Hurricane Dorian & the Statutory Emergency Powers of Florida’s Community Associations.

Posted on August 30, 2019 by Gerstin

By Joshua Gerstin, Esq.

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 from Hurricane Dorian. 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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2019 Florida Condominium & Homeowner Association Legislative Update

Posted on July 15, 2019 by Gerstin

2019 Florida Condominium & Homeowner Association Legislative Update

Click here for .pdf version of this article

Based on the seemingly low media profile of recently passed legislation pertaining to community associations, many people wrongfully assume the latest session of Florida’s legislature will have little or no impact on their community association. To the contrary, although lacking in “name plate” legislation, the following recently passed legislation goes into effect on July 1, 2019 (unless otherwise noted) and will have a meaningful impact on Florida’s condominium and homeowner associations:

HB 829 – Attorney Fees in Challenges to Local Ordinances. Thanks to HB 829 it is now easier for your community association to “fight city hall”. Attorneys’ fees awards are available to prevailing parties in lawsuit brought against a local ordinance that allegedly violates state or Federal preemptions. Click here for a copy of the new law.

HB 1159 – Tree Trimming. Other than mangrove trees, local governments cannot require a permit for pruning, trimming and removal of vegetation and trees, if the tree or vegetation is certified as presenting a danger by the International Society of Arboriculture. Local governments are also forbidden from requiring the removed trees or vegetation to be replanted. A property owner year-round can request an electric utility maintain vegetation on property adjacent to the electric utility’s right-of-way without notice or permission from the local government. This would only apply to situations when it is necessary for power restoration or when the vegetation is threatening to cause a power outage. Click here for a copy of the new law.

SB 82 – Vegetable Garden Preemption. Local governments are prohibited from regulating vegetable gardens on residential property. This prohibition does not apply to general regulations that are not specific to vegetable gardens, such as ordinances regulating fertilizer, water use and invasive species. Click here for a copy of the new law.

SB-1666 – Anchoring & Mooring. The legislation directs the Florida Fish & Wildlife Commission to study impacts of long term storage of vessels anchored and moored outside of mooring fields; create “no-discharge zones” for sewage dumping near certain waterbodies near rural areas; require boater safety identification cards for boats 10 horsepower and above; and designate a portion of registration fees collected by counties for the Marine Resources Conservation Trust Fund. Click here for a copy of the new law.

HB 7103 – Sprinkler Retrofitting. Allows condominium associations to continue to vote to waive fire sprinkler system retrofitting requirements until January 1, 2024, at which time local authorities may require a condominium association to retrofit fire sprinkler systems or install an engineered life safety system. Click here for a copy of the new law.

HB 369 – Sober Homes. The bill continues to tighten up sober home standards and address unintended consequences of previously passed legislation. The bill exempts “Oxford Homes” from certification requirements, strengthens patient brokering and deceptive practices statutes, provides for certification and background checks of peer specialists, expands background check requirements for recovery residence administrative personnel and expands violations eligible for exemption, and covers residences that have day/night treatment centers. Click here for a copy of the new law.

SB- 182 Medical Marijuana. If it’s for medical purposes, does it fall under the ADA? If so, does your community association have to allow marijuana smoking where cigarette smoking is permitted? The legislation permits the use of smokable medical marijuana. The bill allows minors to smoke medical marijuana if they are terminally ill and smoking marijuana is approved by a second physician. Patients are limited to 2.5 ounces every 35 days, unless the Department of Health approves an increase at a patient’s request. Click here for a copy of the new law.

HB-311 Autonomous Vehicles. Is your community association “drone and autonomous vehicle ready”? Click here to obtain our report on how your community association can maximize the inevitable onslaught of drones and autonomous vehicles. The new law requires seeks to have Florida lead the country in autonomous vehicle technology by establishing: minimum insurance thresholds, a prohibition on levying of fines or fees by local entities (with the exception of seaports and airports), minimum driving conditions for the use of any automatic driving systems and on-demand autonomous networks. Click here for a copy of the new law.

Stay one step ahead of new legislation, recent case law and new developments that impact your community association.

} Name:

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} Community name:

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} Fax this completed page to (561) 750-8185 or email the above information to joshua@gerstin.com.

2018 Florida Community Association Legislative Update

Posted on April 1, 2018 by Gerstin

Click here for .pdf version

The following will become law on July 1, 2018.

Fines and Suspensions – Condominiums § 718.303
Now mirrors Florida HOA law- A condominium association’s committee of unit owners who determine whether to confirm or reject a fine or suspension levied by the board must be made up of at least three members who are appointed by the board, and are not officers, directors, or employees of the association, or a spouse, parent, child, brother, or sister of an officer, director, or employee of the association. §718.303(3)(b). Fla. Stat.

Now mirrors Florida HOA law – A condominium association’s committee of unit owners who determine whether to confirm or reject a fine or suspension levied by the board must approve the fine or suspension by majority vote, otherwise the association may not impose the fine or suspension. §718.303(3)(b). Fla. Stat.

Now mirrors Florida HOA law- The condominium and cooperative association must provide written notice of any fine or suspension by mail or hand delivery to the unit owner and, if applicable, to any tenant, licensee, or invitee of the unit owner. §718.303(3)(b) Fla. Stat.

A fine approved by the committee of a condominium association is due 5 days after the date of the committee meeting at which the fine is approved. § 718.303(3)(b).

Fines and Suspensions – HOAs §720.305(2)(b), Fla. Stat.
A fine approved by the committee of an HOA, condominium, or cooperative association is due 5 days after the date of the committee meeting at which the fine is approved. § 718.303(3)(b). HOA Elections – § 720.306

If an election is not required because there are fewer or an equal number of candidates than vacancies, and nominations from the floor are not required, then write-in nominations are not permitted and the candidates will commence service on the board of directors, regardless of whether a quorum is attained at the annual meeting.

Payment of HOA Assessments – § 720.3085
The application of payments in HOA law (first to the interest accrued, then to any administrative late fee, then to any costs and reasonable attorney fees, and then to the delinquent assessment) applies notwithstanding the Uniform Commercial Code’s regulations on restrictive notations placed on or accompanying a payment. 720.3085(3)(b), Fla. Stat. This is intended to clarify existing law.

HOA Amendments to Governing Documents – § 720.306
A proposal to amend the governing documents of an HOA must contain the full text of the provision to be amended, with underlining of proposed new language and striking of proposed deleted language, unless the proposed change is so extensive and then a notation must be inserted indicating that the proposed amendment has substantial rewording. This is similar to condominium association law.

An amendment is effective when recorded in the public records of the county in which the community is located.
An immaterial error or omission in the amendment process does not invalidate an otherwise properly adopted amendment.

Required notices for amendments to the governing documents must be mailed or delivered to the parcel owner’s mailing address on the property appraiser’s website, or electronically transmitted if the parcel owner has consented in writing to receive notice by electronic transmission. 720.306(1)(g), Fla. Stat.

Communication by HOA Board Members –§ 720.303(2)(a).
Members of an HOA’s board of directors are allowed to use e-mail as a means of communication. However, a board member may not cast a vote on an association matter via e-mail. This mirrors condominium association law.

Notice of Board Meetings – Condominiums §718.112, Fla. Stat.
Condominium associations are allowed to adopt rules for noticing all board and unit owner meetings and meeting agendas on a website if the time requirements for physically posting the board meetings are met. Any rule adopted for website notice must include a requirement the association send an electronic notice in the same manner as a notice for a meeting of the members, which must include a hyperlink to the website where the notice is posted, to all unit owners whose e-mail addresses are part of the official records. Notice by website must be in addition to the other notice requirements. §718.112(2)(c)1, §718.112(2)(d)3. Fla. Stat.
A condominium unit owner who consents to receiving notice by electronic transmission is responsible for removing or bypassing any filters that block receipt of mass e-mails sent to members on behalf of the association for the purpose of giving notice. §718.112(2)(d)6. Fla. Stat.

Notice of Board Meetings – Homeowner Associations §718.112.
An HOA is allowed to give notice by electronic transmission to any parcel owner who provided written consent and a fax number or e-mail address to the HOA for such purpose. 720.303(2)(c)1., Fla. Stat.

Official Records of Condominiums § 718.111.
The deadline for condominium associations to make records available to unit owners is extended from 5 working days to 10 working days. §718.111(12)(b), Fla. Stat.
Electronic records relating to voting is included in the list of official records that must be kept by condominium and cooperative associations. §718.111(12)(a)12, Fla. Stat.
A condominium association must permanently maintain the following documents from the inception of the association (instead of just for at least 7 years):
A copy of the articles of incorporation, declaration, bylaws and rules of the association;
Meeting minutes; and A copy of the plans, permits, warranties, and other items provided by the developer at turnover. 718.111(12), Fla. Stat.

Condominium Board Members – § 718.112.
The provision that condominium association board members may not serve more than four consecutive 2-year terms is repealed. Condominium association board members may not serve more than 8 consecutive years, unless approved by an affirmative vote of unit owners representing two-thirds of all votes cast in the election or unless there are not enough eligible candidates to fill the vacancies. Board member terms are 1 year unless a longer term is permitted by the bylaws or articles of incorporation. 718.112(2)(d)2., Fla. Stat.

A cooperative director or officer is deemed to have abandoned their office if the officer or director is more than 90 days delinquent in the payment of any monetary obligation to the association. 719.106(1)(m), Fla. Stat. This mirrors condominium association law.

In residential cooperatives of more than 10 units, co-owners of a unit may not serve as members on the board at the same time unless the co-owners own more than one unit or there are not enough eligible candidates to fill vacancies on the board. 719.106(1)(a)1., Fla. Stat. This mirrors condominium association law.

Condominium Board Member Recall – § 718.112.
A board must hold a meeting within 5 business days of the unit owners’ vote or receiving a written agreement, in order to determine if the vote or written agreement is facially valid. If the board determines the vote or written agreement is facially valid, the recall becomes effective upon the conclusion of the board meeting. 718.112(2)(j), Fla. Stat.

If the board determines that the recall is not facially valid, the unit owner representative may file a petition for arbitration with the Division of Florida Condominiums, Timeshares, and Mobile Homes of the Department of Business and Professional Regulation (the “Division”), challenging the board’s determination on facial validity. 718.112(2)(j)4.

A recalled board member may challenge the facial validity of the written agreement to recall, the ballots filed, or the substantial compliance with the procedural requirements for the recall, by filing a petition with the Division. 718.112(2)(j)6.

If an arbitrator determines a board member’s recall is invalid, the recall is null and void and the board member must be immediately reinstated. A board member who successfully challenges a recall is entitled to reasonable costs and attorney fees from the respondents. An arbitrator may award reasonable costs and attorney fees to the respondents if the arbitrator determines a recalled board member’s request for arbitration is frivolous. 718.112(2)(j)6., Fla. Stat.

Condominium Websites – § 718.111.
The deadline for condominium associations to post certain documents to its website is extended from July 1, 2018 to January 1, 2019.

A condominium association’s failure to post required documents does not invalidate any action or decision of the board or its committees. 718.111(12)(g)4.

After bidding for materials, equipment, or services has closed, a condominium association must post on its website a list of bids received within the past year.

Summaries of bids for materials, equipment, or services must be posted on the website only if they exceed $500. A condominium association may post the complete copies of the bids in lieu of summaries of the bids.

Instead of posting on its website proposed financial reports to be considered at a meeting, the association must post any monthly income or expense statement to be considered at a meeting.

A condominium association or its agent is not liable for disclosing protected or restricted information unless the disclosure was made with a knowing or intentional disregard of the protected or restricted nature of the information.

Condominium Financial Reporting – § 718.111.
If a condominium association fails to comply with a request from the Division of Florida Condominiums, Timeshares, and Mobile Homes of the Department of Business and Professional Regulation (the “Division”) to provide, within five business days, a copy of the association’s financial report to the Division and to a unit owner who reports the association’s failure to provide a copy of such report within the required time, the association may not waive the annual financial reporting requirements for the fiscal year in which the unit owner’s request was made and the following fiscal year.

Alterations or Additions to Condominium Property – § 718.113.
If a condominium’s declaration does not provide a procedure to approve material alterations or substantial additions to condominium property, then approval by 75 percent of the voting interests must be obtained before the material alterations or substantial additions to the condominium property begin. This applies to condominium associations existing on July 1, 2018. 718.113(2), Fla. Stat.

Condominium Bulk Assignees and Bulk Buyer – § 718.707.
The time limit on acquisition of parcels for classification as a bulk assignee or bulk buyer is removed, extending the applicability of the bulk assignee and bulk buyer provisions indefinitely.

Electric Vehicles in Condominium Associations – § 718.113, § 718.121.
A condominium association may not prohibit a unit owner from installing an electric vehicle charging station within the boundaries of the unit owner’s limited common element parking area. Notwithstanding, the installation of an electric vehicle charging station is subject to a number of restrictions in the statute.
The installation of an electric vehicle charging station may not be the basis for filing a construction lien under Chapter 713, Florida Statutes, against the association, but a construction lien may be filed against the unit owner.

HB 7087

Inter-spousal Transfers: Exempts the transfer of homestead property between spouses from documentary stamp tax charges.

Multi-Parcel Ad Valorem Taxation: Among its provisions is the multi-parcel ad valorem tax initiative permitting the vertical subdivision of real property, and it also includes an abatement of taxes for residential improvements rendered uninhabitable by hurricanes during the 2017 season.

Stay one step ahead of new legislation, recent case law and new developments that impact your community association.

Name: _________________________________________________

Mailing address: ________________________________________

E-mail address: _________________________________________

Community name: ________________________________________

Position on board, if any: __________________________________
Fax this completed page to (561) 750-8185 or email the above information to joshua@gerstin.com.

Defaming Directors, How to Deal With Abusive Members in Your Community Association.

Posted on December 6, 2017 by Gerstin

Click here to download the full presentation

Presented at the Delray Beach Alliance on December 5, 2017.

An easy to understand primer on the laws of defamation for The State of Florida.

Practical methods on how to deal with hostile community association members.

How to deal with hostile residents. How to know if a member has defamed a director of your community association.

Click here to download the presentation

New Palm Beach County Flood Zone Maps Now Available

Posted on August 7, 2017 by Gerstin

Palm Beach County homeowner associations, condominium associations, commercial and residential real estate owners can now type in their property address at: http://maps.co.palm-beach.fl.us/cwgis/?app=floodzones and immediately view their flood zone. The press release from Palm Beach County regarding the new flood insurance map is as follows:

New Flood Zone Maps Now Available on the Palm Beach County Website

For more information contact: Building Division

561-233-5100

For this first time since 1982 the Flood Insurance Rate Maps (FIRMs) for Palm Beach County have been revised by the Federal Emergency Management Agency (FEMA). The new FIRMs for Palm Beach County will go into effect on 10/5/2017.

To help you view the current and pending flood zone information for your property, Palm Beach County has created a Flood Zone Map Viewer Application! You can search by address and view the FIRMs for your property by visiting http://maps.co.palm-beach.fl.us/cwgis/?app=floodzones or look for the link on our homepage at www.pbcgov.com.

Please note that this tool reports the flood zone designations that touch your property. Just because a Special Flood Hazard Area touches your property, that does not mean that your structure is located within the flood zone. It should also be noted that the flood elevations shown on the new maps are in a different Vertical Datum (North American Vertical Datum 1988) than the old maps were (National Geodetic Vertical Datum 1929). If you are comparing the new maps to a previous survey a conversion between two datum is required.

If you reside in the unincorporated area and are uncertain about your flood zone designation, please call the Palm Beach County Flood Information Hotline at 561-233-5374. If you reside in a municipality, you should contact your local floodplain administrator. For more information on the National Flood Insurance Program visit www.fema.gov/national-flood-insurance-program.

It Has Begun, 2017 Florida Condominium Association Legislation

Posted on May 9, 2017 by Gerstin

It’s only the beginning, Florida’s 2017 Pending Condominium Association Legislation

-By Joshua Gerstin, Esq.

Recently, Florida’s House and Senate passed a bill drastically changing the laws related to condominiums. Considering the public landscape of the various issues the bill addresses, it is unlikely Governor Rick Scott will veto the bill. Therefore, condominium associations should begin to familiarize themselves with these new laws as soon as possible.

Following are changes to Chapter 718 from the recently passed Senate Bill 1682, additional legislative changes affecting community associations are expected from the legislature in the near future (will be detailed upon passage in subsequent articles):

1. The term “kickback” was inserted, although undefined, in the list of prohibitions against a director when choosing a vendor for a condominium association. In certain circumstances, kickbacks or other prohibited conduct can now be classified as a crime.

2. Theft, embezzlement, forgery of ballot envelopes, election fraud, the destruction of official records in the furtherance of a crime and the acceptance of kickbacks are all classified as crimes.

3. A condominium association is forbidden from hiring an attorney that also represents the association’s management company.

4. Board members, the property manager and the property management company are prohibited from purchasing a property at a foreclosure sale resulting from the association’s foreclosure.

5. No later than July 1, 2018, condominium associations with 150 or more units must have a website dedicated to the association’s activities on which required notices, records and documents can be posted. The website must contain a members only, password protected page accessible only to unit owners and employees of the association. The legislation contains an extensive list of documents that must be posted to the Association’s website.

6. If permitted by the Association’s Bylaws, term limits of four consecutive two year terms can be imposed on a director and require a 2/3 majority to reelect.

7. The Board certification requirement for recalls is removed in its entirety. Directors are required to step down at a meeting five business days after a recall petition with the requisite votes is submitted.

8. An association or any officer, director, employee, or agent of an association may not use a debit card issued in the name of the association, or which is billed directly to the association, for the payment of any association expense. Use of a debit card issued in the name of the association or billed directly to the association for any expense that is not a lawful obligation of the association may be prosecuted as credit card fraud pursuant to s. 817.61.

9. A condominium association cannot employ or contract with any service provider owned or any person who has a financial relationship with a board member or officer, or a degree of consanguinity by blood or service provider in which a board member or officer, third degree of consanguinity by blood or marriage of a board member or officer, owns less than 1 percent of the equity shares of the service provider.

10. Arbitrators hired by the Division are mandated to hold a hearing within thirty days of confirmation of a dispute and issue a written opinion thirty days after the hearing.

11. Management companies are required to disclose financial interests in any vendor they recommend to an association

12. Management companies are required to turn over all association records when their contracts expire.
A determination of whether the Division has adequate funding to handle its increased responsibilities remains an open question. Nonetheless, Governor Rick Scott is expected to sign Senate Bill 1682. Other bills affect community associations are winding their way through the legislature. We will keep you updated as further legislation develops.

Subscribe to the Gerstin & Associates Newsletter

Name: _________________________________________________

Mailing address: ________________________________________

E-mail address: _________________________________________

Community name: ________________________________________

Position on board, if any: __________________________________

Fax this completed page to (561) 750-8185 or email the above information to: joshua@gerstin.com

Vaccine Discovered to Prevent Zombie Homes from Plaguing Florida’s Community Associations!

Posted on May 3, 2017 by Gerstin

Two recent Florida Appellate Court decisions offer hope for community associations plagued with zombie homes.

-By Joshua Gerstin, Esq.

Within the last decade, almost every community association has encountered the same problem, a lender forecloses on an owner and nothing happens for years. Either the owner vigorously contests the lender’s foreclosure, the lender simply does not move forward or both. While the lender’s case meanders through the courts, the association is left with a “zombie house”, an abandoned home lowering property values and/or an owner no longer paying his/her maintenance assessments. Until now, once a lender filed a foreclosure lawsuit a community association could do nothing other than sit and wait, sometimes for years.

In two recent Florida appellate court cases a vaccine for this zombie house problem was discovered, the community association’s “relation back” provisions in its Declaration. In Fountainspring II Homeowners Association, Inc. v. Veliz, Case No. 4D-3408 (Fla. 4th DCA March 15, 2017), and Jallali v. Knightsbridge Village Homeowners Association, Inc., Case No. 4D15-2036 (Fla. 4th DCA Jan. 4, 2017), the Courts ruled the association was permitted to begin its own foreclosure action after the lender’s foreclosure had already begun (and stalled). In addition to the Florida laws governing both condominium and homeowner associations, the Courts found the governing documents of each association to be a major factor in their decisions.

According to both the Fountainspring and Jallali cases, well-drafted “relation back” provisions in a community association’s governing documents allow community associations to foreclose on an owner after the lender foreclosure lawsuit has already begun. Although the association’s lien and foreclosure remains subordinate to the lender’s foreclosure, the association can drastically cut the effect and expense of a zombie home. Properly worded “relation back provisions” in a community association’s governing documents is another tool available to community associations struggling to keep costs down and property values up.

Please contact our office for an evaluation to determine whether your association’s governing documents have the necessary “relation back” provisions to benefit from these recent Florida court decisions.

Subscribe to the Gerstin & Associates Newsletter

Name: _________________________________________________

Mailing address: ________________________________________

E-mail address: _________________________________________

Community name: ________________________________________

Position on board, if any: __________________________________

Fax this completed page to (561) 750-8185 or email the above information to: joshua@gerstin.com

2017 Pending Florida Community Association Legislation

Posted on March 24, 2017 by Gerstin

Click here for PDF version of this article

The weather outside is cool in Florida, but the heat is surely on community associations, their directors, officers and property managers in Florida’s 2017 legislative session.

SB 294 (Condos, Cooperatives, HOAs)

The bill requires associations with less than 50 units to prepare a financial report based on the association’s annual revenues. In addition, if an association fails to provide the financial report to the owners if requested, the owners are prohibited from waiving the financial report for three (3) consecutive years and must file a copy with the State for those three (3) years.

This bill eliminates the option for associations with fewer than 50 units and more than $150,000 in annual revenue to submit less comprehensive annual financial statements.
Penalizes association with enhanced financial reporting requirements if they fail to provide owners with annual financial reports upon request.

HB 295 (HOAs)

Increases penalties for not providing access to official records to $500 per day for up to 30 days.
Imposes financial liability on property managers for failing to provide proper access to association official records.
Revises the timeframe for members to take control of the board of directors from the developer.
Provides for binding arbitration of disputes involving assessments, official records, and enforcement of covenants, rules, and restrictions.
Requires home sellers to provide prospective buyers with the association’s governing documents and operating budget at least 7 days before closing, and allows buyers to terminate the contract within 3 days after receipt of the documents.

SB 318 (HOAs)

This bill provides for a new, alternative procedure for homeowners associations to preserve their governing documents under Florida’s Marketable Record Title Act.
At the first board meeting following each annual meeting of the members, the board of directors must consider whether to preserve the association’s governing documents under Florida’s Marketable Record Title Act.
At least every 5 years, homeowners association must record a notice in the public records containing specific information including, the name and address of the association, a list of its recorded governing documents, contact information for the current property manager, and a legal description of the community.

SB 398 (Condos, Cooperatives, HOAs)

Requires estoppel letters to be issued within 10 days of a request, and caps fees at $200 An additional $100 may be charged if the estoppel letter is requested on expedited basis (3 business days). An additional $200 may be charged if the owner is delinquent.
Creates a maximum fee schedule for multiple estoppel letter requests.
Requires estoppel letters to include a long list of various information beyond standard financial information.
Association must publish on their website the name and address/email address of person responsible for receiving estoppels requests.

SB 744 (Condos, Cooperatives, HOAs)

Condos

Requires bids for work to be performed be maintained in the official records for 1 year.
Eliminates the July 1, 2018 deadline to be classified as a bulk buyer or bulk assignee.

Cooperatives

Prohibits co-owners from serving on the board simultaneously in communities with more than 10 units, unless there not enough eligible candidates to fill all board vacancies.
Allows board members to communicate via email, but prohibits voting via email.
Directors and officers who are over 90 days delinquent in any monetary obligation to the association are deemed to have abandoned their position.

Condos & Cooperatives

Includes electronic records relating to unit owner voting in the list of official records of the association.
Eliminates the option for associations with less than 50 units to prepare a report of cash receipts and expenditures in lieu of complete financial statements.
Removes a restriction prohibiting associations from waiving certain financial reporting requirements for more than 3 consecutive years.
Authorizes the board to adopt a procedure for posting meeting notices and agendas on the association website.
Clarifying that associations under 75 feet high are not required to undergo fire sprinkler/life safety retrofitting and do not need to conduct an opt-out vote.
Extends the deadline to opt-out or apply for a permit for fire sprinkler/life safety retrofitting to December 31, 2018, and extends the deadline to complete fire sprinkler/life safety retrofitting to December 21, 2021.
Clarifies certain rules and procedures for fire sprinkler/life safety retrofitting.

HOAs

Allows board members to communicate via email, but prohibits voting via email.

Requires the annual budget to include reserve accounts for capital expenditures and deferred maintenance which the governing documents require the association to undertake and which exceed $10,000.
Allows a developer to waive reserves until the end of the second fiscal year after the declaration is recorded, after which, only a majority of non-developer owners can waive reserves.
Revises certain voting procedures and calculations for reserve accounts.
Imposes certain limitations on adopting budgets that exceed the prior year budget by more than 15%.
Prohibits write-in nominations at an annual meeting when no election is required because the number of candidates does not exceed the number of vacancies, unless nominations from the floor are required by the bylaws.

SB 950 ( HOAs)

Prohibiting fines from being imposed on a home for 6 months after the death of the owner.
Prohibiting late fees and interest on delinquent assessments for the first year after the death of the parcel owner.
If a fine is imposed against a home after the owner dies, the association must provide written notice to the executor of the owner’s estate at least 5 times by certified mail.

SB 1186 ( HOAs)

Specifies procedures for amending the declaration.
States that declaration amendments restricting rentals only apply to owners who consent to the amendment, or who purchase their home after July 1, 2017.

SB 1258 (Condos)

Imposes fines on board members and officers who knowingly violate any association bylaw or the Condominium Act: $250 for the first violation, $500 for the second violation, and $1,000 for third and subsequent violations. After 3 or more violations, the Department of Business and Professional Regulation may issue an order recalling the director or officer.

SB 1520 (Condos)

This bill makes it more difficult to terminate a condominium association.
Increases the minimum threshold for approving termination a condominium from 80 percent to 90 percent of the total voting interests.
Lowers the threshold for rejecting condominium termination from 10 percent to 5 percent of the total voting interests.
Expands the definition of owners who are entitled to receive fair market value for their condominium unit.

SB 1650 (HOAs)

Allows disputes relating to amendments of the governing documents to be resolved by mandatory arbitration in lieu of presuit mediation.

SB 1652 (HOAs)

Creates specific election procedures for communities with 7500 or more homes.

SB 1682 (Condos)

Prohibits attorneys from representing both an association and its management company.
Prohibits board members and management companies from acquiring units at a foreclosure sale arising from the association’s foreclosure of the unit, or via deed in lieu of foreclosure.
Adds bids for materials, equipment, or services to the list of association official records.
Allows tenants and authorized representatives of members to inspect association official records.
Any board member who knowingly, willfully, and repeatedly refuses to comply with a valid request to inspect the official records is guilty of a second degree misdemeanor
Any person who knowingly or intentionally defaces or destroys accounting records, or who fails to create or maintain required accounting records in order to harm the association or any member, is guilty of a first degree misdemeanor.
Any person who knowingly and willfully refuses to release or produce association official records to facilitate a crime or to prevent a crime from being discovered, is guilty of a third degree felony.
Requiring associations with over 500 units to post many types of official records on its website, including the governing documents, financial statements, contracts with third parties, documents to be considered at membership meetings and notices of such meetings.
Allows board members to serve 2-year terms only if permitted in the bylaws or articles of incorporation. Prohibiting board members from serving more than 4 consecutive 2-year terms unless approved by an affirmative vote of 2/3 of the entire membership
Modifies director recall procedures.
Restricts association from contracting or employing service providers in which a board member has a financial stake.
Makes it a felony to engage in fraudulent voting activities, aid another person in committing fraudulent voting activities, or help someone avoid being caught for committing fraudulent voting activities.
Prohibits any party who provides maintenance or management services to the association from owning more than 50% of the units and purchasing any property subject to a lien of the association.
Sets forth detailed disclosure requirements for directors with possible conflicts of interest
A unit owner who is 90 days delinquent can be suspended from voting only if the delinquency exceeds $1,000 and requires 30-day notice.

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Attorney advises communities on support animals

Posted on January 17, 2017 by Gerstin

SunSentinel, January 17, 2017. Attorney Joshua Gerstin recently provided Alliance of Delray Residential Associations members with advice on medically necessary pets, making decisions through emails and governing documents, topics that community board of directors will face this year. Read full article here.

To watch the video presentation or to download the presentation by Joshua Gerstin, Esq. click here.

Video! 2017 Legal Update: Medically Necessary Pets, Directors’ Emails & Enforcement of Governing Documents.

Posted on January 3, 2017 by Gerstin

Please click here for a copy of the January 4, 2017 presentation of:

Medically Necessary Pets
Board of Directors Insider’s Guide to Email &
Achieving Utopia Through the Enforcement of Community Association Documents.

Presented by Joshua Gerstin, Esq. for the Delray Alliance of Residential Associations.

Please click here for a copy of the January 4, 2017 presentation.