Limitations Imposed On Using Criminal Background Information As Basis For Denying A Sale Or Lease Application

Many community associations throughout Florida require that prospective sales and leases be reviewed and approved or disapproved by the board of directors prior to the transaction being completed.  Among the factors that are often reviewed in making the decision are the results of a criminal background check.  In light of a publication on April 4, 2016, from the Office of General Counsel for the U.S. Department of Housing and Urban Development (HUD), using the criminal background to disapprove could result in a successful claim for discrimination under Fair Housing laws.

In its published “Guidance on Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real Estate-Related Transactions” (“Guidance”), HUD has indicated that, although “criminal record” is not a protected class under Fair Housing laws, HUD is of the opinion that criminal history-based restrictions on housing opportunities can be found to violate the Fair Housing Act if, without justification, the application of the restriction falls more often on individuals within a protected class (such as race or national origin).  In the publication, HUD cites to national statistics that reflect a disproportionately higher percentage of African Americans and Hispanics as having a criminal record relative to the general population.  By this analysis, HUD has stated that it is possible to conclude that application of a “criminal record” standard in denying housing opportunities could have what it calls a “disparate affect” on the protected classes, which results in discrimination under the Fair Housing laws.

HUD indicates that a violation of the Fair Housing Act can occur by an association when the policy or practice has an unjustified discriminatory effect, even when the association had no intent to discriminate.  It warns that certain policies that have a discriminatory effect violate the Act if the policy is not supported by a legally sufficient justification.  To avoid that conclusion, the policy must be necessary to serve a substantial, legitimate nondiscriminatory interest of the association or there is no other method that has a less discriminatory effect available.

When such a claim of discrimination is made, the association will be required to prove that the challenged policy is justified, being necessary to achieve a substantial, legitimate, nondiscriminatory interest of the association.  It may not be hypothetical or speculative.  Evidence must be provided by the association of the required interest, and that the policy actually achieves that interest.  HUD recognizes as a legitimate concern the interest of ensuring resident safety and protecting property to support a policy that evaluates the criminal background of an applicant as a basis for denial.  Proving that the policy actually assists in protecting resident safety and/or property will be required.  Having a blanket policy of disapproving any applicant with a criminal conviction will not be sufficient to avoid a finding of discrimination if such a claim is made.

HUD further warns that excluding individuals because of only an arrest, without a conviction or guilty plea, will not be able to meet the burden of proof for the association that is required under the guidelines.  With prior convictions, HUD also indicates the need to be mindful of the types of crimes that are included to only those in which there is a demonstrable risk to resident safety and/or property and not including those that do not.  The nature and severity of the conviction must also be identified, as well as the amount of time that has passed since the criminal conduct occurred.  In short, the nature, severity, and recency of the criminal conduct are required elements of such policy.  In all instances, the claims will be evaluated on a case-by-case basis.  For example, a conviction for shoplifting from 25 years prior to the application will likely not be a sufficient basis for denying an application.

If the association is able to meet its burden of demonstrating that the policy is justified, HUD must then identify whether the interest of the association could be served by another practice that has a less discriminatory effect.  It is suggested in the Guidance that a policy that contains individualized assessment of the criminal conduct of the applicant or relevant mitigating information will be more supportable.  Such individualized information includes: the facts or circumstances surrounding the criminal conduct; the age of the individual at the time of the conduct; evidence that the individual has maintained a good tenant history before and/or after the conviction; and, evidence of rehabilitation efforts.  It also suggests that the association delay consideration of criminal history until after the financial and other qualifications are verified.  This way, if other issues are sufficient to reach a conclusion of disapproval, the criminal background will not be an issue of concern.

One statutory exemption that is allowed under a blanket prohibition policy is a person who has been convicted of the illegal manufacture or distribution of a controlled substance, as defined by statute.  However, this does not extend to a conviction only for possession of the controlled substance.

While criminal background may still be used by associations in deciding whether or not to approve or disapprove a proposed sale or lease, since there is now a heightened risk of a possible discrimination claim, associations must now be more careful and specific in setting the standards for circumstances that will result in a disapproval.  Only convictions of crimes that are of a nature and severity that might threaten the safety of other residents should be included, as well as reasonable limitations as to the time that has passed since the conviction.  Such policies should be in written form within the association records and published to all owners.  Prior to setting up such criteria in the approval procedures of the association, consultation with the association attorney should be undertaken to be certain that the association exposure is minimized.

Appellate Courts Clarify Statue Of Limitations Affect On Claims To Invalidate Amendments To Governing Documents

The declaration of condominium is the “constitution” governing the ownership and control of the condominium property and operations of the association. The declaration of covenants and restrictions governing a homeowners’ association is essentially the same – it is a deed restriction typically limiting the use, occupancy, maintenance and control of the property within a deeded community.

Understanding that these are the most significant documents governing the community (whether condominium or HOA), typically amendments or changes to these documents require the affirmative vote of a super-majority of the owners. If the document does not state the voting percentage specifically, the various Florida Statutes for the different types of community provide for at least two-thirds (2/3rds) of the total membership to vote in favor for an amendment to a declaration of condominium (with the exception of other identified items that require 100% to change) per Section 718.110(1)(a) F.S., and Section 720.306(1)(b), F.S.

It is reasonable to assume that amendments that did not receive the requisite amount of membership consent would automatically be invalidated by the courts. This is only true, however, if the issue is brought to the courts in a timely fashion. In some cases, simply waiting around and failing to take action may convert what should be an invalid amendment into an enforceable obligation due to the application of the statute of limitations.

A Statute of Limitations sets forth the maximum time frame to file a legal action making a claim or to enforce a party’s rights, depending upon the type of claim being made. After that statutorily-indicated time period runs, any claim asserting that cause of action will likely fail – regardless of whether the person or entity bringing the case is “right” or wrong” in the empirical sense.

In Florida, the most often cited Statute of Limitations is found in Section 95.11, F.S., which contains the time limits for the following common types of cases:

FIVE YEARS: An action on a judgment or court decree; an action on a written contract; an action to foreclose a mortgage and other actions founded on written instruments;

FOUR YEARS: An action founded on negligence; to determine paternity (with the time running from the date the child reaches the age of majority); an action founded on the design, planning, or construction of an improvement to real property; product liability actions; trespass actions; actions based on fraud, etc.;
TWO YEARS: An action founded on professional malpractice; actions to recover overtime wages; actions based on libel or slander; and,

ONE YEAR: Actions for specific performance, to enforce equitable liens and the like.

In three (3) recent cases, the Florida appellate courts have found that the statute of limitations to challenge the validity of an amendment to a declaration of condominium or an amendment to a declaration of restrictive covenants is five (5) years, as a claim on a contract. In Harris v. Aberdeen Property Owners Association, Inc., decided in 2014, the Fourth District Court of Appeal ruled that a homeowner could not challenge the validity of an amendment to a master association declaration that required owners in a sub-association within the community to become members of the club. The Court ultimately ruled that the homeowner could not challenge the validity of the amendment because the amendment was recorded more than five (5) years before the lawsuit was filed. While the homeowner was able to continue her case on a request for declaratory relief, it was clear that her effort to invalidate the amendment altogether did not succeed.

In Silver Shells Corporation v. St. Marten at Silver Shells Condominium Association, Inc., decided in 2015, the First District Court of Appeal found that a condominium association waited too long to challenge a very significant amendment recorded by the developer. In that case, the developer identified the beach lot as common area, but retained control over a portion of that lot to construct a future pavilion or other amenities. In 2000, the developer recorded an amendment removing the beach lot from the common area altogether so it could retain control over and ownership of that property. The association objected, claiming the developer basically “stole” a valuable property right and property ownership in violation of the original master declaration, so it filed a lawsuit challenging the amendment in 2009. The Court ruled that since the association claimed the developer breached the master declaration, the five-year statute of limitations associated with an action on a written contract applied. The association lost the case. In the Harris case, the Court started the statute of limitations clock ticking when the Plaintiff acquired title to her property. In the Silver Shells case, the Court applied Section 718.124, Florida Statutes and therefore did not start the clock ticking on the statute of limitations until turnover of control from the developer. Even with that later start date, the association there waited too long to make the challenge and lost out.

Another ruling issued within the last month follows this same logic. In Hilton v. Pearson and Paradise by the Sea Property Owners Association, Inc., the First District Court of Appeal refused to invalidate two amendments to the declaration of restrictive covenants, regardless of the plaintiffs’ claim that the amendments did not receive the proper vote. The amendments at issue were adopted in 2001 and 2005, and the law suit was filed in 2013.

Bottom line is that whenever amending governing documents, the board should confer with experience association counsel to ensure the association is following all required procedures so as to avoid a successful legal challenge. However, if the board has reason to believe proper procedures were not followed, be aware that there is a limited window of time within which to raise a legal challenge, and it is also best to confer with legal counsel before doing so.

Pudlit Revisited: Caution Is Recommended For All, Including Condominium Associations

As previously reported in Legal Morsels in June 2015, (at a recent decision of the Fourth District Court of Appeals entitled Pudlit 2 Joint Venture, LLP v. Westwood Gardens Homeowners Association, Inc., has made the collection of assessments a larger challenge against parties that buy property at mortgage foreclosure sales.  The Pudlit decision ruled that when the covenants of a homeowner’s association community contains a provision eliminating the obligation of a party who acquired property within the community at a lender’s foreclosure sale to pay past due assessments, then such homeowner is not responsible for any assessments that came due before they owned the property.

Previous to this decision, the position of the associations has been that the statutes made the new owner “jointly and severally” liable for past due assessments not paid by the previous owner, since the interest of the new owner did not occur until title was passed through the foreclosure sale.  However, the Pudlit decision has eliminated that argument in many instances, at least for now.  Although the  Pudlit decision dealt only with homeowner’s associations, efforts are being made to extend this ruling to condominiums.  The current trend has seen third party purchasers argue in court that Pudlit should be applied to condominium associations.  In Palm Beach County, a small number of circuit court decisions have already applied the Pudlit principles to condominium associations.  An oddity in the decision is that a third party purchaser at a lender sale will pay less to the association than the foreclosing lender, had the lender taken title at the sale.

The effects of the Pudlit decision can be severe to associations, as many third party purchasers are now demanding a reduction in the amounts owed to associations to comply with the Pudlit decision.  Some third party purchasers are even initiating litigation against associations in order to have the court determine the amount of past due assessments, if any, that they are obligated to pay.  Another strategy being employed is for the third party purchaser to pay in full, with a notation that the payment is “under protest” and then sometime later, a law suit is filed to recover the funds previously paid.

To avoid unnecessary and costly litigation, it is recommended to have an experienced  association attorney review the current provisions of the governing documents for your community.  Each declaration is different and while some are similar, the smallest change in a provision may have a strong effect on whether the Pudlit decision might be applied by the courts.  Additionally, it is also recommended to have an experienced association attorney review the governing documents of the community to see whether an amendment approved by the owners would be beneficial.  Amendments to the governing documents can help to maximize an ability of an association to collect past due assessments from any owner that acquires the property.   By taking these protective steps, it may help to ensure that the association recovers the maximum amount of past due assessments possible, rather than only collecting little to no assessments on a property that has been past due for an extended period of time.  The Firm of Kaye Bender Rembaum has assisted many residential homeowner and condominium associations with this type of document review and amendment process, and is available to assist on such issues and concerns.

Homeowner Associations Be Aware And Wary Of The Marketable Record Title Act

Under current Florida law, there is a trap that can result in the expiration of the covenants for the community.  Under the Marketable Record Title Act, Chapter 712 of Florida Statutes (“MRTA”), residential homeowners’ associations are required to preserve the integrity of the declaration (of covenants and restrictions) for the entire community to retain the status of the declaration as the source of marketable title with regard to the transfer of a member’s residence.  Florida law requires that this process be undertaken at least once every thirty (30) years.  The failure to take such action prior to the expiration of the thirty (30) year time will result in the expiration of the covenants, which can then be reinstated only with a vote of the homeowners.  (These issues do not apply to condominiums.)

While MRTA is relatively complicated, in simple terms, the key date to be aware of is the date the declaration of covenants is recorded in the public records of the county where the property is located.  In order to ensure that the integrity of the declaration is retained, which allows the board to continue to strictly and uniformly enforce all provisions therein, including the collection of assessments, it is necessary to take the required steps to preserve the declaration within thirty (30) years of the date of its original recording.

If undertaken before the expiration, the board must hold a properly noticed board meeting, which notice references that the purpose of the meeting is to “address the Statement of Marketable Title Action”.  Written notice of the meeting must be provided to all owners at least seven (7) days in advance of the meeting date and at the meeting, at least two-thirds (2/3) of the members of the board must vote to approve the recording of the Statement of Marketable Title Action, which will then serve to retain the status of the declaration as the source of marketable title, and renew it for another thirty (30) year period from the date that Statement is recorded in the public records.

It is also important to be aware that even if the residential homeowners’ association community amended its declaration in part, or completely, during the thirty (30) years following the initial recording, this will NOT extend the “life” of the declaration and the act to preserve the declaration should still be undertaken within thirty (30) years of the date of the original recording of the declaration.

Should the thirty (30) years pass without the proper preservation process being undertaken and recorded, the association risks the likelihood of the declaration has expired.  Should that occur, there is a process available under Chapter 720 of Florida Statutes to reinstate the declaration.  This process is much more involved and costly to the community, and requires a vote of the homeowners in order to reinstate the declaration, and an approval of the documents by the Florida Department of Financial Affairs in Tallahassee. As such, since there is a simple way to avoid it through renewal preservation, all residential homeowner association board members are urged to take immediate action to address this issue, or at least to determine how close they are to the thirty (30) year expiration period.  It is suggested that the renewal process for the declaration take place well in advance of the expiration date.

The Firm of Kaye Bender Rembaum has assisted many residential homeowners’ associations with this preservation process, and are available to assist any residential homeowners’ association with the preparation of all proper documentation needed to ensure that this process is properly and timely undertaken, or, in the event that the declaration has already expired, to assist with the process of reinstatement.

2015 Legislation Affecting Community Associations

Although the 2015 Legislative Session was abbreviated when the House abruptly adjourned prior to the scheduled end of the Session, some new legislation affecting community associations was passed and subsequently signed into law by the Governor.  Of note is what is referred to as “House Bill 791″, which makes changes to Chapters 617, 718, 719 and 720 of Florida Statutes.  Also passed is “House Bill 779″ which provides certain protections for tenants of foreclosed properties.  “House Bill 643″ was also passed and makes changes to the Condominium Act relating to termination of condominiums.  “House Bill 87″ was passed, making changes to Chapter 558 F.S., involving construction defects.  House Bill 779 was made effective immediately upon being signed by the Governor (which has already occurred as of this writing), House Bill 643 was effective June 15, 2015, House Bill 87 is effective October 1, 2015, and all other changes are effective as of July 1, 2015.  (Below are highlights of changes that most affect the operations of community associations.  References to “718″ are to the Condominium Act; “719″ is to the Cooperative Act; and, “720″ is to Homeowners’ Association Act.)




The most significant of the new legislation affecting community associations is in House Bill 791.  In our opinion, the most significant change in this House Bill is a procedure for electronic voting has been adopted and established for condominiums, cooperatives and homeowners associations.  New Sections 718.128, 719.129 and 720.317 F.S., have been added to the respective Statutes, entitled “Electronic voting”, which are essentially the same for all three.

Under these new provisions, an association may conduct its election and any other owner votes through an internet-based online voting system.  The new Statute requires the prior consent of an owner, in writing, to vote online.  Additionally, the association is required to provide (a) a method to authenticate the unit owner’s identity to the online voting system; (b) for elections of the board, a method to transmit an electronic ballot that ensures the secrecy and integrity of each ballot; and, (c) a method to confirm, at least 14 days before the voting deadline that the owner’s electronic device can successfully communicate with the online voting system.  Additionally, the online voting system must be able to authenticate the owner’s identity, and the validity of each electronic vote to ensure that the vote is not altered in transit.  A receipt for the vote received through the online voting system must be provided to the owner.  For elections to the board, the system must be able to permanently separate any authentication or identifying information from the electronic election ballot so that it is impossible to tie an election ballot to a specific owner.  The voting system must also be able to store and keep electronic votes accessible for recount, inspection and review purposes.

In order to use this voting procedure, the board of directors must adopt a resolution containing specific requirements, including notices to the unit owners of the option, requirement of their consent and opportunity to opt out.  If the resolution is to be considered at a board meeting, written notice of that meeting must be mailed, delivered or electronically transmitted to the owners and posted at the property.  If an owner consents to online voting, the consent is valid until the owner opts out.


Section 617.0721 F.S., which applies to all not-for-profit corporations, including community associations, is revised regarding voting by members of the association to allow a copy, facsimile transmission or other reliable reproduction of the original proxy to be used instead of the original proxy.  To do so, the copy must be a complete reproduction of the entire proxy.


Section 718.111(11)(j) F.S., regarding insurance, has been amended to clarify that if there is no insurable casualty event that caused the damage, the maintenance provisions of the governing documents will provide for the determination of responsibility for the repairs.


Section 718.111(12)(a)(15) F.S., relative to the “catch-all” provision of what is identified as the Official Records of a condominium association, open to inspection to owners or their authorized representatives, has been modified to add the word “written” regarding such records.


Sections 718.112(2)(d), 719.106(1)(d)(1)(b)(3) and 720.303(2)(c)(1)  F.S. have been modified to eliminate the need to have the authority in the bylaws of the association in order to use electronic mail (e-mail) for meeting notices.  As a result, all meeting notices,  including for board and committee meetings, may be provided by e-mail.  However, the requirement that owners provide written consent to receive notices by electronic mail remain.


Section 718.112(2)(f) F.S. regarding the annual budget has been revised to clarify that minimally, the items listed in Section 718.504(21) F.S. must be included in a proposed budget.  Subsection 2 has been split into two parts (a and b) to address reserves, with subsection (a) addressing the reserves in general, and subsection (b) addressing reserves before the turnover of control of the association by the developer to the non-developer owners.  Subsection (b) further clarifies the ability of the developer to vote its units to waive reserves.


Sections 718.116(3) and 719.108(3) F.S. have been revised to clarify that the application of payments made on a delinquent account are to be applied in the manner specified within the Florida Statutes, notwithstanding any purported “accord and satisfaction” or settlement agreement claimed by the payer by delivery of the payment.  This is in response to a recent case in which the court ruled in a manner contrary to the understood intent of the Statute since 1991 (see our Legal Morsel article on this case from August 14, 2014, which you can view online at:  These provisions also state that they are intended to clarify existing law, which makes the application of the change retroactive.


Section 718.707 F.S., relating to the bulk assignee or bulk purchaser of units, has been amended to extend the period of time for qualification from July 1, 2016 to July 1, 2018.


Sections 718.303, 719.303 and 720.305 F.S. have been revised to clarify the proceedings for fining, which involve the board first levying a fine, and then a fining committee holding a hearing to approve or disapprove it.  It further clarified that the role of the fining committee is only to confirm or reject the fine proposed by the board.  Section 719.303(3)(b) F.S. has been modified regarding the qualifications for those who sit on the fining committee to mirror Section 718.303(3)(b), F.S. and be only “other owners who are neither board members nor persons residing in the board member’s household.  Sections 718.303(4) and 720.305(3) F.S. were  revised to clarify that the “monetary obligations” that qualify for suspension of use rights include a fee, fine or other monetary obligation.  Sections 718.303(5) and 720.305(4) F.S. have been revised to further clarify that when the voting rights of an owner are suspended, the total number of eligible units is reduced for the purpose of calculating the necessary percentage to pass a proposal.  A new subsection 718.303(7) and 720.305(6) F.S., have been added to clarify that any authorized suspension provided in the Statute applies not only to the member, but also to the tenants, guests, or invitees, and even if the delinquency or failure that resulted in the suspension arose from less than all of the multiple units owned by a member.  This means that if an owner owns 3 units and is delinquent more than 90 days on one of the units, the voting rights on all 3 units may be suspended.


Section 720.301 F.S. was amended to include the rules and regulations of the association under the definition of “governing documents”.

Section 720.3015 was created and added to the Statute to provide a title to Chapter 720 F.S. which is the “Homeowners’ Association Act.”


Section 720.306(9) F.S. has been amended regarding qualification to serve on the board.  The revisions include that a person who is delinquent in the payment of any fee, fine or other monetary obligation to the association on the day that he or she could last nominate himself or herself or be nominated by another to the board may not seek election.  That person’s name should not be included on the ballot.  It further provides that any serving board member who becomes more than 90 days delinquent in the payment of any fee, fine or other monetary obligation to the association shall be automatically deemed to have abandoned the seat on the board.  If the board member owns more than one property, the delinquency on any parcel owned by that board member will disqualify him or her from serving on the board.


House Bill 779 adopts changes to Chapter 83 of Florida Statutes, which is the landlord-tenant  statute.  A new Section 83.561 F.S. has been added, entitled “termination of rental agreement upon foreclosure.”  This new Statute creates certain rights and entitlements in tenants following the foreclosure sale.  There is no express distinction between a mortgage and association lien foreclosure in this new provision, which creates the presumption that it applies to an association foreclosure as well.  The tenant is allowed to remain in possession of the premises for a 30 day period following the date that the purchaser at the foreclosure sale delivers the 30-day notice of termination.  The Statute also provides a form of suggested language that the 30-day notice should include.  A writ of possession may only be applied for after the expiration of the 30-day period.  The new Statute does not apply to specified situations which include the tenant being the mortgagor in the subject foreclosure or is the child, spouse, or parent of the mortgagor in the subject foreclosure.  (This particular language can be interpreted to conclude that the Statute only applies to mortgage foreclosures since it does not reference the “former owner”.)  It shall also not apply if the tenant’s rental agreement is not the result of an “arm’s length transaction”, meaning that there is a special relationship with the former owner.  Additionally, it will not apply if the rental agreement allows the tenant to pay rent that is substantially less than the fair market rent, unless the rent is subsidized by a federal, state or local authority.


Changes are made to Section 718.117 F.S. involving the technical issues involving termination of condominiums, and is effective June 16, 2105.  The technical issues are byond the scope of this article and it is urged that any condominium association considering termination of all or part of the condominium consult with an attorney familiar with these issues.


Technical changes have been made to Chapter 558 F.S. involving construction defect claims, which are also very technical in nature.  As noted above, the changes are effective October 1, 2015.  It remains recommended for associations to consult with their attorney on the affects of this Chapter of Florida Statutes whenever entering into construction contracts or disputes over construction defects of any kind.

Appellate Court Ruling On Claims Of Third Party Purchasers At Lender Foreclosures Likely Harmful To Homeowner Associations

In recent years, legal issues have been raised by third party purchasers at a lender foreclosure sale following the changes in Chapter 720 of Florida Statutes governing homeowners associations, and in particular the provision which makes a new owner liable for a prior owner delinquency in assessments. A large majority of governing documents of homeowners associations contain provisions that exempt any purchaser at a lender foreclosure sale from liability for any prior delinquency on the property. After the changes to Section 720.3085 F.S. in 2007, associations considered such third party purchasers to owe all delinquencies based upon the provisions of the Statute in place at the time these purchasers acquired title to the property and the lower courts have regularly agreed with that conclusion when a challenge was raised. Many such investor-purchasers objected to these claims, suggesting that they should be covered by the exemption in the documents. On May 27, 2015, the Fourth District Court of Appeals answered this question in favor of the position of the third-party purchasers in Pudlit 2 Joint Venture, LLP v. Westwood Gardens Homeowners Association, Inc., Case No. 4D14-1385.

Pudlit 2 Joint Venture, LLP (“Pudlit”) purchased properties within the Westwood Gardens Community from lender foreclosure sales. As many homeowner associations have recently done, the Westwood Association demanded all unpaid assessments which predated the Certificate of Title on the properties, which Pudlit paid “under protest and with full reservation of all rights and remedies,” and then filed a law suit against the Association for a declaratory judgment. Of particular interest in this case was certain particular provisions of their declaration of covenants, which indicated specifically that “the personal obligation for delinquent assessments shall not pass to [a] successor in title unless expressly assumed by [such successor]” and, that in the event of a foreclosure sale, it “shall extinguish the lien of such assessments as to payments thereof which become due prior to such sale or transfer. . .” Pudlit claimed that the effect of these provisions in the declaration wiped out the Westwood claim against them. Westwood claimed that the Statute in place at the time of the foreclosure sale governed their rights and obligations, not the declaration.

The Trial court ruled in favor of the Association, which was appealed here. The Appellate Court reversed in favor of Pudlit, finding that a third party purchaser at a lender foreclosure sale is a “third party beneficiary” to the provisions of the governing documents of the Westwood Association that provided the exemption, notwithstanding the existing Statute on the date Pudlit took title. The Court decided that the Statute crossed the “constitutional” line and impaired the “existing” contract rights of Pudlit, making the Statute unenforceable. The Court further indicated its opinion that the Statute was not retroactive in its intent and, in order for any homeowner association that was in existence prior to the Statute being enacted in 2007 to recover similar claims against a third party purchaser, it must have language in its governing documents that incorporates the changes to the Statute and/or expressly incorporates the provisions of Section 720.3085 F.S. It was the conclusion of the Court that the Declaration of Covenants for the Westwood Gardens Community “expressly creates rights for successors in title,” such as a third party purchaser at a lender foreclosure sale.

The provisions of the governing documents in this case are substantially similar to a large percentage of existing declarations of covenants in Florida. It is recommended to have the association attorney review the current provisions of the governing documents for all homeowners associations and evaluate the exposure of the association to this type of defense and/or claim. To maximize the ability of the association to recover unpaid assessments from third party purchaser at a lender foreclosure sale, amendments to the governing documents should be undertaken by the association as quickly as possible. The amendments that are suggested would minimally include a provision that automatically incorporates changes to Florida Statutes as they are adopted by the Legislature. For greater protection, another amendment can be included which expressly incorporates the provisions of Section 720.3085 F.S., as it may be amended from time to time.

Florida Supreme Court Updates Activities Of A Community Association Manager That Constitute The Unlicensed Practice Of Law

In its decision made in 1996, Florida Bar re: Advisory Opinion – Activities of Community Association Managers, the Florida Supreme Court issued an advisory opinion regarding whether or not certain activities of licensed Community Association Managers (CAMS) constitute the unlicensed practice of law.  In 2012, the Standing Committee on Unlicensed Practice of Law of the Florida Bar (the “Committee”) received a new petition to review these activities and some others, to clarify or update the decisions made in 1996 and advise the Supreme Court of its findings.  Public hearings were held and a report was submitted to the Court by the Committee in 2013.  The Court issued its updated ruling on these issues on May 14, 2015, in a similarly titled decision, Florida Bar re: Advisory Opinion – Activities of Community Association Managers, Case No. SC13-889.  In the decision, there is some clarification, but also unresolved questions on many tasks.

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Retrofitting In Condominiums The Clock Is Ticking

Recent changes to Florida Statutes have included provisions in the Fire Safety Code that requires condominiums to undertake installation and/or changes to certain fire/safety related devices within the condominiums.  Due to the significant expense typically required to retrofit a condominium in the manner contemplated in the Fire Safety Code, and in recognition of the significant burden this would place on the unit owners, changes to the Condominium Act (Chapter 718 of Florida Statutes) allows an association to vote to “opt-out” of the requirement to retrofit the fire sprinkler system that services the condominium, including the common elements, association property, and the units.

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Navigating Assistance Animal Requests

In recent months, formal requests to pet restricted communities for a reasonable accommodation to keep an emotional support animal has increased significantly.  Additionally, there have been new court decisions and other developments in the Fair Housing laws since our last article in Legal Morsels in 2011 (see  The following updates and supplements our prior posting on the topic.

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