylaws of an association, and consistent with the provisions of s. 617.0830, the board of administration, in response to damage caused by an event for which a state of emergency is declared pursuant to s. 252.36 in the locale in which the condominium is located, may, but is not required to, exercise the following powers:

(a) Conduct board meetings and membership meetings with notice given as is practicable. Such notice may be given in any practicable manner, including publication, radio, United States mail, the Internet, public service announcements, and conspicuous posting on the condominium property or any other means the board deems reasonable under the circumstances. Notice of board decisions may be communicated as provided in this paragraph.
(b) Cancel and reschedule any association meeting.
(c) Name as assistant officers persons who are not directors, which assistant officers shall have the same authority as the executive officers to whom they are assistants during the state of emergency to accommodate the incapacity or unavailability of any officer of the association.
(d) Relocate the association’s principal office or designate alternative principal offices.
(e) Enter into agreements with local counties and municipalities to assist counties and municipalities with debris removal.
(f) Implement a disaster plan before or immediately following the event for which a state of emergency is declared which may include, but is not limited to, shutting down or off elevators; electricity; water, sewer, or security systems; or air conditioners.
(g) Based upon advice of emergency management officials or upon the advice of licensed professionals retained by the board, determine any portion of the condominium property unavailable for entry or occupancy by unit owners, family members, tenants, guests, agents, or invitees to protect the health, safety, or welfare of such persons.
(h) Require the evacuation of the condominium property in the event of a mandatory evacuation order in the locale in which the condominium is located. Should any unit owner or other occupant of a condominium fail or refuse to evacuate the condominium property where the board has required evacuation, the association shall be immune from liability or injury to persons or property arising from such failure or refusal.
(i) Based upon advice of emergency management officials or upon the advice of licensed professionals retained by the board, determine whether the condominium property can be safely inhabited or occupied. However, such determination is not conclusive as to any determination of habitability pursuant to the declaration.
(j) Mitigate further damage, including taking action to contract for the removal of debris and to prevent or mitigate the spread of fungus, including, but not limited to, mold or mildew, by removing and disposing of wet drywall, insulation, carpet, cabinetry, or other fixtures on or within the condominium property, even if the unit owner is obligated by the declaration or law to insure or replace those fixtures and to remove personal property from a unit.
(k) Contract, on behalf of any unit owner or owners, for items or services for which the owners are otherwise individually responsible, but which are necessary to prevent further damage to the condominium property. In such event, the unit owner or owners on whose behalf the board has contracted are responsible for reimbursing the association for the actual costs of the items or services, and the association may use its lien authority provided by s. 718.116 to enforce collection of the charges. Without limitation, such items or services may include the drying of units, the boarding of broken windows or doors, and the replacement of damaged air conditioners or air handlers to provide climate control in the units or other portions of the property.
(l)?Regardless of any provision to the contrary and even if such authority does not specifically appear in the declaration of condominium, articles, or bylaws of the association, levy special assessments without a vote of the owners.
(m)?Without unit owners’ approval, borrow money and pledge association assets as collateral to fund emergency repairs and carry out the duties of the association when operating funds are insufficient. This paragraph does not limit the general authority of the association to borrow money, subject to such restrictions as are contained in the declaration of condominium, articles, or bylaws of the association.

(2)?The special powers authorized under subsection (1) shall be limited to that time reasonably necessary to protect the health, safety, and welfare of the association and the unit owners and the unit owners’ family members, tenants, guests, agents, or invitees and shall be reasonably necessary to mitigate further damage and make emergency repairs.

720.316 Homeowner Association emergency powers.—

(1) To the extent allowed by law, unless specifically prohibited by the declaration or other recorded governing documents, and consistent with s. 617.0830, the board of directors, in response to damage caused by an event for which a state of emergency is declared pursuant to s. 252.36 in the area encompassed by the association, may exercise the following powers:

(a) Conduct board or membership meetings after notice of the meetings and board decisions is provided in as practicable a manner as possible, including via publication, radio, United States mail, the Internet, public service announcements, conspicuous posting on the association property, or any other means the board deems appropriate under the circumstances.
(b) Cancel and reschedule an association meeting.
(c) Designate assistant officers who are not directors. If the executive officer is incapacitated or unavailable, the assistant officer has the same authority during the state of emergency as the executive officer he or she assists.
(d) Relocate the association’s principal office or designate an alternative principal office.
(e) Enter into agreements with counties and municipalities to assist counties and municipalities with debris removal.
(f) Implement a disaster plan before or immediately following the event for which a state of emergency is declared, which may include, but is not limited to, turning on or shutting off elevators; electricity; water, sewer, or security systems; or air conditioners for association buildings.
(g) Based upon the advice of emergency management officials or upon the advice of licensed professionals retained by the board, determine any portion of the association property unavailable for entry or occupancy by owners or their family members, tenants, guests, agents, or invitees to protect their health, safety, or welfare.
(h) Based upon the advice of emergency management officials or upon the advice of licensed professionals retained by the board, determine whether the association property can be safely inhabited or occupied. However, such determination is not conclusive as to any determination of habitability pursuant to the declaration.
(i) Mitigate further damage, including taking action to contract for the removal of debris and to prevent or mitigate the spread of fungus, including mold or mildew, by removing and disposing of wet drywall, insulation, carpet, cabinetry, or other fixtures on or within the association property.
(j) Notwithstanding a provision to the contrary, and regardless of whether such authority does not specifically appear in the declaration or other recorded governing documents, levy special assessments without a vote of the owners.
(k) Without owners’ approval, borrow money and pledge association assets as collateral to fund emergency repairs and carry out the duties of the association if operating funds are insufficient. This paragraph does not limit the general authority of the association to borrow money, subject to such restrictions contained in the declaration or other recorded governing documents.

(2) The authority granted under subsection (1) is limited to that time reasonably necessary to protect the health, safety, and welfare of the association and the parcel owners and their family members, tenants, guests, agents, or invitees, and to mitigate further damage and make emergency repairs.

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