Sometimes you just never know how truly important it is to enforce your community association’s guest policy.
Author: Gerstin
Pending Florida Legislation Lets HOAs Foreclose Faster If Assessments Are Not Paid
2013 Pending Florida Legislation – Real Estate, Community Associations, Business Litigation & Transactions
Off to a fast start in 2013, the following legislation has already been filed for consideration. The following 2013 pending legislation relates to Real Estate, Community Associations, Business Litigation & Transactions. Check back often as this information will be updated as more legislation is filed:
| HOUSE BILL 73 General Bill by Moraitis for Complete Bill Text: | ||
| Residential Properties: Exempts certain elevators from specific code update requirements; revises provisions relating to terms of condominium board of administration members; revises condominium unit owner election & condominium association meeting notice & recordkeeping requirements; provides requirements for condominiums relating to election challenges, recalls, & installation of impact glass or other code-compliant windows; provides requirements for condominiums created within condominium parcels; revises provisions relating to imposing remedies; revises liability of unit owners; provides liability limitations of certain first mortgagee or its successor or assignees; revises records not accessible to members or parcel owners; revises provisions relating to amendment of declarations; provides criteria for consent to amendment; requires notice to mortgagees regarding proposed amendments. | ||
| Effective Date: July 1, 2013 | ||
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Last Event: Filed on Friday, December 28, 2012 1:18 PM
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SENATE BILL 100 By Detert For Complete Bill Text Click Here: Florida Pending Legislation SB100
Employment Practices; Prohibiting an employer from using a job applicant’s credit report or credit history to make certain hiring, compensation, or other employment decisions; providing specific situations where an employer may use such information, etc.
Last Action: 01/07/2013 On Committee agenda– Commerce and Tourism, 01/15/13, 10:00 am, 110 Senate Office Building
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Senate Bill 112 By Senator Dean For Complete Bill Text Click Here: sb112
Property Fraud; Prohibiting a person from filing or causing to be filed, with intent to defraud another, a document relating to the ownership, transfer, or encumbrance of or claim against real or personal property, or any interest in real or personal property, which the person knows contains a material misstatement, misrepresentation, or omission of fact; providing criminal penalties; providing that a person who fraudulently records a construction lien is subject to specified fraud provisions, etc.
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Senate Bill 120, By By Senator Latvala For Complete Bill Text Click Here: sb120
Condominiums; Allowing condominium units to come into existence regardless of requirements or restrictions in a declaration; extending the amount of time that a clerk may hold a sum of money before notifying the registered agent of an association that the sum is still available and the purpose for which it was deposited; changing the requirements relating to the circumstances under which a declaration of condominium or other documents are effective to create a condominium; revising the conditions under which a developer may amend a declaration of condominium governing a phase condominium; providing for an extension of the 7-year period for the completion of a phase, etc.
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| HOUSE BILL 87 General Bill by Passidomo (CO-SPONSORS) Moraitis FOR COMPLETE BILL TEXT FOR HB 87 Click Here: 314house_bill_87 | ||
| Mortgage Foreclosures: Revises limitations period for commencing action to enforce claim of deficiency judgment after foreclosure action; provides for applicability to existing causes of action; specifies required contents of complaint seeking to foreclose on certain types of residential properties; authorizes sanctions against plaintiffs who fail to comply with complaint requirements; requires court to treat collateral attack on final judgment of foreclosure on mortgage as claim for monetary damages; prohibits court from granting certain relief affecting title to foreclosed property; provides for construction relating to rights of certain persons to seek relief or pursue claims against foreclosed property; limits amount of deficiency judgment; revises class of persons authorized to move for expedited foreclosure; provides requirements & procedures with respect to order directed to defendants to show cause; provides failures by defendant to make filings or appearances may have legal consequences; requires court to enter final judgment of foreclosure & order foreclosure sale; provides for liability of persons who wrongly claim to be holders of or entitled to enforce a lost, stolen, or destroyed note & cause mortgage secured thereby to be foreclosed. | ||
| Effective Date: upon becoming a law | ||
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Last Event: Filed on Thursday, January 03, 2013 10:05 AM
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Weir Gate Operation Guide for South Florida Community Associations
The Lake Worth Drainage District has issued a new ” how-to” guide for for Weir Gate operation at South Florida community associations. This helpful guide is a great resource for both homeowner and condominium associations tasked with the important job of safely and efficiently operating a weir gate. Considering the instability of South Florida’s weather, along with its flat, low lying landscape, knowing how to operate your community associations weir gate can go a long way in avoiding or preparing for rising water. The guide can be found here: 2922012_lwdd_guidelines_for_associations
Commercial Landlord’s Blanket Refusal to Allow Sublease Fails
Recently, in the case of Siewert V. Casey, 37 Fla. Weekly D527 (Fla. 4th DCA 2012), Florida’s Fourth District Court of Appeal illustrated the pitfalls and “time bombs” awaiting commercial landlords using “boilerplate” or outdated leases. In Siewert, the landlord’s commercial lease required the tenant to obtain the landlord’s written consent to an assignment or sublease. The lease did not contain any specific standards (financial ability, credit score, etc.) governing the landlord’s approval process. Nevertheless, the landlord’s blanket refusal to allow a sublease was considered by the Court a breach of the lease:
When a lease contains a boilerplate clause requiring the landlord’s consent for any
proposed sublease—without specific standards governing the landlord’s approval—
the landlord may not then arbitrarily withhold approval of a sublease.
This decision stems in part from Florida’s “implied covenant of good faith”. The implied covenant of good faith is a common law doctrine requiring contracting parties to fulfill their contractual obligations in good faith.
To avoid suffering a similar fate, commercial landlords should seek assistance from an attorney in maintaining up to date master templates and leases. A lease should always be as short and concise as possible, while at the same time meeting the latest standards of Florida law and the landlord’s specific needs. The full text of the Court’s decision can be found here: Siewert V. Casey, 37 Fla. Weekly D527 (Fla. 4th DCA 2012).
Hotel and Community Association Pools Given a Temporary ADA Reprieve
Recently, the Department of Justice adopted final rules relating to the provision of accessible entry and exit to existing swimming pools, wading pools, and spas (pools built before March 15, 2012). If you have not heard by now. . . the new rules required all public use pools (hotel, community associations, etc.) to conform with new ADA regulations. In essence, the entry and exit to a public use pool has to be handicap accessible (a lift). These regulations were due to take affect on March 15, 2012 but were postponed due to an outcry from small business owners because of the high cost of compliance in such a short period of time. Today the implementation of these same regulations were postponed again. However, the postponement only applies to existing pools, in which the compliance date until January 31, 2013. All new pool construction must be in compliance with the new ADA rules.
Hotels, motels and community associations with public use pools should consult with their attorney to ensure compliance with these new regulations (as well the multitude of other regulations pending or in effect). Non-compliance is always more costly than complying. A brief primer for small businesses attempting to navigate ADA regulations can be found here: http://www.ada.gov/in
Hope & Desire Not Enough for Tortious Interference Claim In Florida
Florida’s Fourth District Court of Appeals: An existing relationship is required before bringing a claim for tortious interference with a business relationship. Hoping that one day you will have, or could have had, a business relationship is not enough.
Click here for the Florida 4th DCA opinion
Attorneys’ Fee Provisions in Contracts at Risk Upon Appeal
Specificity prevails over tired boilerplate.
Attorneys’ fees incurred performing appellate work will not be awarded to the prevailing party if the contract or document forming the basis for an attorneys’ fee award does not provide for appellate attorney’s fees.
Emails Confer Long Arm Jurisdiction for Litigation
Regardless of whether the sender intended to target Florida residents, an email sent to a group, some of whose members are residents of Florida, confers long arm jurisdiction under Fla. Stat. § 48.193 (1)(b). In turn, a Florida resident can file a lawsuit against the sender of the e-mail in Florida. Price v. Kronenberger, — So.3d —-, 2009 WL 5150236 (Fla. 5th DCA 2009).
2011 Florida Community Association Legislative Update
Each of the newly enacted 2011 laws in The State of Florida that impact you and your condominium or homeowner association. These laws went into effect on July 1, 2011.
Click here for the easy to read, print, e-mail and share .pdf version
— Fire Code:
Amends s. 633.0215 of the Fire Code to provide that condos, co-ops and multi-family residential buildings of less than four stories are exempt from installing manual fire alarm systems, provided building has an exterior corridor providing egress.
— Hurricane Glass:
Condo associations are permitted to install impact glass or other code-compliant windows for hurricane protection.
— Official Records:
Amends s. 718.111(12) (a) 7., to include fax numbers, and provides that email addresses and fax numbers are not accessible to unit owners if consent to receive electronic notices has not been provided by the unit owner.
S. 718.111(12)(c)5. is amended to comport with s. 718.111(12)(c)3. (protected information).
S. 718.112(2)(b)3.b. is added to provide that a Board meeting to discuss personnel matters does not have to be open to the unit owners.
— Condo Elections:
Candidates: Must be eligible to serve at the 40 day notice deadline in order to be on ballot or serve.
Director Certification: Condo directors may submit proof of educational course attendance (in lieu of signing the certification form) provided the course is completed within
1 year before or 90 days after the date of election or appointment. Certification is valid as long as the director serves without interruption.
Terms: Terms do not expire at annual meeting if all members’ terms would expire and there are no candidates. When terms expire at the annual meeting, directors may stand
for re-election unless prohibited by bylaws.
— 720 HOA Elections & Meetings:
Adds condo provisions to 720 HOAs:
–Lot owners delinquent more than 90 days are not eligible to serve on the Board, and convicted felons are not eligible to serve.
–All members are entitled to speak at board meetings with reference to all designated agenda items.
— Bulk Telecommunications-HOA:
Creates s. 720.309(2), F.S., mirroring 2010 condo law, allowing association bulk purchase of telecommunications, information, and internet services.
Prohibits HOA from denying individual service to any resident from a certificated or franchised telecom provider.
— Tenants – Condominiums, Cooperatives & HOAs:
Rents: “Future monetary obligations” includes all rent due from the tenant to the unit or lot owner and must be paid to the association until all delinquent accounts are paid in full.
Form Letter: New form letter to tenants explaining tenant’s obligation to pay rent to the association;
Immunity: Tenant has immunity from any claim by
the landlord for rent timely paid to the association after demand.
— Suspensions:
Allows for suspension of common element use rights for non-payment without a hearing, but requires Board approval at properly noticed Board meeting.
Allows for suspension of common element use rights for bad acts after notice and a hearing. If voting rights are suspended, the suspended votes do not count towards a quorum or vote on an action.
— Assessments
A community association that acquires title to a unit through foreclosure is not liable for unpaid assessments that came due before the association’s acquisition of title to any other condo or homeowners’ association.
— Termination of Condominiums:
—Partial terminations and the amendments providing for them are not subject to s. 718.110(4), F.S.
—The plan of termination must state the remaining interests in the portion of the condo not terminated.
—The method of distribution and mortgagee participation to reflect a partial termination has been changed.
—Termination is permitted for reasons of economic waste and/or impossibility if a condo includes units and timeshare units and the improvements have been totally destroyed or demolished.
— Bulk Buyers / Bulk Assignees:
— Amends definitions to mean a person who acquires more than 7 parcels in “a single condominium”.
Bulk assignee is not liable for warranties under s.
718.203(1) or 718.618, F.S., except as provided by the bulk assignee in a prospectus or in the contract for purchase and sale purchase, or for design, construction, development or repair work performed by or for the bulk assignee.
— Requires a filing with DBPR and disclosures to prospective purchasers if the bulk buyer / bulk assignee is offering more than 7 units in a single condominium for sale or for lease for a term of more than 5 years.
— If a bulk assignee receives an assignment of developer’s rights at time of acquisition, and the developer had not already turned over control of the condo to the unit owners, then for purposes of the turnover of control provisions of the condo law, the bulk acquisition of units by the bulk assignee will not be considered a conveyance to a purchaser, or be considered owned by persons other than the developer, and thus will not count
toward the turnover of control percentages until the units are conveyed to owners who are not bulk assignees.
—Bulk buyers and bulk assignees are not required to comply with filing or disclosure requirements IF all units owned by bulk buyer or bulk assignee are offered and conveyed to a single purchaser in a single transaction.
—Bulk buyer and bulk assignee status applies only to the acquisition of condo parcels on or after July 1, 2010, but before July 1, 2012 (in other words, the bulk buyer and bulk assignee status will effectively sunset in 2012).
— New Insurance Legislation, Sinkholes:
—Sinkhole claims must be filed within two (2) years.
Insurers must continue to offer sinkhole coverage, but may limit coverage to homes and not other structures on the property.
—Insurers may require inspections before issuing sinkhole coverage.
—Allows insurers to initially pay only actual cash value
(ACV) for repairs to homes.
—Insurers may require that repairs be made before fully paying a sinkhole claim.
— New Service of Process Legislation
— Any gated residential community, including a condominium association or a cooperative, shall grant unannounced entry into the community, including its common areas and common elements, to a person who is attempting to serve process on a defendant or witness who resides within or is known to be within the community.