Photo of Amanda Barritt

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.

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.

Simplified Procedures

Continue Reading It’s Now Easier to Preserve HOA Restrictions… for Some

pexels-photo-96612In 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.

Continue Reading Negligent Security Claims: Reducing Liability for Associations

clock-2029613_1280 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?

Continue Reading HOA’s: Your Restrictions Have an Expiration Date

pexels-photo-388241The 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 didn’t have a letter. Did I miss something?” To answer your question, nope, you’re fine.

Although the rule is old, the Cape Coral Building Official recently announced that the Cape Coral Building Department will begin strictly enforcing this rule. This means Associations should expect to receive requests from unit owners (which they should be doing already), and unit owners need to make sure they have secured the approval of the Association before pulling permits for improvements that may be outside, or appear to be outside, of the unit.

Special thanks to Bill Johnson, Executive Director and CEO of the Cape Coral Construction Industry Association for the heads up on the Cape Coral Building Departments new stance on enforcement.

imac-965325_1280As 2016 closes, we reached out to our team and asked them to share some of the most notable issues in real estate and land use & environmental law:

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 closings. Lenders, attorneys, and title companies have invested a lot of time and money coming into compliance. However, the results of the national election, along with the ruling in the case, PHH Corporation v. CFPB, are causing these players to question whether any, or all, of the CFPB lending regulations will be done away with. For now, Melissa Murphy, Senior Vice President and General Counsel of the Attorney’s Title Fund, suggests slowing down on making significant investments in Best Practices, while continuing to make sure to comply carefully with RESPA, Section 8(c) requirements as to affiliated business arrangements until we see what happens in 2017.

Condo & HOA: Fire Sprinkler Retrofitting by Molly Maggiano

As the year winds down to an end, the opportunity for condominium associations to opt-out of fire sprinkler retrofitting is also coming to a close. The subject of fire sprinkler retrofitting proved to be a hot topic during the course of the year, due in part to communications put out by the Florida Division of Condominiums regarding the applicability of the obligation to retrofit, which left many associations who thought they were exempt confused as to whether they were subject to retrofitting, whether they should conduct an opt-out vote, and the implications of such a vote. This resulted in an abundance of frantic calls to association attorneys who were also dismayed and left to wonder whether the Division would clarify its statement. Thankfully, the Division did correct its communications, but the ordeal emphasized the importance and benefits of having a qualified association attorney on hand in crucial situations such as this.

2016 Significant Foreclosure Decisions by Shannon Puopolo

Foreclosure filings continued to decline in 2016. Notwithstanding, some significant foreclosure decisions came out this year. Below is my “Top 3” List:

  • The Florida Supreme Court affirmed the decision of the Fifth District Court of Appeal in Bartram v. U.S. Bank, N.A., holding that where an initial foreclosure lawsuit is dismissed by the court, such dismissal does not trigger the application of the 5-year statute of limitations, which would otherwise preclude a lender from filing a second action. Rather, the court held the lender is only prevented from suing on installment payments that are more than 5 years old.
  • The Eleventh Circuit Court of Appeals held in Failla v. Citibank, N.A. that where debtors file a statement of intent to surrender their residence in Chapter 7 bankruptcy, they must also waive any defenses or counterclaims raised in a pending state court foreclosure action.
  • The Fourth District Court of Appeal held in Ober v. Town of Lauderdale-by-the-Sea that the lis pendens statute does not discharge liens that are recorded and based on conduct which occurs after the date of the final judgment of foreclosure, even if such liens attach to the real property prior to the date of the foreclosure sale.

Land Use Law by Austin Turner

It was an exciting year for land use and environmental law at both a state and local level. On January 21st, CS/CS/SB 552 was enacted to comprehensively address issues such as Everglades restoration. In response to threats like the Lake Okeechobee algae blooms and the Zika virus, the Governor declared several States of Emergency which led to permit extensions. Recently, a supermajority of Florida voters approved one of the two renewable energy measures establishing a constitutional ad valorem tax exemption for solar power. Locally, Lee County residents approved a non-binding referendum for Lee County’s land acquisition and stewardship program, “Conservation 20/20.”

On behalf of the Real Estate and Land Use team at Henderson Franklin, we wish you and yours a very Happy Holiday season and New Year. Please enjoy our 2016 e-card benefitting the Golisano Children’s Hospital of Southwest Florida:

 

 

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:

Michael Lehnert and Leah Heinrich

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.

Continue Reading Meet Henderson Franklin’s Condo and HOA Team Members: Michael Lehnert

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

Continue Reading Disney Alligator Death is a Wake Up Call to Florida Associations

Continuing with our series to introduce you to members of our Condo and HOA Team, today meet Molly Maggiano.

Fort Myers Condo and HOA Attorney Molly MaggianoMolly 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.

Continue Reading Meet Henderson Franklin’s Condo and HOA Team Members: Molly Maggiano

coffee-desk-notes-workspace“How do you get them to read?” Sterling Jenkins, CEO and Co-Founder at Gladly, who has both lived in and managed community associations, recently posed this question to the Community Associations Institute group on LinkedIn. Mr. Jenkins acknowledged the importance of community association’s governing documents, but that so few people who live in associations actually read them.

Creative Suggestions

Continue Reading Encouraging Community Association Members to Be Familiar with the Governing Documents May Reduce Violations

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.

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