LEGAL MORSEL: NEW FLORIDA LEGISLATION ON EMOTIONAL SUPPORT ANIMALS

LEGAL MORSELS | BY ROBERT KAYE, ESQ., B.C.S.

In the 2020 Legislative session, the Florida Legislature adopted Senate Bill 1084, which was signed into law by the Governor, and became effective on July 1, 2020.  This new law addresses emotional support animals on a state level.  It provides clarification regarding qualifications for this special status under Florida’s Fair Housing Act, as well as identifies penalties for wrongfully and/or fraudulently attempting to qualify for the exempt status and have the animal.  However, while significant and helpful, it is also important to bear in mind that there are Federal laws on this topic that apply as well and care is needed to avoid potential conflicts.

The new Section 760.27 of Florida Statutes, within the Florida Fair Housing Act, initially adds a definition for an “emotional support animal”.  Specifically, an emotional support animal is one that “does not require training to do work, perform tasks, provide assistance, or provide therapeutic emotional support by virtue of its presence which alleviates one or more identified symptoms or effects of a person’s disability.”  When considering an application for an emotional support animal, the Statute indicates that the person requesting the emotional support animal cannot be required by the housing provider (which includes associations) to pay extra compensation to the provider in order for the requesting individual to have the animal.

The new Statute does allow the housing provider/association the right to deny the reasonable accommodation request under certain circumstances.  One instance is if such animal poses a direct threat to the safety or health of others or poses a direct threat of physical damage to the property of others, which cannot be reduced or eliminated by another reasonable accommodation.  This could be significant in the event there is an existing resident who may have a documented medical condition that would be negatively impacted by the presence of the animal (such as an allergy condition).

If the disability is not readily apparent, a housing provider/association may request reliable information that reasonably supports that the person requesting the animal has a disability and lists the types of supporting documents that would qualify as acceptable.  These include: a determination of disability from any federal, state or local government agency; receipt of disability benefits or services from any federal, state or local government agency; proof of eligibility for housing assistance or a housing voucher received because of a disability; information from a health care provider, with the requirement that if such provider is not physically located in Florida, the provider must have provided in-person care or services to the applicant on at least one occasion (this “in-person” care requirement for an out-of-state provider is a significant change in the new Statute); and, information from any other source that the housing provider/association reasonably determines to be reliable in accordance with federal law.  Also authorized in the new statute is for the housing provider/association to request reliable information that may include identifying the particular assistance or therapeutic emotional support provided by the specific animal; and, other information that the housing provider reasonably determines to be reliable under federal law.

If the person requesting the animal is asking for more than one emotional support animal, the housing provider/association may request information regarding the specific need for each animal.  Proof of compliance with state and local requirements for licensing and vaccinating each emotional support animal may also be required.

A housing provider/association may not request information that discloses the diagnosis or severity of a person’s disability or any medical records relating to that disability.  The housing provider/association may develop and make available the application form the housing provider/association prefers be used in making the application, but may not require the use of a specific form or notarized statement or deny a request solely because the requesting party did not use the housing provider/association’s method.

The statute expressly indicates that emotional support animal registration of any kind is not, by itself, sufficient information to reliably establish that a person has a disability or disability-related need.  If the animal causes any damage to the premises or another person, the owner of the animal is liable for such damages.

A significant and notable portion of this Bill is the addition of Section 817.265 F.S., within the Criminal Code of Florida.  This new provision identifies as a misdemeanor of the second degree for falsifying information or written documentation or knowingly providing fraudulent information or written documentation for an emotional support animal application.  The wrongful conduct also includes otherwise knowingly and willfully misrepresenting through a verbal or written notice, as having a disability or disability-related need for an emotional support animal or being otherwise qualified to use an emotional support animal.  This could result in imprisonment for a period not to exceed sixty (60) days and/or a fine of up to $500.00.  If an individual is convicted for this conduct, the person must also perform 30 hours of community service for an organization that serves persons with disabilities or for another entity or organization that the court may decide upon.  These sanctions could apply not only to the individual requesting the reasonable accommodation, but also to the “medical provider” who provides fraudulent information to support the request.

While is it significant that there are criminal sanctions included in this new statute, it is also necessary to recognize the limits that are included in it as well.  The words “knowingly” and “willfully” create a substantial burden on the State in prosecuting an alleged incident since it will be required to prove beyond a reasonable doubt the knowledge and intent of the party being charged, which can be extremely difficult to do.  Whether a local Assistant State Attorney is willing to pursue such a charge is generally an open question at this time.

Although it is helpful to have these guidelines in the State statutes, it is also important to keep in mind that there are Federal Fair Housing Laws that include this particular issue and whenever there is any conflict between the Federal and State requirements, the Federal law will apply.  Since these types of issues can create costly potential exposure to associations, it remains a necessity that board members consult with competent association attorneys versed on this topic whenever confronted with a request for a reasonable accommodation of this type.

Attorney Robert Kaye, Author of the 'Legal Morsels' column, Next Appears on Radio Show 'Ask the Experts' Thursday, September 3rd

Appellate Court Decision Results In The Need For Added Vigilance By Condominiums Undertaking Construction Projects

Legal Morsels | by Robert Kaye, Esq., B.C.S.

It is not unusual for the board of directors of a condominium association to take on construction projects within the condominium.  Many such projects involve updating and redecorating the common elements.  Quite often, projects can include necessary repairs or maintenance-related components along with material alterations or substantial additions to the common elements.  For such material alterations to the common elements, Section 718.113 of Florida Statutes has long contained a limitation on the ability to make these types of changes as either being in accordance with the requirements of the declaration of condominium or, if the declaration has no provision, then by a vote of not less than 75% of the eligible voting interests.  In a recent decision of the Florida Third District Court of Appeal, in Evelyn A. Bailey and Robert Farnik v. Shelborne Ocean Beach Hotel Condominium Association, Inc., Case Nos. 3D17–559 & 3D17-0767, July 15, 2020, the Court reviewed the actions taken by the Board of Directors of Shelborne Ocean Beach Hotel Condominium Association, Inc. (the “Association”) in extensive construction projects costing in excess of $30 million.  In reporting its decision, the Court has either inadvertently or intentionally created an issue of which condominium boards now need to be very familiar so as not to be negatively impacted after significant expenditures have been made on  construction projects.

In Shelborne, the Association had undertaken two rounds of construction projects, starting initially in 2010 and a second phase that began in 2013.  During the project, significant construction defect issues were discovered which not only added to the project, but also caused the condominium to be completely closed from July 2013 through September 2014.  The initial project and special assessments were approved by only the Board.  Subsequently, in 2014 and 2016, after the project was completed, over 75% of the unit owners voted to approve the material alteration part of the project.  Among the issues the Court addressed in Shelborne, was the timing of the approval by the unit owners to the material alterations.

In 2018, Section 718.113(2)(a) of Florida Statutes was amended to provide the following:

    Except as otherwise provided in this section, there shall be no material alteration or substantial additions to the common elements or to real property which is association property, except in a manner provided in the declaration as originally recorded or as amended under the procedures provided therein. If the declaration as originally recorded or as amended under the procedures provided therein does not specify the procedure for approval of material alterations or substantial additions, 75 percent of the total voting interests of the association must approve the alterations or additions before the material alterations or substantial additions are commenced. This paragraph is intended to clarify existing law and applies to associations existing on July 1, 2018. (emphasis added as the new language from 2018)

While the opinion in Shelborne does not specifically indicate whether the Declaration of Condominium contained a voting requirement for material alterations, the percentage of owners is the same as what the Statute indicates.  (We can only presume that the Declaration was silent and, if not, the issue may not have been raised by either party for the Court to consider.)  The Court determined that some of the items of construction did not have sufficient evidence in the trial record to determine whether the items were necessary maintenance and, therefore, concluded that a unit owner vote was necessary for those items.  The Court further found that since the unit owner approval did not occur before the material alterations or substantial additions were commenced, the Association was in violation of the Statute.  In that the construction was already completed and the owners have clearly approved it, this decision does not provide clear guidance as to what should then occur based upon this violation.

Normally, a statutory change in 2018 would not affect or be applicable to actions taken in 2014 and 2016.  However, by including the last sentence of the change to the Statute, it is considered to have been the intent of the Legislature that the Statute have retroactive application, meaning it applies to situations that pre-date the statutory change.

While the plain reading of the Statute leads to the conclusion that the requirement for the  approval of the owners to take place prior to the material alteration being commenced applies to those situations in which the declaration is silent on the issue, the Shelborne decision has clouded that issue by failing to mention that distinction.  Many declarations of condominium contain provisions that allow the board to make the determination to proceed with a material alteration or contains a triggering event, such as a minimum percent of the annual budget to be spent before the unit owner vote applies or a lower voting requirement of the unit owners then provided in the Statute.  As a result of this decision, it is likely that courts or administrative agencies will consider the requirement to obtain owner approval before the material alteration is commenced to apply to all material alterations requiring owner vote.

The key takeaway for board members of condominium associations in Florida is to have the declaration of condominium reviewed by its association counsel to make certain that the declaration clearly provides for the manner in which material alterations to the common elements are to be handled. It is likely that the vast majority do not currently specify the timing of the owner approval or contain an allowance for it to occur after the project has commenced.  Amendments to the declaration should be considered to provide clarity in the process for addressing material alterations or substantial additions to the common elements, including express authorization for the unit owner approval to occur subsequent to the commencement of the project.  Without such clarity in the declaration, the association can find itself facing the possibility of having to undue significant changes already made and paid for, and for the associated expenses.

WHEN IS A MASTER ASSOCIATION SUBJECT TO CHAPTER 718 OF FLORIDA STATUTES?

Many communities throughout Florida were and continue to be developed with multiple layers of community associations. Often, such communities face legal questions that require a determination as to what statutory provisions should apply to their operation. Although it has seemed a fairly straight-forward proposition for over thirty (30) years, the issue of whether or not a recreation or master association is subject to the requirements of Chapter 718 of Florida Statutes (the “Condominium Act”) has recently become not as “black and white” as many would prefer.

In 1988, the 5th District Court of Appeal decided what had been considered the defining case on the topic, Downey v. Jungle Den Villas Recreation Association, Inc., 525 So. 2d 438 (Fla. 5th DCA 1988).  The Jungle Den decision applied a “two-pronged test” when considering the qualifications of the recreation or master association.  The first test, called “constituency”, considers whether the facilities are used exclusively by condominium unit owners.  The second test, called “functionality”, reviews the activities performed by the association being considered and whether it involves condominium property.   In 1991, in light of the Jungle Den decision, Section 718.103(2) F.S. was amended to include a definition of an “association” to be “any entity which operates or maintains other real property in which unit owner have use rights, where membership in the entity is composed exclusively of unit owners or their elected or appointed representatives and is a required condition of unit ownership.”  The Statutory change took a portion of the Jungle Den decision and codified it.  In other words, under the 1991 change to the Statute, if the members of a mandatory membership recreation or master association are exclusively condominium unit owners, the recreation or master association is subject to the Condominium Act.  As a result, for many years, the constituency test was applied more weightily than the functionality test and often would be the only criteria considered to conclude that the association was subject to the Condominium Act.

However, in 2018, the 3rd District Court of Appeal was called upon to review a commercial complex made up of a master association and four (4) condominium associations in deciding a case involving this same issue in Dimitri v. Commercial Center of Miami Master Association, Inc., 253 So. 3d 715 (Fla. 3d DCA 2018)The association in Dimitri was formed in 1982 and operates the master association for a group of condominium buildings, each with its own sub-association. The master association is responsible to maintain or provide for the maintenance of all common property in the complex which is not owned and controlled by any of the sub-associations. The master association did not have any responsibility on any of the condominiums.  The primary issue decided in Dimitri was whether the change in the Statute in 1991 applied to the association in the case. The Court also considered the two-prong test relative to the operation of the association, and whether it was subject to the Condominium Act.

Since the governing documents for the association in the Dimitri case were recorded in 1982, the Court concluded first that they pre-dated the Statutory definition and the facts would have to be reviewed further to determine whether the newer version of the Statute applied.  The decision indicated that the declaration of covenants involved did not contain the specific “magic” phrase required to result in subsequent substantive changes in the Statute being automatically applied to the association at issue, that phrase being that the community is subject to particular laws “as they may be amended from time to time.”  Since the documents here did not include this language, the Court determined that the change to the Statute in 1991 did not apply to the 1982 documents and, therefore, was inapplicable to that community.  Additionally, as a general rule, statutes are not retroactive in nature.  In order for a Statute to be retroactive in its application, the Statute must expressly so state.  The Court in Dimitri concluded that Section 718.103(2) F.S. had no such express intent and, as a result, was not retroactive in its application.  Only the prior definition in the Statute when the association was formed in 1982 would be applied to this complex, which did not result in the complex being subject to the Condominium Act.

In considering the two-prong test from Jungle Den, while the constituency of the Association was exclusively condominium unit owners, the Court further concluded that the association there did not administer and manage “condominium property” as it was defined in the Statute in place in 1982.  As a result, it did not satisfy the second level of the test (functionality) and, consequently, was not subject to the Condominium Act.

For any condominium community in Florida that was developed with a master and/or recreation association, a thorough analysis should be undertaken by experienced community association counsel to make certain that the master and/or recreation association is following the correct law that applies to it.  Likewise, the same analysis should be undertaken for any master and/or recreation association to ensure that it is operating in accordance with the appropriate Statute and to avoid potential claims of improper governance.

LEGAL MORSEL: WHEN IS A MASTER ASSOCIATION SUBJECT TO CHAPTER 718 OF FLORIDA STATUTES?

Many communities throughout Florida were and continue to be developed with multiple layers of community associations. Often, such communities face legal questions that require a determination as to what statutory provisions should apply to their operation. Although it has seemed a fairly straight-forward proposition for over thirty (30) years, the issue of whether or not a recreation or master association is subject to the requirements of Chapter 718 of Florida Statutes (the “Condominium Act”) has recently become not as “black and white” as many would prefer.

In 1988, the 5th District Court of Appeal decided what had been considered the defining case on the topic, Downey v. Jungle Den Villas Recreation Association, Inc., 525 So. 2d 438 (Fla. 5th DCA 1988).  The Jungle Den decision applied a “two-pronged test” when considering the qualifications of the recreation or master association.  The first test, called “constituency”, considers whether the facilities are used exclusively by condominium unit owners.  The second test, called “functionality”, reviews the activities performed by the association being considered and whether it involves condominium property.   In 1991, in light of the Jungle Den decision, Section 718.103(2) F.S. was amended to include a definition of an “association” to be “any entity which operates or maintains other real property in which unit owner have use rights, where membership in the entity is composed exclusively of unit owners or their elected or appointed representatives and is a required condition of unit ownership.”  The Statutory change took a portion of the Jungle Den decision and codified it.  In other words, under the 1991 change to the Statute, if the members of a mandatory membership recreation or master association are exclusively condominium unit owners, the recreation or master association is subject to the Condominium Act.  As a result, for many years, the constituency test was applied more weightily than the functionality test and often would be the only criteria considered to conclude that the association was subject to the Condominium Act.

However, in 2018, the 3rd District Court of Appeal was called upon to review a commercial complex made up of a master association and four (4) condominium associations in deciding a case involving this same issue in Dimitri v. Commercial Center of Miami Master Association, Inc., 253 So. 3d 715 (Fla. 3d DCA 2018).  The association in Dimitri was formed in 1982 and operates the master association for a group of condominium buildings, each with its own sub-association. The master association is responsible to maintain or provide for the maintenance of all common property in the complex which is not owned and controlled by any of the sub-associations. The master association did not have any responsibility on any of the condominiums.  The primary issue decided in Dimitri was whether the change in the Statute in 1991 applied to the association in the case. The Court also considered the two-prong test relative to the operation of the association, and whether it was subject to the Condominium Act.

Since the governing documents for the association in the Dimitri case were recorded in 1982, the Court concluded first that they pre-dated the Statutory definition and the facts would have to be reviewed further to determine whether the newer version of the Statute applied.  The decision indicated that the declaration of covenants involved did not contain the specific “magic” phrase required to result in subsequent substantive changes in the Statute being automatically applied to the association at issue, that phrase being that the community is subject to particular laws “as they may be amended from time to time.”  Since the documents here did not include this language, the Court determined that the change to the Statute in 1991 did not apply to the 1982 documents and, therefore, was inapplicable to that community.  Additionally, as a general rule, statutes are not retroactive in nature.  In order for a Statute to be retroactive in its application, the Statute must expressly so state.  The Court in Dimitri concluded that Section 718.103(2) F.S. had no such express intent and, as a result, was not retroactive in its application.  Only the prior definition in the Statute when the association was formed in 1982 would be applied to this complex, which did not result in the complex being subject to the Condominium Act.

In considering the two-prong test from Jungle Den, while the constituency of the Association was exclusively condominium unit owners, the Court further concluded that the association there did not administer and manage “condominium property” as it was defined in the Statute in place in 1982.  As a result, it did not satisfy the second level of the test (functionality) and, consequently, was not subject to the Condominium Act.

For any condominium community in Florida that was developed with a master and/or recreation association, a thorough analysis should be undertaken by experienced community association counsel to make certain that the master and/or recreation association is following the correct law that applies to it.  Likewise, the same analysis should be undertaken for any master and/or recreation association to ensure that it is operating in accordance with the appropriate Statute and to avoid potential claims of improper governance.

LEGAL MORSEL: FIRST DISTRICT COURT OF APPEAL CLARIFIES UNIT OWNER OBLIGATIONS ON PAST DUE ASSESSMENTS AND IDENTIFIES CONFLICT WITH THIRD DISTRICT CASE

In 2013, the world of Florida condominiums was thrown by what many considered to be the controversial decision of Aventura Management, LLC v. Spiaggia Ocean Condominium Association, Inc., which, in effect, limited the obligation of an owner for unpaid assessments of prior owners. (See prior Legal Morsel articles discussing the Spiaggia cases here; and, for the follow-up case, here).

The main issue in Spiaggia addressed the limit of how far back into prior owners’ unpaid assessments a current owner will be held accountable.  Section 718.116 of Florida Statutes provides that an owner is jointly and severally liable for sums due from the prior owner.  Spiaggia limited that to one prior owner and for only sums unpaid during that ownership. Florida practitioners in this area of the law, including Kaye Bender Rembaum, overwhelmingly agree that the Spiaggia decision was not correct.  The Florida Legislature also apparently thought so and amended Section 718.116 F. S. the following year in an effort to correct the misconception.  On July 16, 2019, the Florida First District Court of Appeal issued its decision in Coastal Creek Condominium Association, Inc., v. Fla. Trust Services LLC, Case No. 1D18-1457, which expressly conflicts with the conclusions of Spiaggia as to what is owed by a current owner.

Coastal Creek Condominium Association, Inc. filed a foreclosure action to collect on unpaid maintenance assessments.  The Appellate Court discusses the history of the ownership of the unit and indicates that Fla Trust Services, the defendant/current unit owner in this foreclosure, had taken title to the unit on July 26, 2016, from Homes HQ, which had purchased the property at a mortgage foreclosure sale, with title conveyed to it on June 13, 2016.  The original owners in all of this, who were foreclosed upon by the lender in 2016, were Tracy Langley and Todd Levraea (called “Original Owners” by the Court).  The foreclosure by Coastal Creek sought sums due from August 15, 2015, which pre-dated Homes HQ ownership and the mortgage foreclosure, when the unit was owned by the Original Owners.  The lower court decided that Fla Trust owed assessments only from Home HQ’s ownership and not from the time of the Original Owners, relying upon the holding of Spiaggia.  The Appellate Court disagreed with that conclusion, deciding that sums claimed by the Association from the Original Owner were owed by Fla Trust as well.

In reaching its decision, the Appellate Court reviewed the relevant portion of Section 718.116 F.S., and concluded that Spiaggia had not fully grasped the intent of the Statute, which was that a current owner is jointly and severally liable for all unpaid assessments from all prior owners, not just from the time the unit was owned by the immediately prior owner, as the Spiaggia court concluded.  Home HQ was jointly and severally liable for all of the sums due from the owner prior to it, the Original Owners.  As such, Fla Trust was likewise liable for these sums.  As a result, the Court concluded that Fla Trust is required to pay for the assessments that were not paid by Home HQ and the Original Owners.  (Fla Trust still has the ability to bring legal claims against Home HQ and/or the Original Owners for their portion of the unpaid assessments.)

As a result of this conflict between District Courts of Appeal, the First District Court has certified the conflict to the Florida Supreme Court to consider whether to resolve it.  We will be monitoring the progress of that certification and report any news as it develops.  However, until such time as the conflict is resolved, the effect of this conflicting decision in the First District Court of Appeal from the prior decision in the Third District depends upon where the property is located that is the subject of a condominium foreclosure.  For property within the jurisdiction of the 3rd DCA (Miami-Dade and Monroe Counties), the Spiaggia decision remains the law that should be followed, and for properties located within the 1st DCA (the most northern and northwestern part of Florida, including Tallahassee and surrounding areas), the Coastal Creek decision is to be followed.  For all other jurisdictions in Florida, lower level judges will choose between the two in reaching their decisions.  This can result in inconsistent rulings on the same issue, even in the same courthouse, until the Supreme Court resolves the conflict.

Additionally, and equally important here, from the way this Appellate Court phrased its opinion, it may have clarified that the 2015 holding of the Fourth District Court of Appeal in Pudlit 2 Joint Venture, LLP v. Westwood Gardens Homeowners Association, Inc., only applies to homeowners associations and not to condominiums. (See Legal Morsel on the Pudlit decision published by Kaye Bender Rembaum, P.L. here.)  The Pudlit decision limited the obligation of certain third party purchasers at a lender foreclosure sale in a homeowner association based upon provisions contained in the documents of that community rather than what is set forth in the Statute.  Since Pudlit was published, there have been inconsistent rulings in the lower courts regarding whether or not that same limitation applies to condominiums.  In Coast Creek, the Appellate Court expressly includes sums which came due prior to the lender foreclosure.  Since the unit was purchased by a third party at the lender foreclosure sale, the Court holding here did not provide the third party an exemption from the obligation to pay for sums due prior to foreclosure, as many have argued in recent years.  This may prove to be very helpful to condominium associations in Florida in the future.

FIRST DISTRICT COURT OF APPEAL CLARIFIES UNIT OWNER OBLIGATIONS ON PAST DUE ASSESSMENTS AND IDENTIFIES CONFLICT WITH THIRD DISTRICT CASE

In 2013, the world of Florida condominiums was thrown by what many considered to be the controversial decision of Aventura Management, LLC v. Spiaggia Ocean Condominium Association, Inc., which, in effect, limited the obligation of an owner for unpaid assessments of prior owners. (See prior Legal Morsel articles discussing the Spiaggia cases here; and, for the follow-up case, here).

The main issue in Spiaggia addressed the limit of how far back into prior owners’ unpaid assessments a current owner will be held accountable.  Section 718.116 of Florida Statutes provides that an owner is jointly and severally liable for sums due from the prior owner.  Spiaggia limited that to one prior owner and for only sums unpaid during that ownership. Florida practitioners in this area of the law, including Kaye Bender Rembaum, overwhelmingly agree that the Spiaggia decision was not correct.  The Florida Legislature also apparently thought so and amended Section 718.116 F. S. the following year in an effort to correct the misconception.  On July 16, 2019, the Florida First District Court of Appeal issued its decision in Coastal Creek Condominium Association, Inc., v. Fla. Trust Services LLC, Case No. 1D18-1457, which expressly conflicts with the conclusions of Spiaggia as to what is owed by a current owner.

Coastal Creek Condominium Association, Inc. filed a foreclosure action to collect on unpaid maintenance assessments.  The Appellate Court discusses the history of the ownership of the unit and indicates that Fla Trust Services, the defendant/current unit owner in this foreclosure, had taken title to the unit on July 26, 2016, from Homes HQ, which had purchased the property at a mortgage foreclosure sale, with title conveyed to it on June 13, 2016.  The original owners in all of this, who were foreclosed upon by the lender in 2016, were Tracy Langley and Todd Levraea (called “Original Owners” by the Court).  The foreclosure by Coastal Creek sought sums due from August 15, 2015, which pre-dated Homes HQ ownership and the mortgage foreclosure, when the unit was owned by the Original Owners.  The lower court decided that Fla Trust owed assessments only from Home HQ’s ownership and not from the time of the Original Owners, relying upon the holding of Spiaggia.  The Appellate Court disagreed with that conclusion, deciding that sums claimed by the Association from the Original Owner were owed by Fla Trust as well.

In reaching its decision, the Appellate Court reviewed the relevant portion of Section 718.116 F.S., and concluded that Spiaggia had not fully grasped the intent of the Statute, which was that a current owner is jointly and severally liable for all unpaid assessments from all prior owners, not just from the time the unit was owned by the immediately prior owner, as the Spiaggia court concluded.  Home HQ was jointly and severally liable for all of the sums due from the owner prior to it, the Original Owners.  As such, Fla Trust was likewise liable for these sums.  As a result, the Court concluded that Fla Trust is required to pay for the assessments that were not paid by Home HQ and the Original Owners.  (Fla Trust still has the ability to bring legal claims against Home HQ and/or the Original Owners for their portion of the unpaid assessments.)

As a result of this conflict between District Courts of Appeal, the First District Court has certified the conflict to the Florida Supreme Court to consider whether to resolve it.  We will be monitoring the progress of that certification and report any news as it develops.  However, until such time as the conflict is resolved, the effect of this conflicting decision in the First District Court of Appeal from the prior decision in the Third District depends upon where the property is located that is the subject of a condominium foreclosure.  For property within the jurisdiction of the 3rd DCA (Miami-Dade and Monroe Counties), the Spiaggia decision remains the law that should be followed, and for properties located within the 1st DCA (the most northern and northwestern part of Florida, including Tallahassee and surrounding areas), the Coastal Creek decision is to be followed.  For all other jurisdictions in Florida, lower level judges will choose between the two in reaching their decisions.  This can result in inconsistent rulings on the same issue, even in the same courthouse, until the Supreme Court resolves the conflict.

Additionally, and equally important here, from the way this Appellate Court phrased its opinion, it may have clarified that the 2015 holding of the Fourth District Court of Appeal in Pudlit 2 Joint Venture, LLP v. Westwood Gardens Homeowners Association, Inc., only applies to homeowners associations and not to condominiums. (See Legal Morsel on the Pudlit decision published by Kaye Bender Rembaum, P.L. here.)  The Pudlit decision limited the obligation of certain third party purchasers at a lender foreclosure sale in a homeowner association based upon provisions contained in the documents of that community rather than what is set forth in the Statute.  Since Pudlit was published, there have been inconsistent rulings in the lower courts regarding whether or not that same limitation applies to condominiums.  In Coast Creek, the Appellate Court expressly includes sums which came due prior to the lender foreclosure.  Since the unit was purchased by a third party at the lender foreclosure sale, the Court holding here did not provide the third party an exemption from the obligation to pay for sums due prior to foreclosure, as many have argued in recent years.  This may prove to be very helpful to condominium associations in Florida in the future.

HURRICANE SEASON PREPAREDNESS

As with each year, we hope for a season with no hurricanes coming our way.  However, it is safe to expect that there may be at least one such event in the coming months and, at the start of the hurricane season, it is prudent to plan for that possibility.  Some of the planning steps that should be considered include the following:

  1. Create a Disaster Plan and establish off-site contact information and meeting points.
  2. Establish Evacuation Routes and conduct building or community evacuation drills in the weeks leading up to and once the hurricane season has begun.
  3. Verify Emergency Generators & Supplies operate and that fuel, flashlights, batteries, water and other necessities are available.
  4. Backup Computer Files and store information offsite, in case computers crash or systems fail.
  5. Secure the Premises – Make preparations for routine lockdown of the building(s) or other facilities as a storm approaches, so the building(s) is(are) secure during the storm and safe from vandalism or looting if a hurricane strikes.
  6. List of Owners & Employees – Have on hand a current, hard-copy reference list complete with the names of all property owners, emergency contact numbers and details of second residence addresses, as well as a list of all association employees, with full contact details.
  7. Photograph or Video Premises – Keep a visual record through video or photographs of premises, facilities and buildings to facilitate damage assessment and speed damage claims in a storm aftermath.  Consider having the premises evaluated by appropriate professionals to establish the conditions prior to any hurricane event. (see further details on this item below)
  8. Building and Facilities Plans – Make sure a complete set of building or community plans are readily available for consultation by first-responders, utilities workers and insurance adjusters following a storm.
  9. Insurance Policies & Agent Details – Be sure all insurance policies are current and coverage is adequate for community property, facilities and common areas and compliant with State Law; full contact details for insurance companies and agents should be readily available in the event of a storm.
  10. Bank Account Details & Signatories – Keep handy a list of all bank account numbers, branch locations and authorized association signatories, and make contingency plans for back-up signatories in case evacuation or relocation becomes necessary.
  11. Mitigation of Damages – In the immediate aftermath of a storm, take the necessary steps to mitigate damages – this includes “Drying-In,” which is the placement of tarps on openings in the roof and plywood over blown out doors and windows, and “Drying-Out,” which is the removal of wet carpet and drywall to prevent the growth of mold.
  12. Debris Removal – Have a plan for speedy removal of debris by maintenance staff, outside contractors or civic public works employees, should a hurricane topple trees and leave debris in its wake.

With respect to item 7 above, Kaye Bender Rembaum has become aware of at least one service provider that will bring in engineering professionals to make a physical inspection of the entire community to assess the conditions and establish a record for all such conditions prior to any storm.  The assessment will also identify conditions that may have resulted from Hurricane Irma from 2017, for which claims were not made or even found and may still be claimed.  In many instances, conditions of significant damage may not be readily apparent to the layperson, but to a qualified professional, very obvious.  Quite often, such an inspection can result in substantial additional insurance claims for the association to recover.  It is not unusual for an insurance carrier to reject initial claims following a major storm, citing to maintenance or pre-existing conditions as the basis for the denial.  The team of experts performing the assessment has assisted several communities overcome such rejections and ultimately receive additional settlement proceeds to make further repairs to the premises.  While there is no guaranty of such a result, without making such an assessment, the board will never know and certainly have no further recovery.  Most importantly, this inspection and assessment is undertaken at no charge to the association by this company, and with no obligation to the association!

If the Board desires additional information and contact information for obtaining the free inspection and analysis of the condition of the community, please contact Kaye Bender Rembaum.  The Firm wishes all a safe and peaceful hurricane season!

External Resource Links:

“Preparing for a Disaster” (Florida DPBR)

“Hurricane Safety Checklist” (American Red Cross)

Third District Court of Appeal Overturns Large Judgement Against Condominium Association

The Florida court system has been described as complex and confusing to the layperson and, while there is no requirement that an individual be represented by counsel in court, the recent holding of the Third District Court of Appeal demonstrates the importance of having not only attorney representation in court proceedings, but competent representation in the area involved.

In the case of Lincoln Mews Condominium Association, Inc. v. Harris, Case No. 3D18-1379, May 1, 2019, the Appellate Court was asked to review a default judgment entered against the Condominium Association for over $500,000.  In its decision, the Court reviewed the procedural history of the case and described it as “bizarre”!

The case was originally brought by an attorney, on behalf of a unit owner, Stephanie Harris, and, purportedly, the Association, against President of the Association personally, and the Association itself.  According to the Appellate Court, the initial complaint contained claims that were not legally supported or even amounting to actual legal causes of action.  Shortly after the case was filed, the attorney who filed the case withdrew from representing the unit owner.

Then, Ms. Harris, continued for a time without an attorney.  On her own, she then filed two amended complaints, the first of which, among other odd things, dropped the Association as a party and, five days later, a second amended complaint was filed, attempting to re-add the Association back into the case, and which contained more what the Appellate court considered to be outlandish claims.  Moreover, the new pleadings were not even properly served on the Association, as is required under court rules and procedures.

Some months later, Ms. Harris hired a new attorney, who filed a third amended complaint, adding other parties and, again, included the Association.  Once again the Association was not properly served.  This newest complaint contained even more of what the Appellate Court called “colorful” claims.  Due to the failure to serve the Association with the third amended complaint, the Association did not respond to it.  As a result of there being no response from the Association filed with the Court, the owner’s new attorney filed a motion for a default against the Association, which was ultimately granted by the lower court.

Subsequently, even though Ms. Harris failed to properly establish a legal basis for her claims or provide any evidence, the lower court judge entered an order against the Association for $500,000.  The case then apparently sat dormant for some time.

Four years later, Ms. Harris hired yet another attorney (her third in this case) to pursue collection of the default judgment against the Association.  She even attempted to have a receiver appointed over the entire condominium.  Remarkably, even though the Association, which was finally made aware of the judgment against it and had filed appropriate pleadings to vacate the judgment, the lower court denied the Association motion to vacate the judgment, which resulted in the appeal to the Third DCA.

The Appellate Court correctly decided that by dropping the Association in the first amended complaint which Ms. Harris filed on her own, the court no longer had “personal” jurisdiction over the Association, which is required in order for a judgment to be entered against it.  To add the Association back into the case, it had to be properly served, as if the case was brand new, which did not happen here.  As a result, all subsequent proceedings against the Association were considered void.

It is gratifying that the Appellate Court in this case was able to get through all of the filings, which it also characterized as a “strange and protracted record”, and to make this proper procedural ruling.  The Appellate Court even recognized the injustice that had been created against this Association.

However, there is no guaranty that this decision will provide protection to an unwary association that finds itself caught up in the court system by an overly zealous unit owner.  It is a recommended business practice for associations to have its counsel periodically check local court records to see if the association has been named in a law suit of which it might not otherwise be aware.  The local courts have website access available for this purpose.  It is also recommended to have its counsel be listed as the Registered Agent of the association to ensure that when the attorney, as Registered Agent for the association, so that any new litigation, properly served on the association is timely addressed to best protect the interests of the association.

RECORDING RULES AND AMENDMENTS THERETO RECENT STATUTE CHANGE AFFECTING HOMEOWNERS’ ASSOCIATIONS

Many residents of Florida live within a community operated by an association of some kind, whether it be a community of single-family homes under the jurisdiction of a homeowners’ or property owner’s association, or a condominium building maintained by a condominium association.  All in such situations should be well-aware that many aspects of life within these communities are subject to restrictions outlined in a set of governing documents, which include a declaration, articles of incorporation, bylaws, and rules and regulations. While the declaration, articles of incorporation, and bylaws are typically recorded among the public records of the county in which the community is located, rules and regulations are more often not recorded.

As rules and regulations are usually amendable by the approval of the board of directors only (as opposed to the additional approval of the membership), allowing rules and regulations to be unrecorded provides the board of directors with the flexibility to amend the rules and regulations as the need arises without the added expense and time required to record these rule amendments among the county’s official records. However, this option has changed for homeowners’ associations as a result of recent legislative changes which took effect on July 1, 2018.

How Has This Changed?

Pursuant to new provisions set out in Section 720.306(1)(e) of F.S., “[a]n amendment to a governing document is effective when recorded in the public records of the county in which the community is located.”  While this has certainly always been the case for a declaration, articles of incorporation, and bylaws, this is new as to rules and regulations of a homeowners’ association because they were added to the definition of the term “governing documents” as set out in Section 720.301(8), F.S. when the Statute was amended in 2015, effective in July of that year.

Due to the fact that many homeowners’ associations have not recorded their rules and regulations in the public records of the county, consideration should be given to recording all of the rules and regulations, particularly if there are plans to amend them.  Failing to record the rules and regulations prior to (or at the same time as) recording an amendment will possibly create what is termed a “wild” amendment, which is not connected in the public records to the document it is trying to amend.  Additionally, if an amendment to the rules and regulations must be recorded in order to be effective, it is logical to conclude that the initial rules and regulations must also be recorded in order to be effective. Under Section 720.303 F.S., all governing documents are required to be recorded in the public records.  Therefore, a homeowners’ association should record its rules and regulations in the public records in order to avoid this possible claim against the legal effectiveness of the rules when it becomes necessary for the association to enforce its rules against an owner.

As with any other amendment to the governing documents for a homeowners’ association, within thirty (30) days after recording an amendment to the governing documents, the homeowners’ association must provide notice of the change to the Members. This is accomplished either by sending a copy of the recorded amendment to the members or, if a copy of the amendment was provided to the members before they approved it (for those communities with owner approval requirements for rules) and the amendment was not changed before the vote, a notice providing that the amendment was adopted, identifying the official book and page number or instrument number of the recorded amendment, and that a copy of the amendment is available at no charge to the member upon written request to the association.

While the consequences of this new legislation may have been unintended, it is the law until amended otherwise or an appellate court makes a contrary ruling. Although this will likely result in some minor additional costs to homeowners’ associations, this is a good opportunity for a board of directors to examine their existing rules and regulations and update them prior to recording them among the public records.  It is also recommended that you have experienced Association counsel review any proposed rules and regulations prior to approving them to ensure that they are enforceable and do not unnecessarily expose the Association to liability (e.g., Fair Housing violations).

APPELLATE COURT CLARIFIES MATERIAL ALTERATION APPROVAL REQUIREMENTS FOR CONDOMINIUMS

As condominiums age, boards of directors choose to update and refurbish the common elements from time to time.  Quite often the updates involve changing the appearance and the materials being used, such as replacing carpeting with tile flooring.  Such changes frequently become what is called a “material alteration or substantial addition” to the common elements.

Whether or not the choice to undertake a significant change to the common elements of the condominium is that of the board of directors or must be put before the unit owners for a vote is always a concern that must be resolved before starting the project.  This is primarily due to the provisions of Section 718.113(2)(a) of Florida Statutes, which provides, in pertinent part, the following:

. . . there shall be no material alteration or substantial additions to the common elements or to real property which is association property, except in a manner provided in the declaration as originally recorded or as amended under the procedures provided therein. If the declaration as originally recorded or as amended under the procedures provided therein does not specify the procedure for approval of material alterations or substantial additions, 75 percent of the total voting interests of the association must approve the alterations or additions before the material alterations or substantial additions are commenced. . .

The Fourth District Court of Appeal was faced with that issue in the recent case of Lenzi v. Regency Tower Association, Inc.,Case No. 4D17-2507, June 20, 2018.  The Firm of Kaye Bender Rembaum provided representation to the Association in this case, which prevailed in its position.

The Regency Tower Association, Inc. (“Association) had decided, by a vote of the Board of Directors, to alter certain common element flooring from marble to tile.  Unit owner Lenzi objected to the Board making that decision, claiming it was a material alteration, requiring a vote of the unit owner.  The Declaration of Condominium for Regency Tower expressly authorizes the Board of Directors to make “alterations or improvements” to the common property without requiring a vote of the unit owners.  Lenzi claimed that because the Declaration did use the phrase “alteration” over “material alteration” required a vote of the owners.  When the Board declined to accept Lenzi’s interpretation, Lenzi filed for arbitration with the Division of Condominium to challenge the decision of the Board.

In arbitration, the arbitrator sided with the Association, issuing a ruling that the language of the Declaration is sufficiently clear to encompass the limitations set forth in the Statute.  Lenzi was not satisfied with the decision of the arbitrator so he appealed the decision to the Circuit Court, which likewise decided that the documents clearly provide for the authority in the Board of Directors and that decision was in compliance with the Statute.  The Circuit Court further found that the term “alteration” includes material alterations.

In its recent decision, the Appellate Court agrees with these conclusions, ruling that words of common usage should be given their plain and ordinary meaning.  The Appellate Court expressly stated that it would not arbitrarily limit the word “alteration” to exclude material alterations, finding that the word included all alterations and concluded that the Board had the authority in accordance with the Statute to make the change to the common element.

Whenever a condominium association is considering making changes to the common elements, the governing documents should be reviewed to make certain that this issue is sufficiently addressed and consult with counsel before making the change.  It is important to also be mindful that with the changes to the Statute that are effective July 1, 2018, the vote of the unit owners is required to occur “before the material alterations or substantial additions are commenced.”  Unfortunately, this statutory change fails to include what might happen if the vote does not occur prior to the alterations being completed.

There is currently no similar provision in Chapter 720 F.S. regarding homeowner’s associations.  In these situations, the provisions of the governing documents will determine the issue.  If there is no limitation on the alteration of the common properties or requirement of a vote of the owners in such event, the decision will typically be that of the board.  Confirmation from qualified counsel is recommended.