1200 Park Central Blvd. South, Pompano Beach, FL 33064
9121 North Military Trail, Suite 200, Palm Beach Gardens, FL 33410
855 E SR 434., Suite 2209, Winter Springs (Orlando area), FL 32708
1211 North Westshore Blvd., Suite 409 Tampa, FL 33607
Offices in Miami-Dade (by appointment)
Reach any office: 800.974.0680

1200 Park Central Blvd. S., Pompano Bch, FL 33064
9121 N. Military Trail, Ste. 200, Palm Bch Gdns, FL 33410
855 E SR 434., Suite 2209, Winter Springs (Orlando area), FL 32708
1211 N. Westshore Blvd., Ste. 409, Tampa, FL 33607
Offices in Miami-Dade (by appointment)
Reach any office: 800.974.0680

News from CAI | Condo Safety Legislation Passed in the Special Session

Per a May 26, 2022 email we received from CAI: This week the Florida legislature was in special session and condominium safety was one of three initiatives addressed. CAI Florida Legislative Alliance is pleased to announce that SB 4D – Building Safety Act for condominium and cooperative associations passed unanimously through both the House and Senate on May 24th and 25th respectively, after a powerful and heartfelt appreciation for the sponsors, Sen. Jennifer Bradley (R-5), Senator Jason Pizzo (D-38) and Rep. Daniel Perez (R-116) was expressed by Members in both the House and Senate. Governor DeSantis signed the bill on May 26th. This bipartisan legislation is the result of tireless advocacy by you, our membership; thanks to your determination, CAI Florida Legislative Alliance was able to work with legislators in both chambers to craft an effective condo safety bill that will protect Floridians. CAI representatives were in Tallahassee this week during the legislature’s special session and were the only ones to speak on behalf of the new bill.

The legislation includes a framework largely based on CAI public policy recommendations for:

  • Building inspections as structures reach 30 years old and every 10 years thereafter.
  • Mandatory reserve study and funding for structural integrity components (building, floors, windows, plumbing, electrical, etc.).
  • Removal of opt-out funding of reserves for structural integrity components.
  • Mandatory transparency—providing all owners and residents access to building safety information.
  • Clear developer requirements for building inspections, structural integrity reserve study, and funding requirements prior to transition to the residents.
  • Engagement of the Florida Department of Business and Professional Regulation and local municipalities to track condominium buildings and the inspection reporting.

Associations will have two years to comply with these requirements. CAI will be working closely with policymakers before the bill takes effect in 2024 to be certain the new requirements and directives are workable and practical for Florida’s impacted associations.

Since June 24, 2021, the tragic collapse of Champlain Towers South where 98 people perished and many others lost their homes, CAI mourned, prayed, and committed to doing whatever we could to make sure this never happened again. Following the collapse, CAI members and volunteers worked closely with Florida Sens. Jennifer Bradley and Jason Pizzo, as well as Rep. Daniel Perez to lead the efforts to pass this important legislation.

The comprehensive legislation makes certain that no matter in what county a condominium or cooperative is located, they will be periodically inspected with information shared with unit owners, local building officials, and prospective buyers. CAI will continue working with policymakers to make certain that associations have the time to meet these changes and that these new processes are practically workable for associations while making certain they are fiscally sound and physically safe.

Sincerely,
CAI Florida Legislative Alliance

Hurricane Season Preparedness

Michael S. Bender, Esq., BCS

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 that emergency generators and 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. Write a list of owners and 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 the 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. Make a 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. Check all insurance policies and 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. Maintain bank account details and 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. Prepare to mitigate 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. Remove debris.Have a plan for the 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.
  13. Reach out to your professionals. Be in touch with your management team and legal counsel to assist in guiding you in making fully informed business decisions to best protect your Community

Rental Restrictions in Homeowners’ Associations

Robert L. Kaye, Esq., BCS | Legal Morsels

A large percentage of Florida residential property owners are subject to restrictive covenants on their property, be it by a declaration of condominium or declaration of covenants.  In addition to these restrictions, Florida Statutes contain additional restrictions that apply to these properties, some of which involve use restrictions.  For condominiums, the provisions of the statutes are of a heightened significance because but for the statutes, condominium ownership of property does not exist.  However, for homeowners’ associations, restrictive covenants have been in use for centuries, well in advance of the existence of such statutes.  As a result, certain statutory provisions may not apply to every homeowners’ association in Florida.

There is a restriction within both the U.S. and Florida Constitutions that limit the ability of the state to enact a law that will impair an existing contract or vested contractual right.  Use restrictions contained in declarations of covenants have been identified by Florida courts as existing contracts between the property owner and the entity that operates the community under the governing documents (the association). There is also case law in Florida that addresses whether a change in the statute applies to the community based upon if a particular phrase is included in the governing documents (commonly referred to as Kaufman language).

If the governing documents include  Kaufman language, any changes made by the legislature in a given year will automatically be incorporated into the governing documents and apply to that community.  Conversely, if there is no Kaufman language, only what is referred to as “procedural” changes made by the legislature will apply to that community.  An example of a procedural change would be a change in a notice requirement for elections.  Statutory changes that are “substantive” would not apply in that instance to that community.  An example of a substantive change would be requiring the association to take on all exterior maintenance of the residential dwellings (presuming the documents do not already provide for that obligation).  Without the Kaufman language in the governing documents, this latter statutory change would not apply to that community, as such change would likely be considered unconstitutional.

During the legislative session in 2021, Section 720.306 of the Florida Statutes was amended to add subsection (h), which provides, in pertinent part, that any amendment to a governing document after July 1, 2021 that prohibits or regulates rental agreements applies only to a parcel owner who acquires title to the parcel after the effective date of the amendment or to a parcel owner who consents to the amendment (with specific exceptions relative to short term rentals and limiting rentals to up to 3 times a year).  However, under the analysis discussed above, rental restrictions and the ability to amend governing documents are generally considered substantive vested rights.  As such, this new statute appears to  impair the existing contractual rights of many property owners in homeowner association communities.

The first step in considering whether this new rental restriction change applies to a particular homeowner association community is to check the governing documents for Kaufman language (this also assumes that the documents were not initially created on or after July 1, 2021).  Typically, Kaufman language is not included in original documents by developers of communities, but  many associations have added it by amendment after the developer was no longer involved.  If the Kaufman language is in the documents, the new statutory rental restriction provisions apply.  If, however, there is no Kaufman language, the new rental restriction statute would not be applicable to the community.  In this instance, the membership could still amend the governing documents to prohibit or regulate rentals within the community, which should be enforceable against all current owners, regardless of whether or not they voted in favor of the amendment.

The issue of whether or not this new statutory change regarding rental restrictions violates the Federal and State Constitutions has not been tested in the Florida or Federal courts as of this writing.  Before considering amending the governing document in a homeowner association community to create rental restrictions, it is recommended to consult with the association attorney as to the limitations that may apply.

Will The Association’s Denial Of An Architectural Request Withstand Challenge? Many Won’t—Find Out Why

Rembaum's Association Roundup | Jeffrey A. Rembaum, Esq., BCS

For many homeowners associations, a top priority is ensuring that the homes in the community are maintained in conformity with the “community-wide standard.” But, what is this subjective standard? How is compliance measured? What is the process to be judged when a request to the association’s architectural review committee (ARC) is made? The ARC is instrumental in ensuring that the community-wide standard is met. However, your association may run into a problem if the ARC denies a request from a homeowner if the association has not adopted specific, objective criteria and guidelines on which the ARC can rely.

[Read the Full Article…]

HOA Board Member Update

Informational recording from Kaye Bender Rembaum’s HOA Board Member Certification Course. Danielle M. Brennan, Esq., BCS leads this webinar.

Note: Viewing this video on-demand does not offer CE-credit, nor satisfy any requirements for licensed CAMS and Board Members.

Elections | Condominium, Cooperative and Homeowners’ Associations

Join attorney Allison L. Hertz for a one-hour webinar addressing election law and procedures for condominiums, cooperatives and homeowners’ associations, including eligibility requirements and terms of directors, best practices for remote meetings, vacancies between elections, and election disputes.

Note: Viewing this video on-demand does not offer CE-credit, nor satisfy any requirements for licensed CAMS and Board Members.

Securing Your Gated Community | Exactly Who is Allowed In?

Rembaum's Association Roundup | Jeffrey A. Rembaum, Esq., BCS

While living in a gated community can add peace of mind for the residents who live behind the gates, there are many important considerations for the association when crafting rules and regulations regarding who may and who may not be permitted to enter the community. In today’s gated communities, there are three entry control options: (i) live personnel to monitor the gate, (ii) a virtual gate guard where the gate guard who allows guests to pass through is off-site and monitoring electronically, or (iii) a simple call box.

Many associations adopt rules which require visitors to the community to present valid identification to ensure that the visitors are authorized by the association or a resident to enter the community. But, what kind of identification can an association require? Are there limits? In the end, the association must…[Read the full article]

Deconstructing the Construction Contract | A Plain English Explanation

Rembaum's Association Roundup | Jeffrey A. Rembaum, Esq., BCS

If your community association has engaged the services of a contractor, engineer, architect, or other construction or design professional to perform a maintenance, repair, replacement, or capital improvement project, you know the process can be overwhelming. No matter the mad rush to execute the contract as soon as possible, when beginning such projects, no matter how big or small, the board needs to ensure the contract adequately protects the association. Even the smallest of projects can have unexpected, disastrous consequences. A few of the more common provisions which every board member should understand follow. [Read the Full Article]

Elections Webinar Q&A Follow-up | November 4, 2021

Attorney Allison L. Hertz, from our Palm Beach Gardens office, returns to answer some of the questions submitted by our audience during the October 28, 2021 webinar, covering Community Association Elections.

Note: This video is for informational purposes only. Watching this video does not constitute legal advice, nor does it provide certifications and credits.

Don’t Want Your Association To Be The Next Rental Community? Then You Better Read This

Rembaum’s Association Roundup | Jeffrey A. Rembaum, Esq., BCS

Many community associations throughout Florida struggle to deal with the increase in overnight and short-term rentals caused by the proliferation of online websites such as VRBO and Airbnb. As such, many communities fear being turned into “rental communities,” especially with so many large corporations buying homes in the South Florida area for the express purpose of renting them. These transient rentals can present nuisance and safety issues and can easily change the composition of your community. The good news, however, is that there are steps your association can take to help protect the community from becoming the next transient rental community by having the necessary language in the declaration of restrictions, as further discussed below.

There are two types of restrictions which work together to help achieve this goal. First, corporate (or business entity) ownership must be fully addressed. Second, specific criteria for approval of purchasers, tenants, and occupants residing in the community for longer than 30 days (or such other time period) must be adopted. Finally, a brief discussion regarding the applicability… [Read the Rest]