Florida Association News Blog

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In a recent Rembaum’s Association Roundup article regarding Florida’s newest non-native invasion of overnight rentals through Vacation Rentals by Owner (VRBO) and AirBnB, we discussed what an association can do in order to protect its community from becoming the newest unnamed hotel/motel through the adoption of lease restrictions and lease approval requirements. Although these methods remain available to associations, one avenue of enforcement has been fully obliterated from the list of possible ways to rid the community of short-term, overnight and transient rentals as a result of a decision in a recent appellate case. In short, if your community’s governing documents prohibit commercial activity, this prohibition will NOT protect the association from VRBO and AirBnB rentals.

In Florida’s First District Court of Appeal case of Santa Monica Beach Property Owners Association, Incorporated v. Acord, the Acords owned two properties within the Santa Monica Beach community which they were renting on a short-term basis through VBRO. The association’s restrictive covenants provided that the properties can only be used for residential purposes and prohibited use of any property for business purposes. Upon learning of these transient rentals, the association sent letters to the Acords requesting that they stop their “vacation rental business.” The association’s enforcement efforts lead to the litigation.

The association argued that the transient rentals of the properties violated its restrictive covenants because the properties were being offered and advertised for rent on the internet as transient public lodging establishments, the Acords were required to collect and remit state sales tax and local bed tax on the rentals, and the Acords had obtained a license to operate their properties as transient public lodging establishment under the name “Acord Rental.”

The Acords argued that the short-term vacation rentals were residential uses, and not business uses, because the renters were using the properties for residential purposes.

Quite shockingly, the Court agreed with the Acords providing that the critical issue in determining whether short-term vacation rentals are residential uses of the property is whether the renters are using the property for ordinary living purposes (such as sleeping and eating), not the duration of the rental. Because the renters were using the Acords’ properties for residential purposes, the Court held that the use of the Acords’ properties as short-term vacation rentals is not prohibited by the association’s restrictive covenants.

Therefore, while an association may tackle the issue of transient rentals in its community by enforcing provisions of its governing documents, including for example, minimum lease term requirements and lease approval requirements, as discussed in our prior article, the association’s ability to enforce its residential use requirement and/or commercial use prohibition against short-term rentals has been obliterated as a result of this recent decision. To view our prior article please visit www.rembaumsassociationroundup.com.

Aside from the nuisance and safety issues which arise due to transient renters coming in and out of the community, another more sinister issue has arisen regarding the short-term rental of properties through websites. It seems as though scammers are creating fraudulent online listings through these websites for vacant properties. Through the online listing, these scammers rent the property and collect their fee. However, when the renters arrive at the property, no one is there. With the influx of people’s use of these vacation rental websites, both owners and associations alike need to keep an eye on the listings provided on these websites and the comings and goings within their communities to tackle this transient rental issue.

To ensure your association is properly protected against transient rentals, the association’s lawyer should be asked to review the governing documents to ensure the necessary language is included and to make recommendations to better protect the association from the likes of VBRO and AirBnB rentals.

Jeffrey Rembaum, Esq. of Kaye, Bender, Rembaum attorneys at law, legal practice consists of representation of condominium, homeowner, commercial and mobile home park associations, as well as exclusive country club communities and the developers who build them. He is a regular columnist for The Condo News, a biweekly publication and was inducted into the 2012, 2013 & 2014 Florida Super Lawyers. He can be reached at 561-241-4462.

Tags AirBnB, Rembaum Association Roundup, Short-term rentals, VBRO No Comments »

shutterstock_382368697 While much of the 2017 legislation recently passed into law affects only condominium associations, Senate Bill 39 (a.k.a., the “Estoppel Bill”) affects condominium, homeowners’, and cooperative associations.

In regard to the Estoppel Bill, remember that in addition to the statutorily required information which must be provided in the association’s estoppel (the subject of prior articles which can be viewed at www.rembaumsassociationroundup.com), the association must provide the estoppel within 10 business days of receipt of the request, and if not so provided, a fee cannot be charged. The association must designate on its website a person or entity with a street or e–mail address for receipt of the estoppel certificate request. The estoppel certificate may be completed by any board member, authorized agent, or authorized representative of the association, including any authorized agent, authorized representative, or authorized employee of the association’s management company. While the fees for the estoppel, a rush estoppel, and a delinquent owner estoppel are set out in the legislation, the authority to charge a fee for the preparation and delivery of the estoppel certificate must be established by written resolution adopted by the board or provided by a written management, bookkeeping, or maintenance contract and is payable upon preparation of the certificate. On the face of it, it would appear prudent for every association to adopt such a resolution. At a minimum, doing so should be discussed with the association’s lawyer.

House Bill 6027 also applies to condominium, homeowners’, and cooperative associations. The requirement that an association may not waive the financial reporting requirements for more than three consecutive years was removed from the Statutes. In addition, the ability of an association comprised of fewer than 50 units, or lots, regardless of the annual revenues, to only prepare a report of cash receipts and expenditures in lieu of the more strenuous financial statement requirements was deleted.

Senate Bill 1520 addresses condominium terminations. Importantly, if 5% or more of the total voting interests of the condominium reject the plan of termination, then the termination may not proceed. This threshold used to be 10%.

House Bill 1237 pertains to condominium associations only. Criminal penalties are now in effect as to any officer or director or manager who knowingly solicits, offers to accept, or accepts anything of value or service of value or who receives a kickback. Similarly, criminal penalties are now available in the event of a forged ballot envelope or voting certificate provided, for theft or embezzlement of association funds, and for the destruction or the refusal to allow the inspection or copying of official records.

The association may not hire an attorney who represents the management company of the association.

In regard to suspension of use rights due to an owner’s failure to pay any fee, fund, or other monetary obligation to the association for a period of greater than 90 days, the amount of money due and owing must be at least $1,000 or more and proof of the obligation must be provided to the unit owner at least 30 days before the suspension may take effect.

Excluding timeshare condominiums, a board member, manager, or management company may not purchase a unit at a foreclosure sale resulting from the association’s foreclosure of its lien for unpaid assessments or take title by deed in lieu of foreclosure. In addition, the party contracting to provide maintenance or management services to a condominium association managing a residential condominium, post turnover, which is not a timeshare condominium association, or an officer or board member may not purchase a unit at a foreclosure sale resulting from the association’s foreclosure of an association lien for unpaid assessments or take a deed in lieu of foreclosure. If 50% or more of the units in the condominium are owned by a party contracting to provide maintenance or management services to an association managing a residential condominium after turnover, which is not a timeshare condominium association, or by an officer or board member of such party, the contract with the party providing maintenance or management services may be canceled by majority vote of the unit owners other than the contracting party for an officer or board member of such party.

As to which records comprise a part of the “official records” of the Association, “bids for materials, equipment or services” are now specifically included.

Renters now have a right to inspect and copy the association’s bylaws and rules. Oddly, this does not extend to other association records, such as the declaration of condominium and the articles of incorporation.

Insofar as providing unit owners a copy of the most recent financial report, the aggrieved unit owner may file a complaint with the Division of Florida Condominiums, Timeshares, and Mobile Homes (the “Division”). Then, the Division may notify the association of the complaint and provide the association five business days to provide the financial report, and if not, then as a penalty, the association may not waive the financial reporting requirements.

A condominium association and its officers, directors, and employees and agents may NOT use a debit card issued in the name of the association or billed directly to the association for the payment of ANY association expense. Doing so, can lead to criminal charges prosecuted as credit card fraud.

Clarification is provided that condominium association board members may serve two-year terms if permitted by the bylaws or articles of incorporation. In addition, a board member may not serve more than four consecutive two-year terms, unless approved by the affirmative vote of two-thirds of the total voting interests of the association or unless there are not enough eligible candidates to fill the vacancies.

There are even changes to the “recall” provisions. In the past, once served with a recall petition, the board is obligated to hold a board meeting within five days, and if it did not certify the recall, then the association was obligated to petition the Division. While the board meeting must still be held within five days, it is no longer incumbent upon the condominium association to notify the Division if it does not certify the recall. Still in effect is the requirement of the board to hold the board meeting within five days to consider whether to deem the recall successful, or not, and if not, then the recall will be deemed effective.

Except for timeshare condominium associations, the condominium association may not employ or contract with any service provider that is owned or operated by a board member or with any person who has a financial relationship with a board member or officer or a relative within the third degree of consanguinity by blood or marriage of a board member or officer. However, this does not apply to a service provider in which a board member or officer or relative within the third degree of consanguinity by blood or marriage of a board member or officer, owns less than 1% of the equity shares.

In order to better handle the ever-growing number of condominium association arbitration petitions facing the Division, new provisions are in effect for qualified attorneys to serve as arbitrators. The arbitrator must conduct a hearing within 30 days after being assigned. The failure of such an arbitrator to render a decision within 30 days of the final hearing can lead to the arbitrator’s removal as an arbitrator. There are various requirements to become certified to serve as such an arbitrator.

While new requirements are provided for director and officer conflict of interest situations, they do not apply to timeshare condominium associations. A rebuttable presumption of such a conflict exists if:

1. a director or officer or a relative of a director or officer, enters into a contract for goods or services with the association; or

2. a director or officer, or a relative of a director or an officer, an interest in a corporation, limited liability corporation, partnership, limited liability partnership, or other business entity that conducts business with the association of the process to enter into a contract or other transaction with the association.

If a director or officer or a relative of a director or an officer, proposes to engage in an activity that is a conflict of interest, as described above, the proposed activities must be listed on all contracts and transactional documents related to the proposed activity and must be attached to the meeting agenda. If the board votes against the proposed activity, the director or officer, or the relatives of the director or officer, must notify the board in writing of his or her intention not to pursue the proposed activity or to withdraw from office. If the board finds that an officer or director has violated this provision, then such officer or director shall be deemed to be removed from office vacancy is filled according to general law.

A director or officer or a relative of a director or an officer who is a party to, or has an interest in, any activity that is a possible conflict of interest, as described above, may attend a meeting at which the activity is to be considered by the board and is authorized to make a presentation to the board regarding the activity. After the presentation, the person with the possible conflict of interest must leave the meeting during the discussion of and the vote on the activity. In addition, a director or an officer who is a party to, or has an interest in, the activity must recuse themselves from the vote.

A contract entered into between a director or officer, or a relative of a director or an officer, and the association, that has not been properly disclosed as a conflict of interest or potential conflict of interest is voidable and terminates upon the filing of a written notice terminating the contract with the board of directors which contains the consent of at least 20% of the voting interests of the association.

The legislation also clarifies that the term “relative” means a relative within the third of consanguinity by blood or marriage.

A “receiver” may not exercise any voting rights of the unit owner whose unit is placed in receivership for the benefit of the association.

Importantly, by July 1, 2018, a condominium association with 150 or more units, which does not manage timeshare units, must post digital copies of many official records on the association’s website. The website must be an independent website or a web portal wholly owned and operated by the association. A recorded copy of the declaration of condominium, bylaws, articles of incorporation, and rules, as amended from time to time, must be posted on the website. In addition, the management agreement and all other contracts must be posted, most especially those contracts where a conflict of interest or possible conflict of interest is present. Bids for materials, equipment or services must be on the website for at least one year. The annual budget, financial reports, and proof of director certification requirements must also be on the website. Both unit owner meeting notices and agendas along with board meeting notice and agendas must be posted, too. Finally, the association has an obligation to ensure that those records which are not permitted to be accessible to unit owners are not posted on the website or are properly redacted.

For those following this year’s legislative process, House Bill 653 was vetoed by the Governor. As set forth in his letter vetoing the legislation, the reason for the veto had to do with fire safety opt-out provisions that he indicated appeared to be all the more dangerous given the recent overseas high-rise fire.

Tags Condo, HB 1237, HB 60274, HOA, Legal Update, Rembaum Association Roundup, SB 1520 No Comments »

ffff-225x300 If your homeowners’ association has not updated its declaration’s assessment collection provisions, then your association might be giving away its otherwise collectable assessment revenue! The problematic declaration provisions are similar to the following: “The sale or transfer of any Lot pursuant to the foreclosure or deed in lieu of foreclosure shall extinguish the lien of such assessments as to all payments that came due prior to such sale or deed in lieu transfer.” To the dismay of association practitioners everywhere, the appellate courts have continually held that such a declaration provision even controls over Florida Statutes that would otherwise require the purchaser who acquires title as a result of the first mortgagee’s foreclosure (or acquires title by deed in lieu) to pay all back assessments due and owing.

On May 24, 2017, the Third District Court of Appeal of Florida, covering Miami-Dade and Monroe Counties, (“3^rd DCA”) issued another assessment decision harmful to Florida’s homeowners’ associations. The 3^rd DCA, in the case of Beacon Hill Homeowners Association, Inc., et. al., v. Colfin AH-Florida 7, LLC, decided in favor of the limited liability company who was a third party purchaser that acquired title to a lot as a result of a lender foreclosure. The 3^rd DCA determined that the company’s liability for past due assessments for the property it purchased at a mortgage foreclosure sale was strictly based upon the language set out in the homeowners’ associations’ declarations (there were actually two homeowners’ associations involved in this case). Both declarations had provisions regarding subordination of the associations’ assessment lien to a first mortgage and provided that the sale of a lot pursuant to the foreclosure of a first mortgage extinguishes the assessment lien as to all payments to the associations which became due prior to the foreclosure sale. Based upon this language, the third party limited lability company purchaser argued that it did not owe any past due assessments accruing prior to its purchase of the property.

The associations primarily argued that the joint and several assessment liability provision as set out in section 720.3085(2)(b), Florida Statutes, enacted in 2008, was incorporated into the terms of their declarations. Nevertheless, the 3^rd DCA rejected their argument and instead followed the prior decisions of the “4^th DCA” (as defined below) in Pudlit 2 Joint Venture, LLP v. Westwood Gardens Homeowners Association, Inc., 169 So.3d 145 (Fla. 4th DCA 2015), holding that the joint and several liability of section 720.3085(2)(b), Florida Statutes, was NOT incorporated into the terms of the associations’ declarations, but rather, the text of the declaration controlled. Therefore, once again, the third party purchaser was fully excused for any past due assessments liability of the prior owner when it purchased the property at the mortgage foreclosure sale.

The best way to remedy this continual dilemma is amend the harmful text out of the association’s declaration and strictly require the third party purchaser who acquires title as a result of the lenders foreclosure to be fully liable for all past due assessments. Other remedies include incorporating the provisions of section 720.3085(2), Florida Statutes, into the declaration or to include a phrase that the declaration “is subject to Chapter 720, as it is amended from time to time” (a/k/a Kaufman language).

Also on May 24, 2017, the Fourth District Court of Appeal (“4^th DCA”) covering Palm Beach, Broward, St. Lucie, Martin, Indian River, and Okeechobee Counties decided in favor of an owner in the case of Dwork v. Executive Estates of Boynton Beach Homeowners Association, Inc., regarding the association’s attempt to collect fines from the owner. In this case, the owner continually failed to properly maintain his roof, driveway, and fence in good condition, despite the numerous written notices sent to the owner from the association and the association’s attorney. Due to the owner’s continued failure to comply with the association’s requests, the board of directors recommended the violations to the fining committee and provided the owner with 13-days’ notice of the hearing before the fining committee. The fining committee fined the owner $25 per day of the continuing violation for each of the three violations, which eventually totaled the maximum permitted by the association’s governing documents – $7,500. The owner failed to pay the fines, even after demand was sent to the owner from the association’s attorney for payment. The association eventually filed a lien against the owner’s property and filed a complaint against the owner for foreclosure of the lien and for money damages.

At the trial level, the association did NOT prevail on the foreclosure because it failed to provide the owner with the 14-day notice of a hearing before the fining committee as required by section 720.305(2), Florida Statutes, but did prevail on its claim for money damages. On the owner’s appeal of the award for money damages, the association argued that substantial compliance with the 14-day notice of a hearing before the fining committee as set out in section 720.305(2), Florida Statutes, was sufficient because the owner was not in any way harmed by the loss of a single day of notice.

While the 4^th DCA agreed that equity would side with the association given the owner’s continued failure to comply with the association’s governing documents and numerous requests, the 14-day notice requirement as set out in section 720.305(2), Florida Statutes, MUST BE STRICLY COMPLIED WITH because there are no exceptions provided in the statute which would permit the trial court to consider substantial compliance with the notice requirement or the lack of prejudice on the owner.

Often times, board members ask, “if the owner in violation does not elect to attend the fining committee hearing to take place with not less than 14 days’ notice, must the hearing be held?” In the event of the violating owner’s legal challenge, if the association wants to ensure success on appeal, then you bet the hearing should actually take place without regard to whether the violating owner elects to attend or not.

Tags Fining Notice, Rembaum Association Roundup, Third Party Purchaser 1 Comment

LogoV12 If you’re looking for quick, simple ways to lower your electric bill, try our top ten energy-saving tips.

Savings with little to no cost or effort:

Set your air conditioner to 78° F in the summer – and save 5 percent on monthly cooling costs for each degree you turn it up.
- Try 82° F or warmer when you’re away, and turn your thermostat fan to “auto.”
Set your heat to 68°F in the winter – and save 5 percent on monthly heating costs for each degree you turn it down.
- Try 65°F or cooler when you’re sleeping or away, and turn your thermostat fan to “auto.”
Turn off ceiling, bathroom and kitchen exhaust fans when you leave the room or after use.
- Turn off your ceiling fan when you leave the room to save up to $85 annually per fan.
- Set your fan to turn counter-clockwise in the summer – which blows air downward – and clockwise on lower speeds in the winter.
Seal your home for savings – control airflow and leaks.
- Close windows and exterior doors tightly when your A/C or heater is running.
- Caulk around windows, weather strip around doors if you feel a draft, and add door sweeps to the bottom of exterior doors.
- Keep all A/C vents open.
Reduce your pool pump’s run time by two hours or more a day to save up to $100 annually.
- Limit your pool pump use to six hours or less per day in the summer and four hours or less per day in the winter.

Save more with minor upgrades:

Consider purchasing and installing a smart thermostat.
- Average savings could add up to 3 percent of your total energy costs.
Save $80 per year when you replace old, high-flow showerheads with water-efficient showerheads.
- This is the annual savings when two people per household shower using water-efficient showerheads.
Choose ENERGY STAR® -qualified appliances, electronics and lighting to save.
- For example, ENERGY STAR-qualified clothes washers and refrigerators are about 20 percent more efficient than conventional models.
- Compact fluorescent lamps (CFLs) and light-emitting diodes (LEDs) can save you 75-80 percent on lighting costs – with the same amount of light.
- Each CFL can save you $50 in energy costs over the life of the bulb.
Control your indoor and outdoor lighting for savings.
- Add motion detectors on outdoor lighting.
- Try dimmer switches inside to match the lighting level to your need.
Consider installing a variable speed pool pump to save about $300 a year.

This blog brought to you by FPL

Tags Energy-saving, FPL, Green No Comments »

General-Maintenance-and-Home-Repair-Services-Sand-Key-Florida For example, let’s examine the replacement of the unit’s windows. Pursuant to the maintenance obligations in the declaration of condominium, the unit owner is responsible to maintain, repair, and replace all parts of the unit and the fixtures and equipment of the unit, including windows. However, the declaration of condominium also prohibits the unit owner from changing the exterior of the condominium building in any way whatsoever. So, what is this unit owner to do when it comes time to replace the unit’s windows? How can the owner change the window, which requires bringing it up to current building code requirements, where it would result in a change to the exterior of the building?

The Department of Business and Professional Regulation, Division of Florida Condominiums, Timeshares, and Mobile Homes (the “Division”) has addressed this particular scenario, and other similar scenarios, in multiple arbitration cases. While the arbitration decisions promulgated by Division are not binding precedent per se (meaning that other arbitrators or courts do not have to decide similarly when presiding over subsequent cases with similar issues or facts), such arbitration decisions are persuasive and relied upon for guidance.

In Ellis v. Phoenix Towers Condominium Association, Inc., Arb. Case No. 00-1236, Summary Final Order (October 27, 2000), a group of unit owners, which included Ellis, sought to have the association, Phoenix Towers Condominium Association, Inc., replace its windows that were damaged as a result of concrete restoration performed by the association. The association’s declaration of condominium did not provide whether the windows were conclusively part of the unit and therefore the responsibility of the unit owner to maintain, repair, and replace. The association’s declaration of condominium did provide, however, that the unit owner is responsible for “[t]o maintain in good condition and repair his unit… and to maintain and repair the fixtures and equipment therein, which includes but is not limited to the following, where applicable:… windows…” However, the association’s declaration of condominium also provided that the unit owner cannot “…make alterations, decorations, repair, replacement or change of the common elements, or to any outside or exterior portion of the building(s).” The arbitrator in this case determined that the provision prohibiting unit owners from replacing or changing the exterior of the building and the provision regarding the unit owner’s responsibility to replace a window to the unit were in direct conflict with one another. Therefore, the arbitrator decided, “[a]n owner cannot be held responsible for replacing a window to his unit when that owner is precluded from replacing or changing any outside or exterior portion of the building [without regard to] whether or not it is a part of the common elements or his unit.”

While the maintenance, repair, and replacement of the exterior of the condominium buildings were found to be the responsibility of the association in the above case, even where such obligation was expressly that of the unit owner, there are instances where portions of the exterior of the condominium building are the responsibility of the unit owner, namely, where the unit owner has altered the common elements or limited common elements (such as the balcony), which are typically the obligation of the condominium association to maintain, repair, and replace. The Division has addressed this particular scenario in multiple arbitration cases, as well, and has found that the unit owner is responsible to maintain, repair, and replace those components that the unit owner altered – that is, unless the governing documents say otherwise or there is an written agreement for the association to take up such responsibility.

In Continental Towers, Inc. v. Nassif, Arb. Case No. 99-0866, Summary Final Order (November 24, 1999), the condominium association, Continental Towers, Inc., needed to conduct concrete restoration, waterproofing, and other repairs to the unit owners’ balconies. However, Nassif refused to allow the association access to his unit’s balcony to remove its tile flooring in order to effectuate those repairs. In relevant part, Nassif argued that that the association “accepted the tiles as a modification of the common elements or limited common elements and therefore assumed responsibility for maintenance of it” and demanded that the association replace the balcony’s tile. The arbitrator in this case provided and concluded, in pertinent part, that:

“The unit owner is responsible for the removal and replacement of unit owner installed additions to the common elements or limited common elements that are necessitated by the association’s maintenance efforts unless there is a specific agreement by the association, or a provision of the documents, providing that the association will be responsible for the removal and replacement of such improvements. [citation omitted] This is true even where the association may have approved or acquiesced to the addition. As noted by the arbitrator in Carriage House, in the absence of an agreement between the parties or a controlling provision of the documents, ‘it cannot be said from the mere fact of association permission that the association has assumed the perpetual obligation to remove and replace the personal property when necessary to repair and replace the common elements.’… Since… the tile was not part of the original construction, the unit owners are responsible for its removal and replacement.”

Therefore, Nassif was required to remove the balcony tiles so that the association could conduct its repairs and was then responsible to replace the tiles once the repairs were completed.

Again, the arbitration decisions of the Division are specific to the parties and facts presented and are not binding precedent. Actually, these type of issues are one of the most confusing and convoluted parts of the entire body of condominium association law. So, if your association has questions regarding the maintenance and repair obligations and interpretation of your condominium association’s governing documents, you should contact a competent community association attorney for legal guidance.

Tags Florida condominium maintenance, Rembaum Association Roundup No Comments »

Home Pool Maintenance With the Florida weather pool maintenance is on our minds every season. Use these tips to help keep your home’s pool in tip top shape.

Check the water level – Due to the summer rains, it is important to make sure that the water is at a safe water level. Make sure to drain the pool when necessary.
Remove debris – A quick way to keep your pool clean is by using a net to clean up debris, twigs and other things that might have fallen on your pool’s surface. It is also important to clean the strainer baskets once a week.
Make sure to have the correct chemical levels – Having correct chemical levels helps decrease the chances of harmful disease and the amount of maintenance necessary. Be sure to test the water at least once a week for chlorine, calcium, P.H., and alkalinity.
Vacuum the pool – To keep the water clear, vacuum your pool every week. This also decreases the amount of chemicals that you need to add.
Shock your pool – Shocking is done by adding a large amount of chlorine to the pool. Increasing the chlorine levels will kill bacteria and odor. It is recommended to shock your pool every one to two weeks depending on how often the pool is used. If you have been making sure the chemical levels are good, shocking should not be needed as often.

by Ashley Dietz Gray, Marketing Director, Campbell Property Management

Tags Florida home swimming pool, Home pool maintenance 1 Comment

1401467101000-hurricane-27 With summer ahead, it’s time to prepare for the heat, storms and humidity that occur in south Florida. It is time to prepare for the hurricane season. It is important that along with your personal and home safety, you also make sure to prepare your landscaping.

Trim your trees – In order to prevent damage, it is important to trim dead or damaged branches from trees, especially of those close to homes or powerlines.
Use mulch instead of rocks – When it comes to material to control weeds, it is advised to use mulch as opposed to rocks or pebbles. Not only will mulch give nutrients to your soil but it is much less dangerous in high winds during hurricanes.
Bring in anything that might be a wind hazard – Things like potted plants and decorations could be potentially dangerous if a storm occurs, make sure to move them inside if an impending hurricane is on its way.
Stake young trees – It’s good to stake new trees and plants in order for them to stay put during storms. Make sure there is not too much tension or they are likely to snap.
Decorative plants – Summer is Florida’s rainy season, which means it is time to take advantage of not having to water as much. Summer is the perfect time to plant ornamental plants. Such plants include periwinkle, portulaca, and caladium “elephant ear”.
Plant herbs that thrive in heat – It’s a good idea to begin planting herbs such as basil, rosemary and cilantro now in order for them to grow in the summer. These herbs also do a great job repelling mosquitos.
Prune your shrubs – In order to help your flowers bloom more, lightly prune any flowering shrubs you might have such as hibiscus and hydrangea.

Use these tip to prepare your home for a beautiful summer in sunny south Florida. Also remember to stay safe outdoors during this hurricane season.

by Keith Carracher, President, Complete Property Maintenance, Inc.

Tags Hurricane Season, Landscaping, Summer No Comments »

In the past, local telephone companies provided telephone services and local cable companies provided cable television services. That was it. For an association, selecting a service provider was relatively easy since quality choices were few. But in recent years, this scenario has changed dramatically for the benefit of community associations. Regulatory changes, Florida state-wide video franchising, new technologies and increased competition from cable, satellite and telephone companies have created new opportunities and confusion for community associations. Plus, with new Internet technologies, communities are beginning to now upgrade to High Speed Internet delivering speeds up to 1Gig via GPON over Fiber from the phone companies and DOCIS 3.1 from the cable companies over existing Coax wiring.

Do we need fiber in our communities or will the existing coax wiring work just as well, in light of new technologies? There are many moving parts, and although time consuming, successfully navigating and sorting through the many options now available is “key” to securing the best Television, Internet and Phone services and pricing for an association community.

Let’s take a look for a moment:

Cable companies offer:

Cable Television · High-Speed Internet · Phone Services · Security Services

Phone companies offer:

Television Services · High-Speed Internet · Phone Services · Security Services

Satellite television and private cable operators offer:

Satellite Television · High-Speed Internet · Phone Services

Condominium and homeowner associations have more options and choices than ever.

Bulk Cable, Satellite, Internet and Phone Agreements:

The most common type of association existing “Bulk Agreement” today is for cable television video services, but Bulk Agreements increasingly now include both Video and Internet service. Who can live without Internet access, and if the vast majority of the residents are already purchasing Internet service, why not include it in the bulk at a substantial discount? A Bulk Agreement is an agreement which provides for the delivery and billing of services, typically for 100% of the units within the association property. It’s basically a “volume discount” in exchange for a multi-year agreement with pre-established service rates and annual rate increases. Although access rights typically remain non-exclusive, non-bulk “Marketing Agreements” on the other hand, generally compensate the association for permitting a service provider to exclusively market their product on the association property.

With multiple providers, bulk and non-bulk options, plus existing contractual rights and obligations, how does an association solicit and select the best options for their community?

It’s sometimes very complicated, but hard work and the assistance of experts will likely garner rewards in the form of improved services and more competitive pricing options for the association. After all, for most associations, a bulk Cable/Internet service bill represents one of the largest financial expenditures for the association community. With this in mind, here are some basic steps an association may want to consider following in order to help make the best decisions for their community:

Start Early:

The earlier an association begins reviewing their rights, obligations and options, the better. A good time to start the process is about +/- 24 months before the current agreement expires. An early start helps to ensure that your association won’t be rushed into making a service and/or agreement decision.

Solicit Multiple Proposals:

Soliciting multiple proposals tends to give associations more negotiating power, which lends itself to providing for more choice, better pricing and service options. Plus, it also determines which options and providers can provide “viable” services and proposal options.

Get Expert Advice and Assistance:

Telecom providers are the experts in their field, and they represent their own interests. Therefore, associations should consider obtaining assistance from professional experts to help “level the playing field” for the benefit of the association. The association’s legal counsel helps to ensure that proposed and final agreements meet the legal needs of the association. On the other hand, professional industry consultants, such as Broadband Agreements Specialists, Inc., are well equipped to assist your association with the project management, proposal solicitation, analysis, board education and service implementation processes.

Your association now has many potential options! Regulatory changes by the FCC, Florida state-wide video franchising, plus new technologies and increased competition from cable, satellite and telephone companies have created new opportunities for associations. Successfully seeking, evaluating and navigating these many options will be your reward, which has the potential to bring financial and service benefits to your association for many years to come!

Jay M. Abbazia, CAM & Florida CAM CEU Provider

Broadband Agreement Specialists, Inc.^®

The article is intended for informational purposes only and should not in any way be relied upon as legal advice. Information in this article may not reflect recent developments or regulatory changes, and may contain errors or omissions. Broadband Agreement Specialists, Inc is not a law firm and does not provide legal advice. It is important and recommended that associations review all agreements and legal documents with qualified legal counsel for an accurate and legally reliable evaluation of rights and obligations. If an association has a legal question, it is recommended that they consult with qualified legal counsel. Broadband Agreement Specialists, Inc. © 2017

For additional information, please visit www.broadbandagr.com or give us a call at 954-889-1967 for a free no-obligation consultation.

Tags Broadband Agreement Specialists, Cable, Internet, Phone services 1 Comment

lawful-_-short-term-rental With little doubt, purchasing a home is one of the most significant investments you can make. In order to help protect that investment, many purchasers choose to buy homes within community associations that include homeowners’, cooperative and condominium associations. Behavior within community associations is governed by a declaration of condominium or declaration of restrictions, along with the bylaws, articles of incorporation and, importantly, and more often than not, the rules and regulations generated by the board of directors. Those of us living within community associations, for the most part, did not sign up to live in a community with transient overnight housing. Yet, if left to the vices of VRBO and AirBnB that is exactly what can happen in your community. Do you know what to look for? Do you know how to prevent this from occurring? What if it is occurring in your neighborhood? What can your community association do about it?

For a variety of reasons, none which are the subject of today’s column, local governments may have difficulty in promulgating local ordinances prohibiting overnight housing offered by VRBO and AirBnB. Therefore, it is left up to your community association’s board of directors to ensure proper measures are in place to prevent homes in your community from becoming the newest unnamed hotel/motel.

At the end of the day, renting property for one night, or six months, should be subject to the covenants and conditions set out in the association’s declaration. In terms of more quickly regulating overnight transient housing, homeowners’ associations have many advantages over that of the condominium association in that there are many circumstances in which the homeowners’ association can adopt rules and regulations prohibiting the transient activity. That said, covenants set out in a declaration which have been adopted by the members have a much stronger presumption of validity and enforceability as compared against rules and regulations adopted by a board of directors. In fact, the condominium association has no choice but to include such prohibitions against transient housing in its declaration of condominium.

More specifically, section 718.110(13) of the Florida Statutes, governing condominium associations, provides, in relevant part, that:

“An amendment prohibiting unit owners from renting their units or altering the duration of the rental term or specifying or limiting the number of times unit owners are entitled to rent their units during a specified period applies only to unit owners who consent to the amendment and unit owners who acquire title to their units after the effective date of that amendment.”

Therefore, if your condominium association does not have covenants already in place to protect against use of any of the condominium units as overnight housing for transient rental purposes, then a vote of the members will be necessary in order to adopt the necessary restrictive covenant(s) to insert into the association’s declaration of condominium to protect against such activity. In the long run, because provisions set out in the declaration of condominium have a greater presumption of validity, the condominium association stands a good chance of prevailing in the event a unit owner challenges the lease covenant. In fact, provisions of a declaration will not be invalidated absent a showing that they are wholly arbitrary in their application, are in violation of public policy, or that they abrogate some fundamental constitutional right.

Nevertheless, as to a homeowners’ association that does not have the necessary covenants set out in the homeowners’ association declaration of covenants to protect against transient housing, rather than having to take a vote of the members to amend its declaration, the board of directors, upon a 14 day board of directors meeting notice mailed to all of the members and posted in a conspicuous place in the community, is able to adopt rules and regulations governing the use of any home subjected to the declaration for transient housing. But, because the rules and regulations are adopted by the board and not adopted by the members of the entire community, then, upon a member’s legal challenge, the outcome is not as clear. Upon such a challenge, the court will analyze whether the board acted within its scope of authority, whether the board exhibited arbitrary or capricious decision-making, and whether the new rule contravenes either an express provision of the declaration or a right reasonably inferred therefrom. Therefore, at the first available opportunity, the membership of the homeowners’ association should be provided the opportunity to approve an amendment to the association’s declaration so that the leasing restrictions are set out in the associations’ declaration of restrictions.

When the association is considering adopting either a declaration amendment or new rule and regulation governing a prohibition against transient housing, the association should also consider at that time updating its entire owner/rental approval process to include prohibitions against purchasers and renters who have committed crimes of moral turpitude, have a history of significant financial irresponsibility, who lie on their sale/lease application, or who do not meet the other requirements such as length of tenancy (e.g., no rentals for less than six months and only one lease per year). These types of issues, and more, should be discussed with the association’s lawyer.

Importantly, the time has come for every community association to regularly monitor VRBO and AirBnB listings to see if homes in your community are being advertised for overnight rental purposes. If so, this should be brought to the attention of the association’s board of directors and manager.

Tags AirBnB, Overnight Rentals, Rembaum Association Roundup, VRBO 3 Comments

Florida-legislature-1 Recently, the Florida legislature has passed three bills set to become law on July 1, 2017, unless vetoed by Florida’s Governor Scott: Senate Bill 398, pertaining to estoppels that is applicable to condominium, homeowners’, and cooperative associations; House Bill 1237, applicable to condominium associations only which provides for numerous new requirements including criminal penalties and onerous and costly website requirements for those condominiums with 150 or more units and so much more; and House Bill 653, which brings more parity to laws governing different community associations, addresses fire sprinkler retrofit, perfects transferring developer rights absent obligations of failed condominium projects, and addresses the rights of board members to communication via email in a way you are sure to like. The far reaching scope of these three bills cannot be explained fully in this short article. Rather, this information is intended as a summary only. Future articles will provide more specific details.

Senate Bill 398 provides for an overhaul of the estoppel issuance process. It provides community associations a mere 10 days to issue an estoppel or forfeit payment for providing it later. Estoppel fees are strictly limited to the statutory limits. The massive amount of information that must be contained in the estoppel is unimaginable. Associations will need to work with their legal counsel to create a template for this massive amount of information that will need to be in the estoppel. This piece of legislation was clearly enacted to benefit realtors and purchasers, only.

House Bill 1237 pertaining to condominium associations only, is, in part, the result of a few bad board members in the Miami-Dade County area for which the entire rest of the state will suffer. Parts of this Bill, by way of analogy, is akin to going to the doctor for removal of a small wart on your finger and the doctor cuts off your entire arm. For instance, there are new criminal penalties for taking kickbacks, forging voting certificates or ballots, and embezzling association funds.

A condominium association, its officers, directors, employees, and agents may not use a debit card issued in the name of the association or building directly to the association for payment of ANY association expense. Doing so can be prosecuted as credit card fraud. These new criminal penalties should not be an impediment to serving on the board absent an individual with malicious intent.

Board members, managers, and management companies may not purchase condominium units at a foreclosure sale resulting from the association’s foreclosure of its lien for unpaid assessments or by taking title by deed in lieu of foreclosure. In addition to the existing requirement that bids for work to be performed be part of the association’s official records, bids for materials, equipment, or services are now required to be part of the association’s official records.

Effective July 1, 2018, a condominium association with 150 or more units must have a secure website for which each owner must be provided a login and password. The website must contain documents including the rules and regulations, the management agreement, all contracts to which the association is a party, summaries of all bids for materials equipment and services, the annual budget, the proposed annual budget, financial reports, proof of board of member certification, and notice of any unit owner meeting and the agenda no later than 14 days prior to the meeting and such notice must be posted in plain view on the front page of the website or a separate sub page of the website labeled notices which is conspicuously visible and linked from the front page. The association must also post on its website any document to be considered and voted on by the owners during the meeting or any document listed on the agenda at least seven days prior to the meeting at which the documents or information within the document will be considered. Also, notices of board meetings, agendas, and any other document required for the board meeting must be posted no later than the date of the regular meeting notice requirements, meaning either 48 hours for 14 days depending on the requirements of the meeting notice. Associations now have an affirmative duty to ensure that no protected information or information restricted from being accessible to unit owners is included in the documents that are required to be posted on the website, and if so, then the association has the duty to ensure such information is fully redacted.

Condominium associations that operate fewer than 50 units can no longer opt out of preparing a report of cash receipts and expenditures simply because they have 50 or fewer units. Rather, they will be minimally required to comply with the financial reporting requirements based upon the total revenues of the association.

Notably, a board member may not served for more than four consecutive two-year terms unless approved by an affirmative vote of two-thirds of the total voting interests of the association, unless there are not enough eligible candidates to fill the vacancies. While not addressed in the legislation, it is oddly apparent that any directors serving only one year terms can serve an unlimited number of such terms. Additionally, the recall provisions have been completely revised which is already causing confusion.

Condominium associations cannot employ or contract with any service provider that is owned or operated by a board member or with any person who has a financial relationship with a board member or officer or a relative within the third degree of consanguinity by blood or marriage of a board member or officer.

Directors and officers of a condominium board and the relatives of such directors and officers must disclose to the board any activity that may be reasonably construed to be a conflict of interest and there are a host of occurrences which gave rise to the need to make such a disclosures that are set out in the legislation.

Provisions are made for lawyers who are board certified in the area of community association law to be contracted by the Division of Florida Condominiums, Timeshares, and Mobile Homes (the ‘Division”) to be arbitrators. This certification was recently approved by the Florida Supreme Court, and the process to become a board certified community association lawyer will begin this summer.

Finally, condominium associations must provide an annual report to the Division containing the names of all of the financial institutions with which the association maintains its financial accounts.

House Bill 653, in part, echoes a few of the provisions in House Bill 1237. It continues to make Chapter 719 of the Florida Statutes, otherwise known as the “Cooperative Act,” more synonymous with Chapter 718 of the Florida Statutes, otherwise known as the “Condominium Act.” Many readers will be happy to learn that board members of both homeowners’ and cooperative associations will be able to lawfully communicate via email, but not vote, as such is already provided for condominium association board members. Needed clarifications were provided to the fire sprinkler and engineered life safety systems requirements and retrofitting of condominiums and cooperatives for those buildings above the 75 foot threshold. For those that are less than 75 feet, it is made clear that they are exempt. The laws governing the transfer of developer rights saw a significant change. The “bulk buyer” laws, that were initially enacted to help rescue failed condominium construction projects by transferring developer rights but not prior developer obligations, were originally intended to “sunset.” The automatic sunset provision of these “bulk buyer” laws were deleted, meaning that failed condominium projects may see a brighter future forever more. Chapter 720 of the Florida Statutes, otherwise known as the “Homeowners’ Association Act,” was clarified to provide that a delinquent member cannot escape their assessment obligation by including a restrictive endorsement on their check, such as “paid in full”.

As to what happens next, Governor Scott can sign these Bills into law, do nothing in which case the Bills become law on their effective date of July 1, 2017, or veto the Bills. Stay tuned for future articles and our upcoming legal update class schedule during which these Bills and others being considered by the Florida legislature will be discussed if and when they become law.

Tags 2017 Legislative Session, Florida Legislatue, HB 1237, HB 653, SB 398 6 Comments

Rembaum’s Association Roundup: Vbro & Airbnb: What You Need To Know – The Business Of Short-Term Rentals Is No Business At All

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