Kaye Bender Rembaum on ‘Ask the Experts’ | April 1, 2021
The 2021 Florida Legislative Preview, as Related to Community Associations | The Good, The Bad and The Ugly
Welcome to Rembaum’s Association Roundup’s 2021 legislative preview. The 2021 legislative session began on March 2 and ends April 30. Not only are all of the Bills discussed below subject to multiple changes, whether any of the Bills discussed below will become the law of the land remains to be seen. Unless otherwise clarified, the proposed legislation discussed below applies to condominium, cooperative, and homeowners’ associations.
House Bill 7 provides for relief from liability for Covid -19 related claims. This Bill provides protection from claims for damages, injuries, or death. While community associations are not specifically named in the legislation, corporations not- for- profit are included as are for profit business entities and charitable organizations. Corporations not- for- profit include the overwhelming majority of Florida’s community associations. At the time a plaintiff files a lawsuit at the courthouse, the plaintiff must also submit an affidavit signed by a physician actively licensed in the state of Florida which attests to the physician’s belief, within a reasonable degree of medical certainty, that the plaintiff’s Covid – 19 related damages, injury or death occurred as a result of the defendant’s acts or omissions. At this very early stage of the proceedings, admissible evidence is limited to the evidence demonstrating whether the defendant made a good faith effort to substantially comply with authoritative or controlling government issued health standards for guidance at the time the cause of action accrued. If the court determines that the defendant made such a good faith effort, then the defendant is immune from civil liability. If the court determines that the defendant did not make such a good faith effort, then the plaintiff’s case may proceed. However, absent at least gross negligence proven by clear and convincing evidence, the defendant is…Read the full article at Rembaum’s Association Roundup
Kaye Bender Rembaum Wins Seventh Consecutive FLCAJ Readers’ Choice Award for Best Community Association Law Firm
POMPANO BEACH, Fla., March 10, 2021 – Florida Community Association Journal (FLCAJ) Magazine announced this week that the law firm of Kaye Bender Rembaum is a 2021 Diamond Level Readers’ Choice Winner in the Legal Services category. This marks the seventh consecutive year for Kaye Bender Rembaum.
“We are honored to have won the Diamond Readers’ Choice Award for a seventh straight year, and to be recognized by our many satisfied clients, as well as Board members and owners who attend our many education programs, and our industry peers,” said firm member Michael S. Bender, Esq. “It is an achievement of which we are very proud and we want to extend our sincere thanks to all who voted for Kaye Bender Rembaum.”
The FLCAJ Readers’ Choice Awards is a unique recognition program that shines a spotlight on the positive and productive contributions of community association service providers throughout Florida. Awards are presented to companies that demonstrate, through their commitment to the community associations they serve, an exemplary level of proficiency, reliability, fairness, and integrity.
The FLCAJ Readers’ Choice Awards is an annual recognition program that debuted in 2014. More than 300 service providers were nominated for this year’s awards and over 11,000 ballots were cast, a twenty-five percent increase over last year.
For more information, please visit fcapgroup.com.
FLCAJ Contact Information:
- Florida Community Association Journal
- (800) 443-3433
- [email protected]
Selective Enforcement: A Grossly Misunderstood Concept
Without exception, the affirmative defense of “selective enforcement” is one of the most misunderstood concepts in the entire body of community association law. How often have you heard something like this: “The board has not enforced the fence height limitation, so it cannot enforce any other architectural rules”? Simply put, nothing could be further from the truth.
When a community association seeks to enforce its covenants and/or its board adopted rules and regulations, an owner can, under the right circumstances, assert an affirmative defense such as the affirmative defense of selective enforcement. An affirmative defense is a “yes I did it, but so what” type of defense. In civil lawsuits, affirmative defenses include the statute of limitations, the statute of frauds, waiver, and more. However, it’s just not as simple as that. For example, a fence height limitation is a very different restriction than a required set back. Under most if not all circumstances, the failure to enforce a fence height requirement is very different from the failure to enforce a setback requirement. Ordinarily, the affirmative defense of selective enforcement will only apply if the violation or circumstances are comparable, such that one could reasonably rely upon the non-enforcement of a particular covenant, restriction, or rule with respect to their own conduct or action. Read the full article
Kaye Bender Rembaum presents ‘Ask The Attorneys’ | February 18, 2021
Legal Morsel | Court Concludes That Mistakes on a Claim of Lien Does Not Invalidate the Claim
LEGAL MORSELS | BY ROBERT KAYE, ESQ., B.C.S.
The Florida Fourth District Court of Appeal recently provided a ruling regarding the ability of a homeowner’s association to successfully complete a foreclosure for unpaid assessments when there was an error in the amount indicated as being owed on the claim of lien. In the case of Pash v. Mahogany Way Homeowners Association, Inc., Case No. 4D19-3367, January 27, 2021, the Appellate Court was faced with the challenge of a lower court ruling in favor of the homeowner’s association in which the homeowner, Mr. Pash, had claimed that the amount indicated on the claim of lien was overstated from what was owed. The record also reflected that the homeowner’s association admitted that it made a mistake in its calculation of the assessments on the lien but corrected the amount when it filed the foreclosure case. It was not disputed that some assessments were delinquent when the foreclosure case began.
In a split decision, a majority of the Court focused on the requirements of Section 720.3085(1)(a) of Florida Statutes, as well as the provisions of the Declaration of Covenants for the Community. The Statute provides the following:
To be valid, a claim of lien must state the description of the parcel, the name of the record owner, the name and address of the association, the assessment amount due, and the due date. The claim of lien secures all unpaid assessments that are due and that may accrue subsequent to the recording of the claim of lien and before entry of a certificate of title, as well as interest, late charges, and reasonable costs and attorney fees incurred by the association incident to the collection process. The person making payment is entitled to a satisfaction of the lien upon payment in full.
While the case was reversed for other reasons, the majority of the Court stated that “Nothing in section 720.3085(1)(a) suggests that the claim [of lien] must be free of error for it to serve as an otherwise valid claim of lien.” The Court also concluded that the statute, as written, does not provide that an error in the amount stated in the claim of lien invalidates an otherwise valid claim by an association. Rather, the Court indicated that the association is merely asserting “a claim” in the lien and the association remains obligated to prove its claim in order to prevail in its case and homeowners have the ability to contest the claim made.
The Florida Condominium Act contains substantially the same provision as set forth above in Section 718,116(5)(b) F.S. Consequently, it is anticipated that a lower court would likely apply the conclusions of this case to a condominium association foreclosure case.
It remains to be seen whether this holding is going to be viewed as an anomaly or will be followed by the remaining District Courts in Florida. Notwithstanding this easing of the perception of association requirements on this point, it remains the recommendation that all collection efforts by associations be fully documented to a “zero” balance on the specific homeowner account to minimize any possible adverse conclusion in an assessment foreclosure case. Legal counsel familiar with community association law should be involved to assist in the formal collection efforts against any homeowner.
Florida’s 2021 HB 7, SB 72 and SB 630
The following Florida House and Senate Bills were referenced during our February 17, 2021 appearance on KW Property Management & Consulting’s webinar:
House Bill 7 (HB 7) | Civil Liability for Damages Relating to COVID-19; Provides requirements for civil action based on COVID-19-related claim; provides that plaintiff has burden of proof in such action; provides statute of limitations; provides retroactive applicability.
Senate Bill 72 (SB 72) | Civil Liability for Damages Relating to COVID-19; Providing requirements for a civil action based on a COVID-19-related claim; providing that the plaintiff has the burden of proof in such action; providing a statute of limitations; providing severability; providing retroactive applicability, etc.
Senate Bill 630 (SB 630) | Community Associations; Prohibiting insurance policies from providing specified rights of subrogation under certain circumstances; authorizing a condominium association to extinguish discriminatory restrictions; providing requirements for natural gas fuel stations on property governed by condominium associations; authorizing parties to initiate presuit mediation under certain circumstances; revising the allowable uses of certain escrow funds withdrawn by developers, etc.
KBR Palm Beach Gardens to Host “Ask the Attorneys” on Thursday, Feb. 18th | Live on Zoom
On Thursday, February 18th, 4:00pm to 6:00pm, attorneys from our Palm Beach Gardens office will host, via Zoom, a live “Ask the Attorneys” event. You will determine the course of discussion for the evening in this town hall-style format. While we look forward to holding these in person in the near future, we will join you on Zoom, back by popular demand!
Click HERE to reserve your free seat.
Covid Vaccine, National Relief & Legislative Updates for Community Associations | February 17th
On Wednesday, February 17th KBR joins KW Property Management & Consulting for a LIVE Webinar with US Congressman Ted Deutch, from Florida’s 22nd Congressional District. Rep. Deutch will be offering us updates on vaccinations and the new relief package coming from Washington, DC.
Attorneys Jeffrey A. Rembaum and Michael S. Bender from Kaye Bender Rembaum will speak about what community association legislation is currently being discussed in Tallahassee and what board members need to be aware of.
Pre-registration for this webinar, taking place on February 17th at 3:00 PM is required. You can register by clicking HERE.
Hosting Virtual Meetings via Zoom
The most asked question of 2020 is this: Can our association host our board and annual meetings using Zoom or another similar virtual/electronic platform? There is no doubt that technology will always advance faster than legislation. In fact, advances in technology seem to take place in light speed whereM as advances in legislation seem to travel at the speed of your average turtle.
As to board meetings, §718.112(2)(b)5 of the Condominium Act provides, “A board or committee member’s participation in a meeting via telephone, real-time videoconferencing, or similar real-time electronic or video communication counts toward a quorum, and such member may vote as if physically present. A speaker must be used so that the conversation of such members may be heard by the board or committee members attending in person as well as by any unit owners present at a meeting.” Note that similar provisions are provided for cooperative associations in… Read the rest in Rembaum’s Association Roundup