Legal Scoop on Southwest Florida Real Estate

Legal Scoop on Southwest Florida Real Estate

When Is “AS IS” Not Really “AS IS”?

Posted in Real Estate

Mortgage contractMany home sellers mistakenly consider an “AS IS” sales contract as a release from liability for all faulty or defective conditions on the sale of a home. However, under the landmark case of Johnson v Davis, 480 So. 2d 625 (Fla. 1985) the Florida Supreme Court took a different view.

Florida Supreme Court’s View on “AS IS”

In Johnson, the Florida Supreme Court effectively changed the law in Florida holding that where a seller of a home knows of facts materially affecting the value of the home which are not readily observable and are not known to the buyer, the seller is under a duty to disclose those facts to the buyer.

The effect of Johnson does not make a seller of a home a warrantor of the good condition of the home. Slitor v Elia, 544 So. 2d 255 (Fla. 2d DCA 1989). However, recognizing that in the sale of a home, full disclosure of material facts must be made wherever elementary fair conduct demands it, caveat emptor (or let the buyer beware) is not the rule in Florida residential transactions. Therefore, in the sale of a home, if a seller knows something that materially affects the value of the home which is not readily observable, it must be disclosed. Otherwise, the seller may be subject to various fraud claims or breach of contract claims by the buyer.

But my contract expressly states “AS IS”

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Meet Henderson Franklin’s Condo and HOA Team Members: Shannon Puopolo

Posted in Condominium, HOA

In addition to providing legal services, Henderson Franklin attorneys are involved in numerous community organizations throughout Southwest Florida. Over the next few weeks, we will be letting our blog readers get to know the members of our Condominium and Homeowners’ Association group a little better by sharing some of the exciting organizations and events we have been involved in.

PuopoloToday, meet Shannon Puopolo. Not only does Shannon handle association and real estate litigation matters, including collections and foreclosures, and other commercial litigation matters, she serves on boards of several local organizations, including the Guardian Ad Litem Foundation. Shannon gives the highlights of the Foundation’s signature event of the year for us in her latest blog:

Many Americans enjoy the annual tradition of watching the Kentucky Derby. Some even partake in dressing the part, by putting on their finest hats, bowties, and pastel-colored clothing. In Southwest Florida, the community combines this time-honored tradition with a charitable cause – namely, raising money for at-risk youth in our legal system.

On Saturday, May 7th, the Guardian ad Litem Foundation (“GALF”) held its annual Viva La Derby Party, which raises money to support, recruit, and train volunteers who advocate for abused, neglected and abandoned children in the child welfare and court system.

GALF’s mission is to ensure every abused, neglected, and abandoned child in Southwest Florida has a Guardian ad Litem volunteer (GAL) and every GAL has access to financial assistance and resources available for meeting the child’s health, educational and social needs. GALF also runs the Kids Being Kids Program, which provides children in the dependency system with a sense of normalcy, by providing a warm, cozy bed, a birthday party, emergency/supplemental clothing, dues for sports, arts, or social clubs, academic tutoring, summer camps, and medical needs.

I have been fortunate enough to serve on the GALF Board for the past three years, and am currently serving as the Board’s Vice President. For the past two years, Henderson Franklin has supported the Viva La Derby Party as the “Hat Contest” Sponsor. As part of its sponsorship commitment, Henderson Franklin’s attorneys chose finalists to compete in the contest and awarded prizes for the “Best Overall Hat,” “Most Beautiful Hat” and “Most Creative Hat.” As you can see from the photos, the finalists brought their “A” games and showed up to win!

From left to right: Shannon Puopolo, Esq., Nick Stokke, Kayla Richmond, Esq., John Miller, Esq., Suzanne Boy, Esq., John Agnew, Esq., Julie Harmon, Jane Kelly and Carlos Kelly, Esq.

If you would like more information about GALF, or to learn what you can do to help, please visit

Community Association Executive Committees: Reminders for Successful Summer Meetings

Posted in Condominium, HOA

Photo of Wiggins Pass Beach by Molly Maggiano

As we quickly approach the summer, many homeowners, including board members, will be returning to homes up north for the summer. Boards and association managers should take a few minutes to brush up on the requirements for meetings of executive committees that may be appointed to act on behalf of the Board in the absence of some or all of the directors.

Formation of Executive Committees

Boards have the authority under The Florida Not For Profit Corporation Act, unless otherwise prohibited by the Articles of Incorporation or the Bylaws governing the corporation, to adopt a resolution designating from among its members an executive committee to exercise the authority of the board. With the large number of seasonal owners in many communities throughout Southwest Florida, it is not uncommon for the boards of such communities to appoint an executive committee to assist in the operation and care of the association property during the summer season.

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Once Again, Now is the Time to Extend your Permits in Lee County

Posted in Land Use

Statutory Authority for State of Emergency Extensions in Florida

As explained in our earlier blog posts, Section 252.363, Florida Statutes, provides that certain qualifying permits and authorizations can obtain extensions following a declared State of Emergency for the amount of time the declaration was in effect, plus an additional six months.

In order to obtain an extension under the statute, the applicant must submit a written request to the authorizing agency within 90 days after the State of Emergency has expired.

The State of Emergency for Heavy Rainfall Has Expired

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Association Criminal Background Checks Could Lead to Discrimination Claims Under FHA

Posted in Condominium, HOA

Criminals do not qualify as a protected class under the Federal Fair Housing Act (FHA). However, the Department of Housing and Urban Development (HUD), the federal agency responsible for administering the FHA, recently issued a statement affording criminals certain protections when they apply to purchase or rent a residence.

Because of these protections, sellers and housing providers subject to the FHA, such as condominium and homeowners’ associations, should be careful to ensure their well-intentioned policy of checking applicants’ criminal history records doesn’t result in an FHA violation.

HUD issued the recent statement after analyzing national, state, and local statistics on arrest, conviction, and incarceration rates in the United States. The analysis results demonstrated that African Americans and Hispanics are arrested, incarcerated, and convicted at rates disproportionate to their share of the American population.

Given these disproportionate rates, HUD found that criminal records assessments were having a disproportionately negative impact on African Americans and Hispanics.

Tips On Using Criminal Convictions

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Electronic Voting in Community Association Elections Offers Convenience and Promotes Member Participation

Posted in Condominium, HOA

Thanks to the Florida Legislature, community associations can now make use of technology to increase convenience and decrease costs and time required to conduct member votes. The homeowners’, condominium, and cooperative acts were all amended, effective July 1, 2015, to allow associations to conduct owner votes, including elections, using an internet-based online voting system if certain criteria are met. The Division of Florida Condominiums, Timeshares and Mobile Homes adopted rules to provide further guidance for electronic voting for condominiums and cooperatives, which were effective on March 20, 2016.

Where to Begin

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2016 Florida Legislative Wrap-Up Presented by ULI SW Florida, REIS and FPZA

Posted in Land Use

On April 21, 2016, Southwest Florida’s state legislators presented a “Legislative Wrap-Up” at the Cohen Center of Florida Gulf Coast University. This year’s event was well attended and presented for the first time as a collaborative effort between and among ULI of Southwest Florida, REIS, and the FPZA.

This Year’s Legislative Panel

Attendees had the pleasure of hearing about many of this year’s successful and unsuccessful bills from the following legislative panel:

Highlights from the 2016 Legislative Session

Following a brief introduction by moderator Jenna Buzzacco-Foerster, each panelist was given several minutes to discuss their greatest accomplishments of the 2016 Legislative Session.

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Buyers and Sellers Beware: Association Approval Requirements May Delay Closing

Posted in Condominium, Due Diligence, HOA

sold flickr MarkMoz12Selling or buying a home within an association may not be as simple as buyer offers and seller accepts.

In Florida, condominium and homeowners’ associations may require potential buyers to submit an application to the association before allowing the buyer to close on the property. A buyer’s failure to timely submit an application to a governing association could delay closing.

Here are a few tips for anyone looking to buy or sell a home governed by an association:

  1. Before listing your home, review the governing documents to see if they include provisions subjecting potential buyers to the association’s approval;
  2. If they do, check with the Association manager early on to see if there is a timeframe attached to the approval process, e.g., buyer must submit an application no later than 30 days prior to the transfer of property; and
  3. Apply early to give the association adequate time to process the application.

Following these steps will help minimize the risk of delays in your closing.


Photo credit: MarkMoz12 under Flickr Creative Commons License

Can an Association Collect Assessments Once a Homeowner Files Chapter 13 Bankruptcy?

Posted in Condominium, HOA

11702998186_540598856a_k This question comes up a lot from our association clients, who are often unsure about how to proceed, for fear of violating the automatic stay. Many associations know they should refrain from seeking collection efforts against homeowners for outstanding pre-petition assessments, but what about post-petition assessments? Further, can the association attempt to recoup pre-petition assessments without violating the automatic stay?

Case Study – Montalvo

A recent decision in In re Federico Augusto Montalvo, 546 B.R. 880 (M.D. Fla. 2016) addressed these issues. The owner of two condominium units filed Chapter 13 bankruptcy and specified in his Chapter 13 Plan that he was surrendering his interest in the units, although he held title to units during the pendency of the bankruptcy case.

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Community Association Rental Policies: New Law Provides Leniency for Servicemember Rental Applications

Posted in Condominium, HOA

iStock_000019598645_MediumCommunity associations which have rental restrictions and policies that require association approval of prospective tenants should be cognizant of a new law that will go into effect this summer. Many association policies in this regard afford the association a fairly lengthy period of time, sometimes up to thirty days, to complete review and processing of a rental application. However, effective July 1, 2016, the time period an association has to complete the review process will be statutorily limited as it relates to applications of prospective tenants that are members of the U.S. Armed Forces on active duty or state active duty, the Florida National Guard, or the United States Reserve Forces.

Chapter 2016-242, Laws of Florida, passed on April 15, 2016, provides for the creation of Section 83.683, Florida Statutes (part of the Florida Residential Landlord and Tenant Act), relating to rental applications by a servicemember. Under the new law, associations that have policies requiring prospective tenants to submit an application for approval by the association prior to residing in a rental unit or parcel within the association’s control  must complete processing of a rental application submitted by a prospective tenant who is a servicemember within 7 days after submission. Further, the association must, within that 7-day period, notify the servicemember in writing of an application approval or denial and, if denied, the reason for denial. Absent a timely denial of the rental application, the association must allow the unit or parcel owner to lease the rental unit or parcel to the servicemember and the landlord must lease the rental unit or parcel to the servicemember (presuming all other terms of the application and lease are complied with).

This law will be applicable to any condominium association under Chapter 718, cooperative association as defined in Chapter 719, or homeowners’ association as defined in Chapter 720.