I am often asked by association boards if the board can meet in “executive session” to discuss a sensitive topic, such as a personnel matter or dispute with an owner or neighborhood association, without members present.
Amanda K. Barritt concentrates her practice in real estate law and, more specifically, in the areas of residential and commercial community associations, real estate transactions, easements, contract preparation, and real estate development. She represents residential and commercial condominium, homeowners’ and property owners’ associations, non-profit social and recreational clubs, developers, builders and individuals. Amanda also contributes articles on these topics on the firm’s blog, The Legal Scoop on Southwest Florida Real Estate.
While in law school, Amanda worked as a law clerk in Florida’s Division of Land Sales, Condominiums and Mobile Homes and served as administrative editor on the Florida State University Law Review. She also co-founded Survival with the Arts, a law student organization to promote law student involvement with fine arts and literature.
In 2010, Amanda was recognized by Florida Super Lawyers® magazine as a “Rising Star” in the field of real estate law. While only 5% of lawyers in the entire State are named to Florida Super Lawyers®, no more than 2.5% are named to the Rising Stars list. She is AV rated by Martindale Hubbell. This rating signifies that Amanda’s reviewed peers rank her at the highest level of professional excellence for their legal knowledge, communication skills and ethical standards.
With co-author Daumantas Venckus, Law Clerk
Sellers of condominium units often rely on their realtor to make sure the proper disclosures are made in the contract. The Florida Bar and Florida Realtors have adopted a form Condominium Rider which provides not only the disclosures required by the Florida Condominium Act, but also additional disclosures designed to cover some of the issues that aren’t immediately apparent or available to the buyer with respect to the condominium association.
While the information is helpful to the buyer, sellers need to be aware of what the disclosures mean and what their obligations are in order to avoid losing the buyer, or facing a potential misrepresentation claim.
Condominium Association Approval
The association may have the right to approve the buyer. If such right exists in the Condominium Declaration, the approval must be done so within a specified amount of days prior to closing. Both, the buyer and seller must make a diligent effort to obtain such approval. If such approval is not granted within the specified time frame, the contract shall terminate and the buyer will be refunded the deposit.
Right of First Refusal
Last year, I wrote an article warning homeowners’ associations (“HOAs”) that the enforceability of their covenants and restrictions (“Covenants”) may be affected by the Marketable Record Title Act (“MRTA”). In simple terms, MRTA can eliminate the effectiveness of recorded Covenants if they haven’t been preserved within 30 years from when the covenants and restrictions were recorded.
New Law Offers Relief to Some HOAs
In my prior article, I stated that merely amending or restating the covenants does not restart the 30-year clock, but that a statutory process must be followed.
The good news is that in 2018, the Florida legislature amended MRTA by the passage of House Bill 617, to provide that certain amendments will preserve the Covenants if they are recorded before the time the Covenants would have expired. The bad news is that the new law is not effective until October 1, 2018, and, further, the new law will not save any HOAs from having to go through the statutory revitalization process if their Covenants have already expired under the current law prior to October 1, 2018.
In recent years, Condominium and Homeowner’s Associations have become a target for negligent security lawsuits and claims. Typically, a resident or guest of an Association is a victim of a violent crime and the crime victim later sues the Association. While we discussed this previously, we wanted to provide an update after speaking with Henderson Franklin’s premises liability litigation partner, Traci McKee, for additional thoughts on what Associations can do to reduce liability.
Can property owners be liable for the criminal acts of third parties?
Unfortunately, the answer is “yes.” In a negligent security claim, the crime victim claims that the Association failed to implement reasonable security measures which would have prevented the crime. In most instances, the injury to the victim is severe resulting in a large potential exposure to the Association.
Under Florida law, landowners, including Associations, owe residents and guests a duty to take reasonable steps to protect against foreseeable crimes. Whether an Association’s safety measures were reasonable is typically a question for a jury. To determine whether a particular crime was foreseeable usually depends upon multiple factors such as past crimes at or near the property, and an Association’s knowledge of dangerous propensities of an individual.
With the turnover of volunteer homeowner’s association (“HOA”) board members over time, it is not surprising that certain important long-term issues may be overlooked. There is one very important law, however, which board members may not be aware of that can eliminate an HOA’s ability to enforce its restrictions.
I am often contacted by an HOA board at the last minute before their restrictions “expire” under this law and even sometimes after they expire. Below is a breakdown of the two different processes an HOA must follow to preserve the restrictions before they expire or, if the deadline has been missed, to revitalize the restrictions.
What is the law and why?
The Marketable Records Title Act (“MRTA”) is a Florida law designed to eliminate “stale” recorded claims that affect the title to real property, such as old recorded leases for which the beneficiaries have long departed or dissolved. Without MRTA, all of these documents still have to be shown on title commitments and policies even though they may have long since become irrelevant and unused. Unfortunately, there isn’t an exemption to save old (and still active) association covenants unless the affirmative steps are taken to preserve them.
What does it mean to HOA’s?
The Cape Coral Building Department has had a rule on the books requiring owners of residential condominiums in Cape Coral to have a letter from their association before pulling a permit to do work in condominium common areas.
You might be thinking “I pulled a permit for something like that 3 months ago, and I…
Residential Closing Best Practices Requirements by Amanda Barritt
2016 saw the CFPB regulations and Best Practices requirements move into high gear with respect to financed residential…
In addition to providing legal services, Henderson Franklin attorneys are involved in numerous community organizations throughout Southwest Florida. A few weeks ago you heard about Shannon Puopolo and her significant involvement in the Guardian Ad Litem Foundation. Not long after that post, Shannon and Michael Lehnert served on a Lee County Bar Association Committee that organized and ran a charity golf tournament fundraiser for the Guardian Ad Litem Foundation. Last week, we shared Molly Maggiano’s passion for the arts and for the Sidney & Berne Davis Art Center.
Today, meet Michael Lehnert. Michael joined Henderson Franklin in September of 2015. Since he began, Michael has been handling residential transaction and association matters. Outside the office, he serves on the boards of two local organizations, namely Big Brothers Big Sisters of the Suncoast and Southwest Florida Real Estate Council:
In my capacity as a board member for Big Brothers Big Sisters, Michael helped organize and support the Big Brothers Big Sisters Chef’s Cooking For Kids Event. The event was a great success due to the immense support from the local community, including, in particular, fellow board member Ryan Love of Norman Love Confections, and due to the experienced leadership of the Board, especially the current chair, Bryan Blackwell.
Michael is excited to announce that last week he had the good fortune of being matched up with a Little Brother, Dominick. They have only met once thus far, but Michael is excited about the opportunity to be a positive influence in Dominick’s life for years to come.
In light of the recent death of a 2 year old boy by an alligator attack in the Orlando Walt Disney World Resort, associations who operate water bodies within their communities may be wondering what, if anything, they should do to help prevent such tragedies and to protect themselves from liability in the event a wild animal does attack.
The concept is called “ferae naturae” in legal terms, meaning “wild animals.” The question is whether an association owes a duty to its homeowners to guard them against wild animals. In short, the answer is “no.”
The Law on Wildlife
Continuing with our series to introduce you to members of our Condo and HOA Team, today meet Molly Maggiano.
Molly concentrates her practice in real estate matters, more specifically in the areas of community association representation, residential and commercial transactions, real estate development, and other general real estate matters.
Molly has a passion toward photography and the arts, which she expresses through her involvement with the Sidney & Berne Davis Art Center. Here, Molly shares with us a little about why the Sidney & Berne Davis Art Center is such a valuable resource to Fort Myers:
The arts play an important role in enriching the lives of our community. Not only are they a form of enjoyment and entertainment, but they expose us to different cultures and offer educational opportunities that can increase the quality of our lives.
It is easy to take things such as art and music for granted and forget that such programs haven’t always been available, or may not be available to future generations if they aren’t preserved. For this reason, I wanted to take this opportunity to highlight the Sidney & Berne Davis Art Center (“SBDAC”), of which I have the pleasure of serving on the Board of Directors.