On May 20 2009, just after the peak of the national foreclosure crisis, a federal statute was enacted to help protect a residential tenant who was renting a unit subject to foreclosure from being evicted without being afforded a reasonable amount of time to find alternative housing.
The federal law was known as “Protecting Tenants at Foreclosure Act of 2009”. It generally provided that a bona-fide tenant was authorized to remain in a residential unit that was acquired by a new party through foreclosure for the balance of the unexpired term of the lease, unless the unit was acquired by a party that intended to occupy the unit, in which case the tenant was authorized to remain in the unit for ninety days after receiving a notice to vacate.
For purposes of the federal law, a “bona fide tenant” was a tenant who was not the mortgagor or the parent, spouse, or child of the mortgagor and who was under a lease that was the result of an arms-length transaction where rent was not substantially lower than fair market value.
The federal law assured that residential tenants would have a reasonable amount of time to plan and find alternative housing after the unit they were renting was foreclosed and acquired by a new party. However, it also assisted community associations in finding desirable tenants to rent units they owned through the foreclosure of the association’s assessment lien for a fair market value, which then helped the association recoup unpaid assessments and bad debt otherwise attributable to the unit.
The protections of the federal law were intended to “sunset”, which is a term meaning ”to expire”, on December 31, 2012. However, the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act) later extended the sunset date to December 31, 2014. Once the federal law finally expired on January 1, 2015, tenants of residential property in Florida no longer had any special protection from eviction by parties acquiring such units by foreclosure.
Then, approximately six month later, the Florida legislature adopted its own version of the law as part of the Florida Residential Landlord and Tenant Act. Specifically, section 83.561, Florida Statutes, became effective on June 15, 2015, and provides that “if a tenant is occupying a residential premises that is the subject of a foreclosure sale, the purchaser named in the certificate of title is permitted to give a tenant a thirty day notice to vacate and the tenant must comply”. Therefore, as of June 15, 2015, residential tenants had a much shorter time frame of thirty days’ notice to vacate a unit acquired by foreclosure.
Finally, on June 23, 2018, the federal Protecting Tenants at Foreclosure Act became effective again. It no longer contains any sunset or expiration date; so it is here to stay. Since a federal law will supersede a Florida law when it is more stringent, the provisions of the Federal Protecting Tenants at Foreclosure Act giving tenants more time to vacate residential property after it is acquired by a new party through foreclosure will apply to transactions in Florida despite the shorter time frame provided by state statute.
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.
It is well known that termite infestation can bring severe damage to the wood in and around our homes and other structures. However, many people do not realize that certain kinds of termites start their colonies near trees not structures. One of these is the Asian subterranean termite, first found in South Florida in the early 2000’s. The Asian subterranean termites start their colonies in or around trees, reaching full maturity within five years, at which point the colony could hold several million termites. This type of colony not only results in the demise of the infected tree, but may also then expand and damage the surrounding structures and flora. These invasive wreckers have been spreading extensively over South Florida. The good news is that infestation and growth of these termite colonies can be eliminated, if caught early on, by using above ground baits containing chitin synthesis Inhibitors. By taking preventative measures, as opposed to reactive measures, the termite colonies can be prevented from seriously damaging trees and avoid future damage to surrounding structures. Following a routine of tree inspection, termite detection and colony elimination will help prevent loss of tree canopies and structural damage on your properties. by Shane Humble, President, 
Has your condo association considered going smoke free? Smoke free policies are a growing trend as more and more residents are complaining about cigarette smoke drifting into their units. Smoke free policies reduce the risk of smoking-related fires and increase building safety for residents. Many condo associations in Florida are adding a smoke free policy as a new amenity to provide clean air. Other potential benefits of a smoke free policy include: 
Very recently, more and more condominium and homeowner associations find themselves as potential defendants in Federal Fair Housing Act (the “FHA”) discrimination litigation due to the association’s website. It is alleged that the failure to make the website easily accessible to those with visual impairments or who are blind is discriminatory. In short, the FHA prohibits making, printing or publishing, with respect to the sale or rental of a dwelling, anything that indicates any preference, limitation, or discrimination based on a handicap, or the intention to make such preference, limitation, or discrimination. Thus, the FHA covers all written and oral notices or statements by a person engaged in the sale or rental of a dwelling. Therefore, as the argument presented is explained, if the association’s website is providing information regarding the sale or rental of units or lots, and proper precautions are not taken to ensure that the website can be “listened to” rather than “read” by an individual who is visually impaired or blind, then that association could be a prime target for the threat of a federal discrimination lawsuit. Victim’s Awareness, Inc. is a national not-for-profit corporation whose membership consists of persons with disabilities and others who are committed to equal access, equal opportunity and equal rights for protected classes. Employees of this company, along with its constituent members, troll the internet searching for websites offering housing for sale or lease that do not provide a mechanism for those who are visually impaired or blind to have the content of the website automatically read to them. In order to have this functionality, what is technically referred to as a “widget” must be installed by the website host. Typically, organizations such as Victim’s Awareness, Inc. will send a demand letter including a letter of explanation, demand for evidence preservation, and a draft copy of the to-be-filed federal lawsuit and complaint demanding that the association immediately retrofit its website to ensure equal access by the visually impaired and blind. Failure to do so guarantees a lawsuit will be filed in Washington, D.C. against the association. Typically, this type of lawsuit is extremely expensive to defend. If liability results, the damages can easily be in the tens, if not hundreds, of thousands of dollars. Sadly, even immediate compliance may not be sufficient to avoid monetary penalties. Because the demand brings about the desired change, the would-be plaintiff, in this case, Victims Awareness, Inc., argues that they are entitled to their attorneys’ fees and costs for their preparation of the demand letter, preservation of evidence demand, and draft complaint. Therefore, even if an association complies with the demand by making its website accessible to those who are visually impaired, Victims Awareness, Inc.’s asserts that its attorneys’ fees and costs will need to be satisfied. If an association refuses, then, even though the website is now FHA compliant, Victim’s Awareness, Inc. suggests that they can still file the lawsuit to collect its attorney’s fees and costs. Because discrimination lawsuits is one of the few areas where board members can have individual liability it is likely that most associations will fold their hand and agree to the would-be plaintiff’s demands. It will be interesting to see the results should an association decide to fight such demands on the basis that the FHA also provides that reasonable modifications must be granted by an association in response to a handicapped person’s request so long as the modification is paid for by the person making the request. It remains to be seen whether such an argument pierce the demands made by groups such as Victim’s Awareness, Inc.? A community association risks being in harm’s way when it operates a website that promotes sales and leasing activities and is open to the public at large. In this instance the ol’ adage remains true- “an ounce of prevention is worth a pound of cure”. Thus, to find additional information on the “widget” to bring your website into compliance and to learn more about this issue you can visit www.userway.com. In addition, consider discussing this important matter with your association‘s attorney. 
Condos and HOAs are generally exempt from ADA requirements because they are not “public accommodations” like hotels, restaurants or retail stores. However, we have seen a recent trend of legal threats against community associations because their websites were not ADA compliant. Why is this happening? The communities that are being threatened have listings of units that are available for sale or rent on their websites. Because they have this information on their public web pages, they have allegedly created a situation where their website is now relevant for the general public and individuals that are visually impaired may not be able to access and understand the information on the website. If you have a condo or HOA website that includes information about units for sale or rent, or links to sites that have listings – you should remove this information ASAP. 
Transfer fees are those fees an association may charge in connection with the sale or lease of a unit. There are significant differences between allowable transfer fees for homeowners’ associations as compared against condominium associations. When it comes to transfer fees for condominium associations, Florida law is patently clear – in no event may such a fee exceed $100 per applicant. In spite of this clear limitation, some condominium associations charge more than the statutory maximum, and doing so is not without significant consequence. In fact, unit owners of a condominium association recently brought a successful class action lawsuit in Miami-Dade County against their condominium association that charged transfer fees beyond the statutory limit. That association now faces a significant financial impact from the suit. Not only must the association return the money charged over the statutory limit to each member of the class, the settlement stipulated that the association must pay $95,000.00 in attorney fees to the law firm representing the residents. The class period was from 2014 to 2019, and the association may end up paying over $200,000.00 to satisfy all the claims in the class. Yikes! Specifically, section 718.112(2)(i), Florida Statutes, provides that “no charge shall be made by a condominium association in connection with the sale, mortgage, lease, sublease, or other transfer of a unit unless i) the association is required to approve such transfer and ii) a fee for such approval is provided for in the declaration. In no event may such fee exceed $100 per applicant other than husband/wife or parent/dependent child, which are considered one applicant.” The law does allow the association to require a prospective lessee place a security deposit, not to exceed the equivalent of one month’s rent, into an escrow account maintained by the association. It is important to note that the statute requires that the condominium’s declaration provide authority to the association to approve a transfer and to impose the transfer fee. If these powers are not granted in your declaration of condominium, the condominium association may not charge any transfer fee. If the declaration of condominium does provide for a transfer fee, then the association must abide by the statutory maximum. It is not unheard of for more than one condominium association to attempt to circumvent the statutory limitation by changing the name of the fee. Some may call the charges “screening fees” or “move in fees,” but that does not change the fact that the fees are still legally considered transfer fees. Remember, the limit is the limit, regardless of whether the condominium association’s expenses in obtaining credit and criminal history reports exceeds the $100.00 limitation. Any condominium association charging more than the statutory maximum is violating the statute and opens itself up to liability. With the award of attorney fees, there is an incentive for attorneys to bring more cases challenging any transfer fees that violate the statute. Your condominium association could be liable for hundreds of thousands of dollars for charging improper transfer fees. On the other hand, there is good news for homeowners’ associations, these statutory maximums only apply to condominium associations. However, homeowners’ associations are not without some statutory limitation. Section 689.28, Florida Statutes, declares that transfer fee covenants violate public policy by impairing marketability of real property. However, section 689.28(2)(c)7., Florida Statutes, does allow a homeowners’, condominium, cooperative, mobile home, or property owners’ association to charge a fee if the declaration allows such a charge. So, a homeowners’ association may only charge a transfer fee if the authority is granted to the association in the declaration. Just keep in mind, if your declaration specifies a set fee, your association is limited to the fee provided in the declaration. Now is a good time for all board members to review their community’s governing documents and seek advice from the association’s lawyer as to whether any existing transfer fee complies with the statutory requirements. A simple check now can help your association avoid costly litigation in the future. Jeffrey Rembaum, Esq. of 
Speeding within communities is a dangerous concern for most HOAs. This is especially true for large communities such as Parkland Golf & Country Club (PGCC), which consists of long, wide roads that may tempt some drivers to hammer down on the gas pedal. This speeding concern became a critical issue that the PGCC HOA decided to act upon. The Board of Directors felt that something had to be done before someone got hurt. Jointly Addressing the Problem: Mary Banmiller, the property manager at PGCC, led the project on cracking down on speeding within the community. Mary and the PGCC Board of Directors examined the options available to them. Placing speed humps throughout the community was not plausible, as they are illegal in the city of Parkland, while narrowing the street lanes throughout the community is an expensive project to undertake. Another idea was to use speed cameras throughout the community, which was influenced by surrounding cities’ use of speed cameras on their public roads to enforce red light stops. The general idea of using speed cameras would be to send warnings and ultimately fines to those drivers who are caught on camera violating the posted speed limit. Since PGCC is an enclosed community, having private roads would facilitate the implementation of the speed cameras. Additionally, since FPL does not allow cameras on their poles, the community’s ownership of their light poles was a significant advantage at PGCC. Mary and the board continued to research the possibility of installing speed cameras, as well as other options to decrease speeding within the community. Fixing the Problem: PGCC decided to undertake the speed camera and violations project. The solution was to install three live cameras and three dummy cameras throughout the community. The live cameras are monitored daily and use state-of-the-art infrared technology to determine the speed of vehicles in violation and take a photo. The dummy cameras are swapped and rotated with the live cameras every couple of weeks to deter speeding in streets that were not being actively monitored previously. These cameras are installed high on light posts, so to be out of reach, and are calibrated once during installation. With respect to the violations, PGCC has set up a comprehensive citation and fine schedule with offense tiers and their accompanying fines in detail. Residents are responsible for their guest’s speeding violations. Vendors are also responsible for their speeding and PGCC worked with management and counsel to create an enforcement structure that generated compliance. Residents and vendors may either pay the fines or they may dispute the citation and appear at a hearing of the fining committee. At the fining committee, a citation may be vacated if there is reasonable cause. The process of issuing the speeding violations is a collaborative effort. During this process, PGCC utilizes the help of Traffic Logix’s cameras and cloud software, ABDi’s gate access control software, and custom management tools to keep track of previously issued violations and for accounting purposes. The first step in this process is the image capture by the camera of a speeding vehicle on the designated road. The image taken of the vehicle, the vehicles license plate, the time the picture was taken, the speed of the vehicle, and other details are immediately uploaded to the Traffic Logix cloud. On the Traffic Logix cloud portal, PGCC can sort by individual camera locations, speed limits, dates and other filters. Once it is determined, if it is the violators first offense, or if they’re repeat offenders, the violation letter can be exported on the Traffic Logix cloud using pre-made citation templates for each specific offense. SOS Site Manager Thierry Felix states, “As we drive through the community during regular patrol, we have noticed that cars in general have slowed down. The speed cameras are very effective in improving road safety at Parkland Golf and Country Club.” Results: Mary and the PGCC Board of Directors implemented the speeding cameras and violations project earlier this year and have seen favorable results. PGCC introduced the speed cameras to residents by posting signs across the community and beginning a four-week testing period, where only warnings were sent out to those who violated the speed limits. In the first 45 days after implementation, PGCC had 9,300 total speeding violations. “The residents of PGCC have been complaining for years about the speeding in the community. We have tried security patrol with radar, exploring narrowing of the roads, speed humps, etc. The traffic Cameras have reduced our speeding by 92% in the community. The residents are super happy with the results and they notice how much speeding has come down as they drive through the community,” says Mary. Additionally, 100% of the total cost of the cameras has been recovered from the violation collection alone. The relationship between the different software being used is still being tweaked to gain the most cohesiveness, however at this point it is producing favorable results. Thanks to the work of Mary Banmiller and the PGCC Board, the speeding camera implementation has seen great results within Parkland Golf and Country Club. Speeding within communities in Parkland is a major issue. The work that Mary and the board have done at PGCC is setting the standard for speed controls and many surrounding communities are now following their lead. by Diego Hernandez, Marketing Assistant, Campbell Property Management
For some home buyers, financing the purchase of their new home can be a barrier to entry. Many home buyers need the benefit of an FHA backed loan for their lower interest rates. The Federal Housing Authority (FHA), a part of the Department of Housing and Urban Development (HUD), has provided mortgage insurance on loans made by FHA-approved lenders since its inception in 1934. Until a recent FHA rule change, any buyer interested in purchasing a condominium unit backed by an FHA loan faced the additional hurdle requiring that the condominium project itself must be FHA approved. The FHA approval process for condominium projects can be complex and time-consuming. Prior to the recent FHA rule change, if the condominium project was not approved by the FHA, then prospective condominium purchasers could only obtain conventional loans, making it more difficult to secure financing. In fact, according to the FHA, only 6.5 percent of the country’s more than 150,000 condominium projects are approved to participate in the FHA’s mortgage insurance program. However, a new FHA rule that goes into effect on October 15, 2019 will change the approval process for condominium units and allow more buyers to receive approval for an FHA loan. The new rule introduces several changes to the FHA approval process. The most notable is that the FHA will now allow an individual condominium unit owner to be eligible for an FHA backed mortgage even if the condominium project as a whole is not approved. However, the FHA will only approve a limited number of units in any condominium project. For projects with 10 or more units, no more than 10 percent of the individual units can be FHA-insured, and for projects with fewer than 10 units, no more than two individual units can be FHA-insured. Board members, owners, managers, and anyone else can access HUD’s database to find the number of FHA backed loans in a condominium project at https://entp.hud.gov/idapp/html/condo1.cfm. The following are some of the essential requirements for a condominium project to be FHA approved, which have not been changed by the new rule:
The complaint heard often from condominium and HOA board members is in regard to the influx of assistance animals in their “no pet” or pet restricted communities. Few other topics within the body of community association law cause more consternation then the application of the Federal, State and local Fair Housing laws. In fact, one relatively minor misstep from a board member or manager can cost an association tens of thousands of dollars in damages, as well as attorney’s fees and costs. Not only that, but this is one of the very few areas where board members could potentially face individual liability for their actions. Under most circumstances, board members will have protection from liability under the “business judgment rule,” but this is not necessarily the case in the Fair Housing arena. I have read applications for assistance animal requests, believed to be prepared by lawyers with knowledge in this field, which are used as a method to obtain new community association clients by selling the applications for a very low cost, even below several hundred dollars. Unfortunately, these application packages, while seemingly inexpensive, can expose the association to significant monetary penalties. One such application package is a nightmare waiting to happen to an unsuspecting board because it requires the application to be completed in order for the board to review the matter. While Fair Housing laws encourage a uniform policy be implemented, an association’s assistance animal application package cannot be made a prerequisite. It can be suggested that providing a completed application will assist in expediting the review process, but it cannot be mandated to be considered for approval. Also, without good cause, an association cannot demand regularly updated medical information concerning a claimed disability, regardless of the use of an application created by an association demanding otherwise. Recent decisions point out the legal exposure to an association when board members or other agents of the association attempt to curtail the rights of assistance animal owners in an apparent effort to placate the rest of the community. In a recent Fair Housing consent order entered September 28, 2018 by and between an applicant for an assistance animal and Hudson Harbor Condominium Association, Inc., located in New Jersey, the association was ordered to pay $30,000 to the assistance animal applicant for failing to grant a reasonable accommodation to its policy of requiring the animal be carried in a crate or carrier in the common elements and that the owner of the animal only use a service door when accompanied by the animal. In another case, Pekiun v. Tierra Del Mar Condominium Association, Inc., 2015 WL 8029840, the association’s motion for summary judgment was denied where the plaintiff’s estate sued the association due to its failure to allow an assistance animal and argued that the association caused the intentional infliction of emotional distress and violations of both Florida and Federal Fair Housing Acts. In this case, the association demanded an assistance animal be removed from the premises due to another individual’s allergies and required, not only that a specific application be completed by a particular time. After the assistance animal was approved, the association’s management company changed and the new management company required the owner to “recertify” his assistance animal. Later, the owner committed suicide. Had the Association not given the owner such a hard time, would the owner still have committed suicide? We will never know. The damage award could easily exceed six figures given these occurrences and resulting suicide. Remember, when considering an assistance animal request, all that is necessary is that the applicant has a disability recognized by the Fair Housing laws and that the animal helps ameliorate the symptoms or effects of the disability. This information can come to the association from a doctor, psychiatrist, social worker, mental health worker or any other qualified individual. If the association desires a uniform application for assistance animals to assist in trying to streamline request procedures, the board should be looking to work with an attorney/law firm familiar in this area of law, and not simply go for the low cost option. Unless and until the Federal, State, and local laws are modified to address this ever-growing situation, when considering assistance animal applications, the association would be wise to seek legal counsel before taking any action. This is particularly true if the association is going to request additional information, implement limitations or restrictions on the owner or assistance animal within the community, or perhaps deny the request. Jeffrey Rembaum, Esq. of