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Are you certified? Are you looking for more information for serving on your Board? Sign up for one of these Board Certification Courses today!

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FAN's Featured Blog PostDo You Need a License for That?posted by Dan Tiernan, COO, Campbell Property Management, December 22, 2016

We all know that you need a license to be a CAM (Community Association Manager). A license is also required for most electrical, roofing and plumbing work as well. Read more

Industry News and ArticlesKeep in mind that some of the articles are directed toward HOAs or condos specifically, but most can be applied to all types of community associations.

Defending (My) Our Castle: A Look at Gun

Friends | Colleagues | Board Members | CAMs | Residents | Vendors

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Regulation by Community Associationsposted by Joseph Adams, Florida Condo & HOA Law Blog, December 14, 2016 On September 6, 2012, David Merritt, president of the Spring Creek Homeowners Association, called a homeowners association meeting to order. Approximately 30 minutes later, Merritt, and former president of Spring Creek Marvin Fisher, would be fatally shot by their neighbor, Mahmood Hindi. Read more

When Alligators Invade - Protect Your Propertyposted by Oba Gathing, The Cooperator South Florida, December 2016 Consider where you live and how your home and lifestyle interacts with the surrounding natural world. Now, think about what that world contains in terms of wildlife. Depending on where you live, this could mean ‘nuisance’ animals as commonplace (and relatively harmless) as raccoons or opossums. Read more Community Update 2016, Volume 07posted by Peter Nolan, Florida Condo & HOA Law Blog, December 12, 2016 The end of the year holidays bring about many changes. Some of the most important for community associations center on new Board members and budgets which will pave the way for what the coming year is to bring. Read more Will Your Community Association be Sponsored by Advertisers Someday?posted by Donna DiMaggio Berger, The Community Association Law Blog, December 28, 2016 I read recently that some of our national parks in the U.S. are going to permit advertising in certain locations within the parks. The reason for this move is ostensibly due to the appeal of millions of annual park visitors who spend many hours

Upcoming Events

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1/18 Board Cert. Course 9am-12pm, Becker & Poliakoff West Palm Beach

1/18 Condo Board Member Course 6-8:30pm, KBR Palm Beach Gardens

1/18 Ask The Attorneys: Sunrise 6:45-8:30pm, KBR Nob Hill Clubhouse

1/20 2017 Legal Update 10am-12pm, Becker & Poliakoff Fort Lauderdale

1/24 40 Year Building Recertification 6:30-8:30pm, KBR Pompano Beach

1/24 Board Cert. Course 9am-12pm, Becker & Poliakoff Fort Lauderdale

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or days enjoying the natural beauty of these venues. Corporate America knows that a large captive audience provides the best opportunity to have a branding message resonate. Read more Investment of Condominium Association Funds Warrants Cautionposted by Joseph Adams, Florida Condo & HOA Law Blog, December 1, 2016

The Florida Condominium Act does not specifically address what type of financial institutions an association may use, or how funds may be held or invested. It is not uncommon for an association’s bylaws to require that funds only be deposited in insured accounts. Read more Rembaum’s Association Roundup: Retroactive Application Statue of Amendments: Does Your Declaration Have “Kaufman” Language?posted by Jeffrey Rembaum, Esq. of Kaye, Bender, Rembaum, December 27, 2016

Community association lawyers are often presented inquiries from their clients as to whether laws newly adopted by the Florida legislature apply to their governing documents, especially when the new law is contrary to their declaration’s existing provisions. A similar question was recently asked and answered by Florida’s Third District Court of Appeal in the case of The Tropicana Condominium Association, Inc. v. Tropical Condominium, LLC. Read more

Neighborhood Watch - Maintain Your Community Safety, Safelyposted by Mike Odenthal, The Cooperator South Florida, December 2016 Everyone is right to be concerned with the safety of their

1/26 Board Cert. Course 9am-12pm, CPM Tamarac Community Center

1/31 Monthly Hot Topics Breakfast 7:30-9:30am, CAI SE Jacaranda Country Club

1/31 Ask The Attorneys: Fort Lauderdale 6:45-8:30pm, KBR ArtServe

January TipsKeith's Corner: Protect Potted Plants

This month, to keep the weeds away set mowing heights to the highest recommended heights. If cooler temperatures are predicted, protect all potted plants by moving them indoors, if possible or to a warmer sheltered area. January is also a great month to prune non-spring trees and flowering shrubs to progress their form.

As always, remember to install your sod green side up!

Keith Carracher, President

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communities, whether they live in an area highly susceptible to crime or a sleepy Mayberry-esque hamlet. Condominiums, cooperatives, and homeowners’ associations are no exception; in fact, the communal nature of these environments may make it even more likely that residents would want to band together in effort to advocate for their mutual well-being. Read more

Am I “Grandfathered in” from the New Condo Rental Restrictions?posted by David G. Muller, Florida Condo & HOA Law Blog, December 20, 2016

The Florida Supreme Court addressed a similar issue in a 2002 landmark case called Woodside Village Condominium Association v. Jahren, in which my firm had the privilege of arguing before the Court on behalf of the association. Read more

Surveillance and The Law - Maintaining Safety While Respecting Privacyposted by A.J. Sidransky, The Cooperator South Florida, December 2016

Both Chapter 718, Florida Statutes, the Florida Condominium Act, and Chapter 720, Florida Statutes, the Florida Homeowners’ Association Act, contain a provision that allows association members to petition the board to address a particular matter. Read more

Campbell appreciates your recommendations:If you hear about neighbors that are considering a change in their property management and think Campbell might be a good fit, please let us know. Recommendations from our clients and partners are what has enabled us to grow over the 60+ years we have been in business.

Feel free to email us at [email protected] or visit us at www.campbellpropertymanagement.com

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Complete Property Maintenance, Inc.Corporate Office (954) 973-3333Jupiter Office (561) 744-3333Fax (954) 979-1424

FAN's December Blog Posts

Do You Need a License for That?Rembaum’s Association Roundup: Retroactive Application Statue of Amendments: Does Your Declaration Have “Kaufman” Language?

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Do You Need a License for That? - Florida Association News Blog

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Florida Association News BlogFlorida Associations' resource for news, legal updates, events & education!

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Do You Need a License for That?Thursday, December, 22nd 2016 in Announcements, Condo, Construction, Contracts, HOA, Legal, Management, Property

Maintenance, Vendors by FAN

We all know that you need a license to be a CAM (Community Association Manager). A license is also required for most electrical, roofing and plumbing work as well.

Myfloridalicense.com is a great source to learn more about what work requires and does not require a license.

Here is a great chart with some examples.

ContractorsA Contractor is someone who demolishes, subtracts from, builds or improves any building or structure for compensation. Examples of compensation are cash, goods, services, etc. Essentially, if you pay someone to construct a building or a structure, make structural alterations to load bearing walls, or perform services such as plumbing or air conditioning work, that person has to have a state contractors’ license.

These items are offered as examples of services you do need to hire a person with a Florida license and services you do not need to hire a person with a Florida license. The list is not all inclusive. If you have specific questions, please contact the department at 850.487.1395 or review the rules for the profession at www.myfloridalicense.com. You should also check with your county or city to learn whether or not a local business tax receipt or certificate of competency is required for services that do not require a state license. Please visit our Unlicensed Activity page to learn more about how you can help us combat Unlicensed Activity.

Needs a License Does not need a license

Build a carport or sunroom for compensation. Install a driveway or install pavers/tile walkways regardless of compensation.

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Do You Need a License for That? - Florida Association News Blog

http://www.campbellpropertymanagement.com/blog/2016/12/22/do-you-need-a-license-for-that/[1/3/2017 2:00:00 PM]

Construct a roof for compensation. Install awnings that do not become a fixed part of the structure regardless of compensation.

Install a dishwasher (requires connecting to drinking water) or replace a hot-water heater for compensation.

Add a water filter onto a faucet regardless of compensation.

Install a central air-conditioning unit for compensation (requires structural work and wiring).

Insert a plug-in A/C window unit regardless of compensation.

Clean central air and heat ducts for compensation (requires partial disassembly of the system, such as removal of air grills).

Change an A/C filter or cleaning ducts that do not require removal of the air grills regardless of compensation.

Repair or replace swimming pool pumps for compensation.

Clean swimming pools.

Install an above-ground pool regardless of compensation.

Perform plumbing work or irrigation installation that requires the contractor to connect lines to potable (drinking) water for compensation.

Install or repair irrigation systems that have a backflow preventer connected to a potable (drinking) water supply regardless of compensation.

Build a barn, metal building, or detached garage for compensation.

Install prefabricated tool shed less than 250 square feet in size regardless of compensation. The shed may be up to 400 square feet if it bears the insignia of approval from the Department of Community Affairs.

Remodel a home that requires alteration or replacement of a load-bearing wall for compensation.

Paint; install cabinets, wood or tile flooring, and insulation regardless of compensation.

Installation or replacement of drywall if the contract also includes work on the load bearing part of the wall, plumbing, electrical, or air conditioning work.

Installation or replacement of drywall if the contract does not include other work on the load bearing part of the wall or any plumbing, electrical, or air conditioning work.

by Dan Tiernan, COO, Campbell Property Management

Tags: Florida Contractor's license

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Home > Common Areas > Safety and security > Defending (My) Our Castle: A Look at Gun Regulation by Community Associations

Defending (My) Our Castle: A Look at Gun Regulation by Community AssociationsBy Joseph Adams on December 14th, 2016Posted in Safety and security

By Joseph E. Adams and Jay RobertsPlease click here for the entire article as a PDF

On September 6, 2012, David Merritt, president of the Spring Creek Homeowners Association, called a homeowners association meeting to order. Approximately 30 minutes later, Merritt, and former president of Spring Creek Marvin Fisher, would be fatally shot by their neighbor, Mahmood Hindi. The dispute between Hindi and Spring Creek involved an unapproved driveway and fence installed by Hindi. Hindi was charged with murder, but committed suicide in jail prior to his trial. The Hindi case may not be familiar to many Floridians, but the case of George Zimmerman certainly is. Zimmerman was allegedly acting as an unofficial neighborhood watch participant within Retreat at Twin Lakes, a Sanford townhouse development, when he had an altercation leading to the shooting death of Trayvon Martin. Zimmerman was found not guilty of criminal wrongdoing in the death of Martin. Martin’s family later sued the homeowners association. The homeowners association and the Martins reached an undisclosed settlement in that case, however, there were reports that the association paid Martin’s family upward of $1

million to settle the dispute.

The issue of gun control is everpresent in America, and engenders strong emotions and arguments on all sides. This article does not seek to advocate a position for or against gun control, or assume that gun regulation by community associations will prevent or cause additional harm to the residents governed by such regulations. Rather, the article analyzes the legal basis upon which gun restrictions by Florida community associations would be examined by a court.

Both the United States and Florida constitutions state that the right of the people to keep and bear arms

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shall not be infringed. In general, the federal and state constitutions limit the powers of government, not private citizens or private corporations. In certain circumstances, courts have imposed constitutional restraints on private actors. These circumstances include state action through judicial enforcement, the performance of public functions, and state involvement.

The seminal case concerning state action involves a central component to all community associations in Florida, namely, restrictive covenants. Shelley v. Kraemer, 334 U.S. 1 (1948), concerned two sets of private restrictive covenants (one in Missouri and one in Michigan). Both sets of restrictive covenants prohibited non-Caucasian persons from occupying the real property encumbered by the restrictive covenants. Preceding Shelley, the U.S. Supreme Court had invalidated restrictive state laws and local ordinance that prohibited residential occupancy based on race. The Buchanan v. Warley, 245 U.S. 60 (1917), and Harmon v. Tyler, 273 U.S. 668 (1927), cases were based upon the 14th Amendment to the U.S. Constitution being the conduit, which makes the U.S. Constitution’s fundamental rights apply to actions by state government.

Please click here for the entire article as a PDF

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TAGS: 2nd amendment, bear arms, condos, Florida, gun control, guns, hoa

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Defending (My) Our Castle: A Look at Gun Regulation by Community Associations

Community Update 2016, Volume 07

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Case Law & Court Rulings

Owner Payment Responsibility

Safe Harbor

Association Documents

Board Eligibility

CALL Alert

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Communities of Excellence

Community Update

Construction

Construction Issues & Contractual Disputes

Covenant Enforcement/Violations

Arbitration & Court Rulings

Rules & Regulations

Suspensions, Fines & Remedies

Developer Obligations

Discrimination/Fair Housing

Disability

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SECURITY

When Alligators InvadeProtect Your Property

BY OBA GATHING 2016 DECEMBER

Consider where you live and how your home and lifestyle interacts with the surrounding natural world. Now, think about what that world contains in terms of wildlife. Depending on where you live, this could mean ‘nuisance’ animals as commonplace (and relatively harmless) as raccoons or opossums. Nuisance wildlife is generally defined

as wildlife that causes or has the capacity to cause property damage, or that presents a threat to public safety or causes annoyance within, under or upon a building. Sure, it’s a hassle to clean up after a troop of raccoons raids your trash cans, but for residents of the state of Florida, nuisance animal concerns can go well past fuzzy nighttime bandits and into significantly more dramatic—and potentially dangerous—territory.

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We’re talking about alligators, of course. While generally shy of humans, the state’s indigenous reptiles do represent a very real threat to life and limb—and with real estate development pushing into natural habitats and bringing humans and pets into closer and more frequent contact with crocodilians, it pays to be aware of the danger that contact can pose.According to the Florida Fish and Wildlife Conservation Commission

(FWC), Florida’s “alligator country” includes every county in the state, and contains well over 1 million wild gators that, when thought of in relation to the state’s human population, comes out to a ratio of about one alligator for every 15 residents.

And alligators aren’t the only crocodilians that make their home in Florida’s waterways and semi-tropical landscape; their cousin the caiman is here too. Caiman are generally smaller and less fierce than gators, and are found mostly in the southern part of the state. Native to Central and South America, they likely gained a foothold in Florida after being brought here as pets and then released into the wild after their owners had second thoughts. Another much larger and more aggressive gator relative is the crocodile, which, while very rare, has been sighted in the brackish coastal waters in the extreme southern tip of the state.

Gator? I Hardly Know ‘ErOverseeing all these scaly goings-on is the FWC, a state government agency dedicated to the management and regulation of Florida’s fish and wildlife resources. The agency consists of six separate divisions, including the Fish and Wildlife Research Institute, the Division of Hunting and Game Management, the Division of Habitat and Species Conservation, the Division of Freshwater Fisheries Management, the Division of Marine Fisheries Management, and the Division of Law Enforcement.

To monitor and manage the Sunshine State’s sizeable reptilian population, the FWC maintains its own Statewide Nuisance Alligator Program, or SNAP. According to the FWC, the program received 13,962 complaints concerning gators at least four feet long that resulted in the removal of

on A Private Matter:could they install camaras in the

laundry room ?

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belong to and who is responsible if something happens tpupaexo them? Our condo board keeps changing their min…

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7,513 alligators – and that was just in 2015. Not too bad for an animal that was once on the endangered species list! The American alligator was removed from the endangered list in 1987, after being nearly eradicated through hunting and habitat destruction. Since then, their numbers have increased to a point that they are a nuisance at times and must be properly dealt with to ensure the safety of those who may come into contact with them.

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Home > Community Update > Community Update 2016, Volume 07

Community Update 2016, Volume 07By Peter Nolan on December 12th, 2016Posted in Community Update, Construction Issues & Contractual Disputes

The end of the year holidays bring about many changes. Some of the most important for community associations center on new Board members and budgets which will pave the way for what the coming year is to bring. In This Issue:

Learn ways to obtain on-going assessments despite an owner’s bankruptcy filing in I Filed Bankruptcy, It’s Not My Problem!

The importance of choosing words wisely not just in speaking but in contracts, covenants and even Statutes, in Words Have Meaning and, Possibly, Meaning Lots of Money

If screening is an option for your community, then New HUD Guideline Limit the Use of Background Checks for Associations to Prohibit Discrimination will help keep your Association from running afoul of Federal guidelines.

We also announce changes planned for the Community Update Newsletter (“CUP”) in our Did you Know? series. Next year promises to be one of continued technological changes and CUP will not be left behind. In 2017 we will phase out paper copies instead providing you the same community association insight you have come to expect from Becker & Poliakoff in a digital format readily accessible with just a few clicks of the mouse or taps on your phone or tablet.

Marilyn Perez-MartinezEditor

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By Donna DiMaggio Berger

Home Donna DiMaggio Berger Becker & Poliakoff Community Association Law

Wednesday, December 28, 2016

Will Your Community Association be Sponsored by Advertisers Someday?

I read recently that some of our national parks in the U.S. are going to permit advertising in certain locations within the parks. The reason for this move is ostensibly due to the appeal of millions of annual park visitors who spend many hours or days enjoying the natural beauty of these venues. Corporate America knows that a large captive audience provides the best opportunity to have a branding message resonate. Despite the logic, to me some things should be off-limits, sacrosanct if you will.

The continuing trend to brand everything and carve out messaging on every available blank space has me thinking about the potential for

advertisers to look inside private residential communities next. Many condominium and cooperative high-rises as well as large HOA communities already allow certain advertising activity such as cell phone towers and ads in their social directories and on in-house cable channels. Most of that activity, however, is relatively unobtrusive and does not raise any eyebrows. This could change if companies look next to large, private residential communities which contain hundreds or even thousands of residents along with the guests of those residents entering and exiting the community each day. Can you imagine the potential for advertising, particularly in creative ways?

Some untapped areas might include:

Ads on the community bulletin board, association website, newsletter and other communication portals;Ads on bus benches and other stops in communities with transportation systems;Targeted sponsorship for certain recreational amenities or events. For example, the exercise room sponsored by LA Fitness, the Spring Picnic sponsored by Publix;Signage at the community entrances and guard house;Ads in the elevators, mail room, laundry facilities and other common areas.

Some larger communities in Florida and likely throughout the country are already experimenting with allowing more advertising involvement in their community's lifestyle. I have been to social events in client communities where portions of the event costs were defrayed by contributions

As the 12/31/16 deadline for Florida high-rises to opt out of a full sprinkler retrofit looms large, the confusion regarding which multifam...

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Posted by Donna DiMaggio Berger at 1:19 PM

Labels: advertising

from vendors who provide services to the community. I think more communities might consider these advertising arrangements if they were approached by companies to do so but up until now corporate America does not appear to have given much thought to the potential for community association advertising.

That might change and volunteer boards must decide in advance how to navigate these potentially risky waters.

Advertising inside your community might very well fall within the category of 'be careful what you wish for'. It is important for community association boards to remember that they are typically operating not-for-profit corporations. As such, while certain sources of income other than the collection of assessments can be used to defray costs, they can also trigger tax consequences.In Florida, boards can grant long-term easements so these kinds of advertising arrangements

could be structured as easements which could prove difficult to vacate early if the association experiences buyer's remorse. Boards considering such arrangements in the future would be well advised to consult with experienced counsel to discuss how long the initial term should be (a trial period would be best) and to craft sufficient disclaimer language advising residents and guests that the association is neither advocating for nor vouching for the advertisers in the community.

It is equally important to understand that once you start deriving revenue from a certain source, it is easy to become dependent on that revenue and therefore loathe to turn off its source. While advertising is the fuel which drives the capitalistic engine, when it is used in a private residential community setting, the big question becomes whether such advertising will improve the quality of life in our communities or will it merely make it more difficult to seek refuge inside our previously tranquil communities.

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Home > Operations > Fiduciary Duty of Board of Directors > Investment of Condominium Association Funds Warrants Caution

Investment of Condominium Association Funds Warrants CautionBy Joseph Adams on December 1st, 2016Posted in Budgets, Reserves & Financial, Fiduciary Duty of Board of Directors

Question: I am a member of my condominium association’s board of directors. Recently, we were discussing how the association’s reserve funds should be invested. Historically, we have kept the association reserve funds in savings accounts and CDs, which are fully insured. However, the returns on these accounts have been minimal. Certain members of the association are insisting that the association diversify how the reserve funds are invested, including investing in the stock market. Is this appropriate for a condominium association? (J.M. by e-mail)

Answer: The Florida Condominium Act does not specifically address what type of financial institutions an association may use, or how funds may be held or invested. It is not uncommon for an association’s bylaws to require that funds only be deposited in insured accounts. Therefore, before the association could consider if other investment vehicles are appropriate, the association would have to review the condominium documents to confirm that there is no express limitation on the types of financial accounts the association may maintain.

In my opinion there is cause for substantial concern with an association placing its reserve funds in investments that carry risk, like the stock market. I have seen associations lose money in non-guaranteed investments, sometimes major sums. It often gets ugly. Simply stated, I do not recommend it.

The association is investing funds as a fiduciary. Return should be the lowest priority on the totem pole. Safety should always be the board’s main objective, and then liquidity. While we all have different tolerances for risk when investing our own money, different considerations apply when the association is in essence acting as the caretaker for the money of others.

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Rembaum’s Association Roundup: Retroactive Application Statue of Amendments: Does Your Declaration Have “Kaufman” Language? Tuesday, December, 27th 2016 in Announcements, Legal by FAN

Community association lawyers are often presented inquiries from their clients as to whether laws newly adopted by the Florida legislature apply to their governing documents, especially when the new law is contrary to their declaration’s existing provisions. A similar question was recently asked and answered by Florida’s Third District Court of Appeal in the case of The Tropicana Condominium Association, Inc. v. Tropical Condominium, LLC.

Before diving into the facts of the case, a brief explanation of the concepts mentioned by the Court is necessary. By way of summary, the “contracts clause” of the Florida Constitution establishes the general rule that the legislature is prohibited from enacting any law that impairs substantive rights of an existing contract. A declaration of covenants or declaration of condominium, as the case may be, is a contract, too. It is a contract between the members of the association and the association, itself. The declaration describes the contractual obligations of the members’ assessment and maintenance obligations and fully describes the association’s obligations to its members, too. Generally speaking, the laws in place at the time the declaration is recorded are essentially incorporated into the declaration as if they were initially drafted into it upon its creation. If a newly enacted or amended statute impairs a vested substantive right guaranteed by a declaration, the “contracts clause” operates to prevent it from being applied to the declaration. But, if the newly adopted law is of a procedural nature, then it more likely than not does apply.

Substantive laws are with regard to one’s rights and duties, and include, for example, in the condominium context, the configuration and size of a unit, the ownership share in the common expenses and common surplus, and the appurtenances to a unit. On the other hand, procedural laws are laws that dictate how such rights and duties are to be performed. A statute is procedural if it merely establishes how some right or obligation under the declaration is to be performed. For example, Chapter 720 of the Florida Statutes, more commonly referred to as the “Homeowners’

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Association Act,” provides that, unless the bylaws of the association provide for a lesser percentage, the quorum requirement for a meeting of the members is 30%. Thus, if the HOA’s declaration requires 50% of the membership to establish a quorum, the quorum requirement is over-ruled by the statute and would be 30% (absent a court order holding otherwise).

While the “contracts clause” creates a general rule against new statutes impairing existing substantive rights as set out in a declaration, there are, of course, exceptions to the rule. In determining whether a statute may be applied to the declaration, the first determination must be whether the statute is procedural in nature or whether it creates, alters, or impairs substantive rights. Procedural statutes will apply to the declaration, whereas substantive statutes do not.

However, even if a statute is deemed substantive in nature, it may be still applied to a declaration if the statute in question contains language that clearly expresses the legislature’s intent that it is to apply retroactively or that the statute is remedial in nature and designed to clarify existing law. Of course, upon judicial challenge, the courts can hold that just because the legislature intended the new law to apply retroactively or be remedial that such application is unconstitutional or otherwise improper for one reason of another.

Another exception to the procedural/substantive argument is, what is often referred to as, “Kaufman” language. When “Kaufman” language is included in a declaration, the association never has to conduct the procedural/substantive analysis. An example of “Kaufman” language follows: “This Declaration is subject to Chapter 718, Florida Statutes, as it is amended from time to time.” The “Kaufman” language is the latter emphasized phrase. By inclusion of such language, all of the changes to the Florida Statutes, including changes to substantive rights, will apply to the declaration, without regard to whether the changes are beneficial or detrimental to the association.

With this general knowledge, we turn back to the facts of The Tropicana Condominium Association, Inc case. In this case, the declaration of condominium provided that the condominium could be terminated at any time by the written consent of all of the unit owners and all institutional mortgages holding mortgages on the units and that amendments to the termination process of the declaration of condominium required unanimous consent of the unit owners. The declaration of condominium was recorded in 1983 and it did not contain “Kaufman” language.

In 2007, the Florida legislature amended the termination provisions of Chapter 718 of the Florida Statutes, more commonly referred to as the “Condominium Act,” to provide that a condominium could be terminated upon the approval of 80% of the unit owners so long as not more than 10% of the unit owners oppose the termination.

The Tropicana Condominium Association made multiple attempts to amend the termination provisions of the declaration of condominium to reduce the threshold needed for termination. However, the amendments failed to receive the unanimous approval of the unit owners. Nevertheless, it appears as though the 2007 amendment to the Condominium Act, requiring the 80% approval to terminate was followed, in direct contravention to the terms for termination as set out in the declaration. Thereafter, the unit owners filed the lawsuit against their association for failing to obtain the unanimous approval of the unit owners.

On appeal, the condominium association argued that, notwithstanding the failure of the association to obtain the required approval for the amendment to the declaration of condominium, the 2007 amendment to the Condominium Act still applied because it provided that “[t]his section applies to all condominiums in this state in existence on or after July 1, 2007.” The Court, however, did not agree. It found that the retroactive application of the 2007 amendment to the Condominium Act “would eviscerate the Tropical’s owners’ contractually bestowed veto rights.”

In discussing the declaration of condominium’s termination provisions, the Court found that the declaration of condominium’s termination provisions created in each unit owner a vested right to veto a termination attempt with the intent of protecting the unit owners. Therefore, applying the 2007 amendment to the Condominium Act would “work a severe, permanent, and immediate change” to the unit owners’ protections against unwanted termination

attempts. In other words, even though the termination process is procedural in that it describes how to terminate the condominium, the percentage of unit owner votes required to bring about the termination was considered to be a vested substantive right.

If nothing else, The Tropicana Condominium Association, Inc., case further demonstrates the lack of clarity that exists when making a determination as to the applicability of newly adopted laws when compared against the existing provisions of an association’s declaration, absent the inclusion of “Kaufman” language.

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.

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One thought on “Rembaum’s Association Roundup: Retroactive Application Statue of Amendments: Does Your Declaration Have “Kaufman” Language?”

Howard Rosen says:

December 28, 2016 at 3:05 AM

Can a condo position of board member?board rule that “snowbirds” (undefined) may not run for the

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SECURITY

Neighborhood WatchMaintain Your Community’s Safety, Safely

BY MIKE ODENTHAL 2016 DECEMBER

Everyone is right to be concerned with the safety of their communities, whether they live in an area highly susceptible to crime or a sleepy Mayberry-esque hamlet. Condominiums, cooperatives, and homeowners’ associations are no

exception; in fact, the communal nature of these environments may make it even more likely that residents would want to band together in effort to advocate for their mutual well-being. Sometimes, this takes on the form of a neighborhood watch, with neighbors working together to establish a chain of command that will rapidly alert the proper authorities should something seem amiss. And this can often be well and good; mutual support systems are inherently a positive, and neighborhood watch programs can and do have a place in a multifamily residential context. But it’s important to be aware of the boundaries. As the killing of Trayvon Martin in 2012 starkly demonstrated, when unqualified, untrained citizens take the law into their own hands, tragedy can all too easily be the result.

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Right NeighborlyWhen considering establishing a neighborhood watch, it’s important for an association to acknowledge where its responsibilities lie and what its specific goals are and then develop a structure from there. The primary purpose of a neighborhood watch should be to observe and report, rather than intervene and escalate.

“[Neighborhood watch] is an area that needs to be handled delicately, and must be approached very cautiously,” warns David Muller, a community association attorney with the law firm of Becker & Poliakoff in Naples. “There’s a common misconception that community associations affirmatively ensure the safety of their residents and owners, but the reality is that associations are tasked with doing that which is required of them under the governing documents and the statutes. Unless those documents specifically state that the association is tasked with protecting the residents from crime, then that’s not one of its affirmative obligations. Now, a lot of times people misconstrue that statement as allowing the board to turn a blind eye, but of course that’s not the case either. If you’re aware of violations that are happening and ignore them, there could be liability for the association.”

Of course, not every association is content with adhering to its documents and nothing more. Some will strive to go above and beyond to bolster their communities. And if this means considering forming a watch group or committee, it’s crucial that it be done the right way.

Carmen Caldwell, executive director of Citizens’ Crime Watch of Miami-Dade County and treasurer of the National Crime Prevention Association in Doral, stresses that neighborhood watches work best in communities where the owners live in their residences year-round. “The essence of a neighborhood watch is establishing a phone chain,” she explains. “Everyone participating exchanges numbers —but if many people are leaving for the winter, that chain falls apart.”


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Home > Association Documents > Am I “Grandfathered in” from the New Condo Rental Restrictions?

Am I “Grandfathered in” from the New Condo Rental Restrictions?By David G. Muller on December 20th, 2016Posted in Association Documents, Elections, Rental

Question: My condominium has always allowed units to be rented for a minimum period of 14 days. I only use my unit a few times a year and rent it when I am not in residence. I usually rent to 10 or more different groups in a given year, always obeying the existing 14 day minimum. I make a considerable amount of rental income during the high season. I just received notice that my condominium association is proposing a rental regulation amendment vote which will impose a 6 month minimum. I stand to lose a lot of money. Can they do this and shouldn’t I be “grandfathered

in”? K.E. via e-mail

Answer: If you vote “no” on the proposed amendment, and it passes, the new 6 month minimum rental restriction will not apply to you.

The Florida Supreme Court addressed a similar issue in a 2002 landmark case called Woodside Village Condominium Association v. Jahren, in which my firm had the privilege of arguing before the Court on behalf of the association. In that case, a condominium association amended its declaration to severely limit rentals by prohibiting annual and other long term rentals and basically only permitting seasonal rentals. Certain unit owners complained that they bought their condominium units with the specific intention of leasing them annually, a practice permitted by the declaration when they bought their units. These owners sued the association on the theory that they had lost vested property rights when the amendment was passed. The trial judge and an appeals court sided with the investors. However, the Florida Supreme Court ultimately found in favor of the association, ruling that when condo owners buy their units they are on notice that the contract that spells out their legal rights, the declaration of condominium, can be amended by the vote specified therein.

After this decision, investor groups lobbied the Florida Legislature for a change. In 2004 the law was amended and now provides that: “An amendment prohibiting unit owners from renting their units or altering the duration of the rental term or specifying or limiting the number of times unit owners are entitled to rent their units during a specified period applies only to unit owners who consent to the amendment and unit owners who acquire title to their units after the effective date of that amendment.”If your condominium was developed before 2004, there is some room to debate the retroactive effect of

the statute. However, most associations follow the law.

As applied to your situation, the proposed amendment will, if adopted, alter the duration of the minimum rental term. As such, the statute will be triggered and if you do not vote in favor of the amendment the new rental policy will not apply to you. When you sell or transfer your unit, the new rental restriction will apply to the future owner of your unit. Also, rental amendments that do not impair minimum lease terms







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SECURITY

Surveillance and the LawMaintaining Safety While Respecting Privacy

BY A.J. SIDRANSKY 2016 DECEMBER

Secure. The word has many meanings. According to Google definitions it can mean “to fix or attach something to something else. It can mean to protect against threats or make safe. Or it can mean to feel free from fear or anxiety.” Perhaps that feeling of security is the single most important thing we can to feel in our homes.

Security is a major issue for condominium communities today. The choice to buy into a condominium or other multifamily community overseen by an HOA rather than a private home may even be based on the desire of the purchaser to have peace of mind that security concerns are being addressed on a community-wide basis. According to an article that appeared in CONDO.ca online, “Security was the number-one concern among people looking to purchase a condominium.”

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The state of surveillance and security has come a long way over the past few decades. Where security issues used to rest on the employment of security personnel and perimeter fencing, today’s security arrangements are more hi-tech and complex. Along with technology though, has come an uptick in both legislation and litigation – much of it arising at the intersection of legitimate security concerns with equally legitimate concerns about propriety and privacy.

Walking a High WireWhile board members of condominium associations and HOAs are as concerned with their security as the rest of their fellow condominium members, they have to balance the legal issues that govern both the successful security apparatus of the community and the potential liabilities of the association. According to Lisa A. Magill, an attorney Of counsel with Kaye Bender Rembaum, a law firm with offices in both Pompano Beach and Palm Beach Gardens, “Boards must refrain from referring to personnel as ‘security guards’ and stay away from any claims that the property is ‘secure.’ Guard gates do not necessarily function as security devices—they are more of a traffic control system and amenity. The association is not intended to be a ‘guarantor’ of security, even though there is a fiduciary duty to maintain the property in safe condition.” The distinction may seem nitpicky, but it is in fact a fair basis for litigation, so for the sake of the community and the board it is important.

Another interesting facet of the laws governing security in Sunshine State condos and HOAs pertains to when a board can act on its own to change or otherwise increase (or for that matter decrease) security arrangements.Magill explains that “The Florida Condominium Law generally prohibits

‘material alterations’ or ‘substantial additions’ to a property without membership approval. Security and many technological improvements can be considered alterations or improvements, triggering a membership vote. For example, in Warner Trust v. Azure at Bonita Bay Condominium Assn., Inc. the board installed two additional cameras in the building, one at the door from the parking deck to the garage and the other at the


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