Category: Legal Morsels

In the case of Southfields of Palm Beach Polo and Country Club Homeowners Association., et al, vs. McCullough, Case Nos. 4D11-1130 and 4D11-4659 (April 17, 2013), the Fourth District Court of Appeal has clarified the obligation of the members of the board of directors in a homeowner association to take affirmative action to make certain that the governing documents of the community do not expire under the Marketable Record Titles to Real Property Act (“MRTA”) set forth in Chapter 712 of Florida Statutes.  In its decision, the Court affirmed the decision of the lower court that when faced with the expiration of the Covenants under MRTA, a board of directors must take the required action to make certain such expiration does not occur.

The court noted that MRTA was enacted in 1963 to simplify and facilitate land transactions by providing that unless properly preserved under the procedures set forth in the Statute, claims against property, which includes declarations of covenants, will expire after thirty (30) years.  Within the Statute is a procedure for preserving the covenants for another thirty (30) year period, which includes filing certain notices in the Public Records.  In the Southfields case, the board was refusing take the necessary action to comply with the Statute and, as such, risking the expiration of the covenants.  If the covenants expired, the association would no longer be able to enforce the restrictions or collect assessments.  The court confirmed that  when the governing documents generally mandate the board of directors to protect the community, which most governing documents will do, the board of directors must fulfill its duty and take the required action to preserve the declaration.  The failure of the board to do so with such knowledge of the duty could involve exposure to personal liability for the individual directors.

MRTA does not affect condominium associations.  However, for any homeowner association community with an original declaration of covenants that was recorded less than, but close to thirty years ago, the board should consult with the association attorney as soon as possible regarding the preservation of the covenants before the thirty year expiration, as the procedures after the expiration are much more difficult to accomplish.

Over the past few years, a large number of community associations throughout Florida have taken what had been previously considered an aggressive approach to the collection of delinquent assessments in the face of pending lender foreclosures. Continue reading “Third DCA Decision Negatively Impacts Associations That Have Foreclosed And Taken Title To A Unit.”

It has been a growing trend for residents to make the effort to circumvent pet restrictions in governing documents by claiming a disability that requires the use of a “service animal” in order to have full use and enjoyment of the property. Continue reading “Federal Court Decision further Narrows Service Animal Abuse.”

As most of us have seen in recent years, foreclosure actions filed by a first mortgagee typically are not being completed for 2-3 years or more, if at all. In most instances, an association foreclosure action against the same property is generally completed within 8-12 months. Continue reading “Association Considerations In Pursuing Foreclosure For Unpaid Assessments”

Many community associations are approached by residents with claims of special needs and requests for accommodations to the common elements, common areas and/or facilities at the community. Continue reading “Federal Court Decision Clarifies Limits On Requests For Reasonable Accommodations”

Governor Scott has signed into law House Bill 1013, which creates a new Section 553.835 of Florida Statutes, entitled “Implied Warranties.” The new Statutory section expressly limits the application of what is termed the doctrine or theory of implied warranty of fitness and merchantability or habitability for certain improvements in the community, as they are associated with the construction and sale of a new home. Continue reading “New Law Limits Warranty Claims Relative To Alleged Defects In New Construction.”

Many documents for community associations contain provisions authorizing the association to take measures the board considers necessary to resolve a covenant violation and to charge the owner for the work that is done. This is referred to as a “self-help” remedy. Examples of typical provisions include, but are not limited to, situations when the owner is not properly maintaining the property or has undertaken an unapproved alteration. Continue reading “Appellate Court Ruling Raises Questions Regarding Association Requirement of “Self Help” to Resolve Covenant Violation Rather Than Court”

In a recent decision, the Fourth District Court of Appeal was asked to determine whether a homeowner association had an obligation to enforce a covenant violation, when requested to do so by a homeowner, against others in the community.  In Heath v. Bear Island Homeowners Association, Inc., and Moscato, Case No. 4D10-3779, December 7, 2011, Continue reading “Court Clarifies Lack Of Association Obligation To Enforce Covenant Violations”

In a recent decision involving condominium issues, the Third District Court of Appeal was called upon to determine relative responsibilities between the association and unit owners for boat slips that were considered limited common elements under the governing documents. In Roberts v. Nine Island Avenue Condominium Association, Inc., Case No. 3D09-371, September 21, 2011, the Court decided that the association there did not have the obligation to insure these limited common elements under the governing documents or relevant Florida Statutes. Continue reading “Appellate Court Decision Creates Potential Ambiguities For Condominium Association Responsibilities”

Unpaid assessments continue to be a prime issue for a large percentage of community associations.  From time to time, owners within the community object to certain aspects of the manner in which the board of directors handles association affairs.  In some instances, the owners try withholding assessments and claim a set-off against whatever they are claiming is not right with the community. Continue reading “Court Clarifies Lack of Defenses For Association Assessment Foreclosure”