CondoThe devastating collapse of one of the Champlain Towers South 12-story beachfront residential condominium towers in Surfside, Florida, has prompted officials at the local, state, and federal level to assess what precautions should be taken – or mandated – to prevent similar tragedies. At present, the cause of the collapse is still unknown.

In the wake of the collapse, however, a past engineering report has resurfaced which indicates that the tower had “major structural damage” as of October 2018. The same report concluded that the necessary repair work would be extremely expensive and create a significant disruption for residents. Whether the association acted upon this information reasonably will, unfortunately, be the source of litigation for months and years to come and has caused many condominium associations throughout the state to look in the mirror.

What are associations required to do to avoid a tragedy like Champlain Towers? What should associations do, even if not required by law?

Florida’s Condominium Act addresses engineering reports and warranties to be made by developers of a residential condominium, generally at the time of building or at such time that control of the association transitions to the members. However, there are few, if any, mandates at the state level as to a continued obligation to inspect the structural integrity of buildings. Politicians and residents throughout Florida have called on the state to enact mandatory requirements for building recertification, but Governor Ron DeSantis has not committed to any state action to that effect.

Through the efforts of advocacy groups and industry leaders such as CAI and Florida’s Real Property, Probate, Trust and Litigation Section, which has appointed a Condominium Law & Policy Life Safety Advisory Task Force, it is possible that future legislative sessions will see proposed laws aimed to prevent or minimize the likelihood of similar tragedies. In the absence of such legislation, though, condominium associations are guided primarily by local ordinances (to the extent they exist), and the business judgment of the board of directors.


Continue Reading Condominium associations react to tragedy in Surfside, Florida

Hurricane Season AheadEach year, the months of June to November keep property owners across the State of Florida a bit on edge when storms begin brewing out in the Gulf and the Atlantic. This past weekend tropical depression Claudette kicked off the 2021 hurricane season, signaling to property owners across the state that it is time to begin making the necessary preparations in advance of potential storms. In addition to stocking up on batteries, plywood, and water, property owners should be aware of potential legal consequences resulting from a hurricane or tropical storm.

Damage to land

The first and perhaps most readily apparent of these consequences is when a hurricane causes a sudden change to the shoreline otherwise known as avulsion. The United States Supreme Court defined avulsion as:

the sudden or perceptible loss of or addition to the land by the action of the water or a sudden change in the bed of a lake or the course of a stream.”

Hurricanes are considered avulsive events under Florida law, which – unlike other erosion events (such as accretion or reliction which are more gradual) – preserves the property boundary at the mean high water mark existing prior to the storm. In the aftermath of a hurricane which causes a sudden loss of the shoreline, that boundary remains the same, entitling the State to reclaim or back fill that portion of the beach to ensure that the public right of access is not cut off.

Beachfront owners should be cognizant of the location of the mean high water mark or any coastal construction control line. After a storm passes, this will allow beachfront owners to better understand how the storm impacted their property boundary, and whether the State has any rights to backfill a portion of the beach that was lost.

Purchasing property in hurricane season


Continue Reading Preparing for a Storm: Legal Considerations for Property Owners during Hurricane Season

Naples FL CondoCondominiums, cooperatives, and homeowners associations will see many changes to their operations following the new laws borne from Florida’s 2021 legislative session. Among these changes are new laws governing rental restrictions in homeowners associations in Senate Bill 630. The bill, which passed both the House and Senate, is anticipated to be signed into law by Governor DeSantis and will have an effective date of July 1, 2021.

The new law reflects the homeowners association’s corollary to rental restrictions which have been in Chapter 718 (the “Condominium Act”) since 2004. In summary, the new law will implement that following changes affecting how and against whom rental restrictions may be enforced in homeowners associations:
Continue Reading New laws prompt HOAs to examine – and quickly change – rental restrictions in advance of July 1, 2021 effective date

Gated CommunityThe 2021 Florida Legislative session, which ended on April 30, 2021, was an active one for proposed community association legislation.

The following community association-related bills have either been signed into law or have passed the House and Senate and are pending signature by Governor DeSantis, with anticipated effective dates provided:
Continue Reading 2021 Florida legislative session brings significant changes to community association laws

Earlier this week, Florida Governor Ron DeSantis signed S.B. 72 into law, which grants some civil immunity to business entities against plaintiffs bringing COVID-19 injury and wrongful death claims. A review of the impact S.B. 72 has on business entities and civil claims is provided by my colleague and litigation attorney Heath Gelman here. The bill applies to “certain business entities,” in recognition of the public interest as a whole served by

providing relief to these business … so that they may remain viable and continue to contribute to this state.”

Among other types of businesses included in the definition of “business entities” are corporations not-for-profit under Sec. 617.01401, Fla. Stat. Based on a plain reading of the law, this would include condominium and homeowners’ associations, although it remains to be seen how the application of the law will be interpreted as it percolates in Florida courts.

Sigh of relief


Continue Reading New COVID-19 Civil Immunity Law Provides Relief to Florida Condo and HOAs

Our team previously wrote about pet restrictions in a 2014 article located here. Nearly six years later, pet restrictions continue to be a breeding ground for confusion, particularly with respect to fair housing and discrimination laws and as those laws relate to recent legislation which took effect in July 2020.

According to statistics provided by The Humane Society of the United States, approximately 67% of all households throughout the United States had a pet based on data collected from 2019-2020. While pets have become a mainstay in most American households, they are not necessarily as common in condominium and homeowners association. The governing documents of many community associations impose limits on the types and number of pets a member or tenant may keep in a unit or home.

These pet restrictions take varying forms; sometimes, the goal is to curtail what are deemed to be aggressive or dangerous breeds as defined by the governing documents. In other instances, a restriction may limit the number of pets a single owner may keep, or may define what types of animals are deemed domesticated and permitted to be kept as a pet at all.

Proceed with caution


Continue Reading Pet restrictions revisited: Community associations continue to navigate pet restrictions as new Florida law addresses fraudulent emotional support animal claims and documentation

During the COVID-19 pandemic, most of us have been forced to incorporate greater use of technology to conduct our business. For many associations, some tasks have been done for the first time using electronic technologies, such as video meetings under the exceptions permitted by the board’s emergency powers.

Conducting business by electronic means can increase efficiency and save paper, money, and storage space. Now that we are all getting used to conducting more business solely by solely electronic means, boards and managers may be wondering what they can do under the law to continue to use technology to operate their associations under “normal” circumstances. Here are some reminders of what is permitted under the Florida Statutes.

Meeting Notices

E-mail can be used to provide meeting notices only for owners who have consented in writing to accept notices by electronic means and who have provided an email address for that purpose. Meeting notices must also still be posted in a conspicuous place on the property if otherwise required. In addition to mailing, hand delivering or e-mailing notices, an association may adopt a procedure for conspicuously posting and repeatedly broadcasting the notice and agenda on a closed-circuit cable television system serving the association. If used, the broadcast notice and agenda must be broadcast in a manner and sufficient length of time so as to allow an average reader to observe, read and comprehend the entire content.

Websites


Continue Reading Incorporating Electronic Technology Into Association Operations

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


Continue Reading Selling Your Condo? 7 Things to Know About the Condominium Rider to a Residential Contract

It’s that special time of year where it’s time to break out the sun block and the Yeti coolers. But what does this mean for a Condominium or Homeowners’ Association attorney? Fielding question after question from residents who want to solve all of their Association’s issues before making the trek up north. A lot of the questions we receive from owners are very similar:

  • “Can my Association amend our Declaration this way?”
  • “Can the owners call a member meeting without the Board of Directors?”
  • “Was this meeting properly noticed?”

Nine times out of ten, my answer is always the same: “it depends on the documents.”

Governing Rules


Continue Reading The “ABC’s” of Association Governing Documents