Blog

Lessons from the Catastrophe at Surfside Beach

By Russell E. Klemm, Partner & Litigation Manager
The recent catastrophic collapse of the condominium building in Surfside, Florida, was a tremendous shock to all Floridians and, particularly, to condominium residents.
There are also lessons to be learned from this tragedy, which every high-rise condominium association, should be cognizant of. The Champlain Towers were in the midst of a required 40-year structural analysis, when the collapse occurred. The requirement for such a structural evaluation and report is not unique to the area (Dade County). However, the requirements for such a structural inspection and report vary by Counties in Florida. Florida high-rise condominiums that are in areas that do not have a requirement for structural inspections, should, nevertheless, consider having a comprehensive structural inspection and evaluation done if the building is 30-years or even 20-years old. Scheduling an appointment with a qualified Florida structural engineer is worth the cost and all older Florida high-rise condominiums should consider doing so.
As would be expected, Florida civil engineers and structural engineers are in great demand. Condominium associations seeking to retain such an expert may experience a delay in doing so. It is also important to examine the consulting engineer’s credentials, to ensure that only a licensed civil engineer or structural engineer be retained. A list of qualifying engineers may be obtained at the American Society of Engineers’ website at: www.asce.org and at the American Society of Structural Engineers at www.asce.org/structural-engineering/structural-engineering-institute. Another important credential is certification by the ”Structural Engineering Certification Board.”
An additional concern is insurance coverage in the coming year for high-rise condominiums. If you are in a high-rise condominium, you can expect higher premiums or, in some cases, cancellation of your policy and the inability to obtain a new policy. If your association faces this situation, your association should contact the Citizens Property Insurance Corporation, which is a Florida not-for-profit corporation and the insurer of last resort in the State of Florida.
One positive note from the tragedy in Surfside will be a heightened awareness of the structural integrity of high-rise condominium buildings and hopefully the willingness of condominium associations to address any structural issues, without unnecessary delay.

NEW CDC EVICTION ORDER – NOW OCTOBER 3, 2021

NEW CDC EVICTION ORDER IN PLACE EXTENDS MORATORIUM UNTIL OCTOBER 3, 2021

ALL EVICTIONS CAN STILL BE FILED AS NORMAL  –  30 DAY NONPAYMENT OF RENT NOTICE REQUIREMENT FOR CARES ACT COVERED PROPERTIES IS STILL IN EFFECT

Video explaining the NEW CDC Order
The NEW CDC Order is in effect until October 3, 2021.
This Order applies to Florida counties where there is a substantial or high COVID transmission rate. As of August 4th, this includes 100% of Florida. This can change so keep up with the law. 

CLICK HERE FOR THE COUNTY TRACKER

LAWSUITS WILL BE FILED AND THIS ORDER COULD BE STRUCK DOWN BY THE SUPREME COURT, BUT FOR NOW, WE ARE BACK TO SQUARE ONE.

ALL EVICTIONS CAN STILL BE  FILED

The CDC Order does not prevent us from filing any type of eviction, (Declaration or no Declaration in place), but the Consumer Financial Protection Bureau’s rule of May 3 still requires the Tenant gets a special “notice” at the same time the Tenant would get their usual 3 Day Notice and/or possibly the Nonrenewal Notice. 

Your 3 Day or 30 Day Notice (CARES Act covered) still needs to contain the Notice of Rights under the CDC Order or the Notice of Rights can be given along with your 3 or 30 Day Notice. 

We recommend that you either give the wording to the Tenant with the 3 Day or 30 Day Notice and/or Notice of Nonrenewal, or you put this wording ON either notice so it is clear and conspicuous.

Nonpayment, Nonrenewal/holdover, and Noncompliance cases can all still be filed whether the Tenant has provided you with a CDC Declaration or not.

YOUR CURRENT OPEN AND NEW NONPAYMENT OF RENT EVICTIONS 

The final step (removal by the Sheriff), will not occur in a nonpayment case until after October 3, 2021 if the Tenant has presented the CDC Declaration UNLESS a judge has previously struck the Declaration down. 

IF NO CDC DECLARATION HAS BEEN SUBMITTED BY THE TENANT:

Most nonpayment cases will move through fine.

IF  A CDC DECLARATION HAS BEEN SUBMITTED BY THE TENANT:
Many judges are striking the Declaration if the Tenant does not qualify under the Declaration requirements.

YOUR NONRENEWAL/NONCOMPLIANCE EVICTIONS:
In most cases, these evictions are moving through and are not being impacted by the CDC ORDER or a submitted Declaration.
YOUR OPTIONS FOR FILED EVICTIONS AND EVICTION AVOIDANCE TECHNIQUES
You still have options with your Tenants.
CASH FOR KEYS – This is often a viable method.  Download the form we provide if needed
AGREEMENT TO VACATE – Many Tenants will indeed sign an Agreement to Vacate Form.  Please see the video we have on this topic and download the form if needed
RENTAL ASSISTANCE FUNDS
Money is still being allocated by the government for rental assistance funds to the Tenant and directly to the Landlord. Keep seeking these funds out.  If an eviction is OPEN, contact us FIRST before accepting any assistance or signing any assistance paperwork.
CLICK HERE FOR INFO ON FINDING EMERGENCY RENTAL ASSISTANCE FUNDS

PAYMENT PLANS AND STIPULATIONS
Nothing is stopping you from accepting partial rent or entering into payment plans.  If you are dealing with a CURRENT OPEN EVICTION, contact us first before accepting any money so we can get you a STIPULATION.

FEEL FREE TO CALL OR EMAIL US AT ANY TIME.  IN DOUBT?  CONTACT US at info@evict.com

 WWW.EVICT.COM 

ONLINE EVICTION FILING
EVICTION STATUS
EVICT.COM

Association Statute Language Change

ATTENTION: Associations/Condominium Property Managers

Just making sure that you are aware that the Florida Statutes were amended effective July 1, 2021, and the amendment affects the process for sending past due accounts to an attorney for collection. Here are the important points:

1. Before attorney’s fees can be incurred and charged to an owner, a new “courtesy” Notice of Late Assessments must be sent to the delinquent owner(s). The Notice of Late Assessments must be sent by first-class United States mail to the owner at his or her last address as reflected in the association’s records and, if that address is not the unit address, must also be sent by first-class United States mail to the unit address.

2. We will get a presumption, for legal purposes, that an association properly mailed a Notice if a board member, officer, or agent of the association, or a licensed manager, provides a sworn affidavit attesting to such mailing. Since we anticipate that owners may try to claim that the courtesy Notice was not sent, we really do want that legal presumption; so I do suggest that the person sending the Notice provide a notarized affidavit of mailing for each Notice.

3. A Word version of the Notice of Late Assessments form is attached for your use. Please send this early in the process, before the account gets very far in arrears; the Association will have to wait 30 days after this Notice is sent, before referring a delinquent account to an attorney for further collection activity.

4. From July 1st forward, the time to pay, in the Intent To Lien and in the Intent To Foreclose, will be 45 days (previously, 30 days each). So in a nutshell, the process is now:

a) give the Notice of Late Assessments, and wait 30 days;

b) if not paid, refer to attorney for an Intent to Lien, which gives 45 days;

c) if not paid, we record a lien, and send an Intent To Foreclose, which gives 45 days; and

d) if not paid, when the 45 days runs, we can then finally start a lien foreclosure.

As you can see, these new amendments will stretch the already long notice/lien/foreclosure process out by at least an additional 60 days, so it is best to send the attached Notice of Late Assessments in the early stages of a delinquency.

Please let me know if you have any questions regarding the new procedure.

STATUTE LANGUAGE CHANGE – NOTICE OF LATE ASSESSMENT CONDO

Investing in Irrigation & Drainage

Investing in Irrigation & Drainage
Water is an important factor for any landscape
The way that a property uses and manages water has a huge bearing on its overall health. By prioritizing your irrigation and drainage systems, you maximize the health of your landscaping and ensure that your property is safe and accessible for all who use it.
Our U.S. Lawns crews of trained professionals perform routine irrigation inspections and make any adjustments or repairs to keep irrigation systems working effectively and efficiently. Proper irrigation practices increase root depth, as well as tolerance to drought and other stresses.
Efficient Irrigation is Key
We take into account the water needs based on types of plants & turf, season, soil type, shade in the landscape, etc., as well as water required during establishment of new plantings.
Multiple zones are programmed to water specific areas according to their specific needs, adjusting in response to changes in rainfall and other factors.
Smart irrigation systems with rain and soil sensors allow you to save money by efficiently watering your grounds with total control.
Rainwater Runoff
While properties need irrigation, some may also need to deal with excess rainwater runoff through a well-designed and functioning drainage system.
Excess water can erode soil, and cause harm to plants and turf areas.
Standing water can also compromise hardscaping. In addition to becoming a structural liability, the mud and puddles brought about by poor drainage is inconvenient and messy for everyone.
Drainage Needs
Drainage needs vary greatly, depending on the inclines and layout of your property.
Settling ground, maturing landscapes, and new construction can all alter the flow of runoff and require an update to your drainage system.
Water is an important factor for any landscape. It’s an essential need to maintain trees, shrubs, flowers and turf. It can also cause considerable difficulty and damage if not properly managed.
An investment in quality irrigation, and drainage where needed, pays dividends in the long run by preventing costly repairs.
Investing in Irrigation & Drainage

Condominium’s authority to pass special assessments found in governing documents

Dear Poliakoffs,

I live in a condominium building that is currently controlled by the developer, although they do appear to be doing what is best for owners.

Several unit owners would like to make changes to the building, ranging from painting the walls a different color to hiring a more expensive cleaning service. They propose that these changes will result in a “small” special assessment for all unit owners.

A lot of “small” changes will obviously result in larger maintenance fees. What is the Florida law regarding the imposition of a number of small special assessments without a unit owner vote?

Signed, R.J.

Dear R.J.,

The Condominium Act does not provide any guidance with respect to the board’s authority to pass a special assessment, other than to specify that notice of any meeting at which non-emergency special assessments will be considered must be mailed and posted at least 14 days in advance; and the notice must state that assessments will be considered and state the estimated cost and purposes of the assessment. You need to look at the governing documents to determine whether the board has the authority to pass special assessments, and whether there are any restrictions on such authority. Most frequently, I see governing documents that give condominium boards broad authority to pass special assessments as needed when the regular assessments are insufficient to cover the association’s expenses. Sometimes, there are dollar limits on such assessments without membership approval; or other times there may be limitations on the purpose of the assessment without approval (for example, assessments for repairs and maintenance are allowed, but assessments for capital improvements require a membership vote). There’s just no way to know without reading your declaration and bylaws.

There is a provision in Section 718.112, Fla. Stat., stating that “if the developer controls the board, assessments shall not exceed 115 percent of assessments for the prior fiscal year unless approved by a majority of all voting interests.” This provision seems to refer to general budgeted assessments, but it’s conceivable that it might be interpreted to relate to additional special assessments, as well—and so this is something for the board to discuss with the association’s attorney.

Dear Poliakoffs,

Our manager in my condominium requires all contractors working in the building to provide a “certificate of liability insurance naming the association as additional insured and referencing the unit owner and unit number in the description” – no matter how small the project. Insurance companies charge the contractor from $150 to $300 for providing this service and the cost is passed on to the unit owner. It is my position that this is an unnecessary, punitive and arbitrary requirement for small projects. It places an unnecessary financial burden on the homeowner. It discriminates against the independent service providers. In addition, contractors who work frequently in the building for small repairs (i.e. plumbers, etc.), are allowed to provide this additional certificate one time to cover all of their contracts in the building.

Contractors carry their own liability insurance and unit owners carry homeowners’ policies. Of what value is a third liability coverage?

Is this an appropriate policy for a condominium? It is not specified in our documents or our rules and regulations – but it’s merely a policy instituted by management, and as far as I know without board approval.

Signed, N.K.

Dear N.K.,

First, what you’ve described is effectively a rule, and so I do think it should be formalized by a board vote.  And, because it’s arguably a rule regarding unit use, my recommendation would be to pass the rule at a meeting noticed by mail 14 days in advance (as is required by the Condominium Act.)

It’s important to understand what being named as an “additional insured” means to an association, because I think most people misunderstand the impact of having such a certificate. The Association does not need to be an additional insured on a contractor’s insurance policy if it wants to file a claim against the contractor’s insurance because the contractor damages the building. It has that right simply because the contractor carries the liability insurance in the first place. Instead, from my discussions with insurance professionals, the two primary benefits are that being named as an additional insured may allow the association to invoke the contractor’s defense coverage in the event that the association is sued due to the contractor’s actions (which, frankly, happens all the time); and it ensures that the association will be notified if the contractor cancels its insurance coverage. Those are legitimate benefits, and they may very well be important to the association. Your point about small projects is certainly well taken, but keep in mind that even small projects can cause big damages to the building (a plumber screwing up a $300 repair can easily cause tens of thousands in damage to a property.)

I do think a rule requiring that all contractors working in the building to name the association as an additional insured on their liability policies would be valid and reasonable; but also, it would need to be properly promulgated if the association wants it to survive a court challenge.

Ryan Poliakoff, a partner at Backer Aboud Poliakoff & Foelster, LLP, is a Board Certified Specialist in condominium and planned development law. This column is dedicated to the memory of Gary Poliakoff, pioneer of the community association legal industry, tireless advocate, and author of treatises, books and hundreds of articles. Ryan Poliakoff and Gary Poliakoff are co-authors of New Neighborhoods—The Consumer’s Guide to Condominium, Co-Op and HOA Living. Email your questions to condocolumn@gmail.com. Please be sure to include your location.

Full Article

https://www.floridatoday.com/story/money/2021/06/13/poliakoff-condo-bylaws-regulate-boards-authority/5168005001/?fbclid=IwAR2v_AtUuZFOEOQgfwLspCSOdDodeFIzpNSJceAYMv_V_utQViLMdGnPt0E

Hurricane Preparedness Presented by Lee County Emergency Services

Hurricane Preparedness Presented by Lee County Emergency Services
When
Thursday, June 17, 2021 from 11:30 AM to 1:00 PM EDT
Where
3 Fisherman Seafood Restaurant
13021 North Cleveland Ave
Fort Myers, FL 33903
I can’t make it
THANKS TO OUR SPONSORS

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Lee County Emergency Management will host a Hurricane Preparedness luncheon to prepare the local Property Managers for the 2021 hurricane season.
Presented by Caitlyn Eck
Mrs. Eck is the Operations Section Chief/Manager for Lee County Emergency Management, managing a team of emergency managements as they respond to hazards in our county and throughout the State of Florida and the nation.
Caitlyn Eck
We will also be having a FREE Raffle.  
Don’t miss it!
DATE
Thursday, June 17, 2021

TIME
11:30am – 1:00pm
LOCATION
13021 North Cleveland Ave
Fort Myers, FL  33903
(Masks are optional per whatever the guests are comfortable with)
FEE
NARPM Members $20
Non-Members/Guests $30
Affiliates FREE
Lunch will be served
CONTACT
Genelle Bennett
I can’t make it
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Hurricane Season is Right Around the Corner

THE 2021 HURRICANE SEASON IS RIGHT
AROUND THE CORNER!
After record-breaking and disastrous 2020 hurricane season, many homeowners found themselves with severe wind and flood damage. Unfortunately, many did not have adequate insurance protection to cover the cost to repair or rebuild their homes.
The 2021 hurricane season is predicted to be overly active yet again with a prediction of 18 named storms, including eight hurricanes. If this prediction comes to pass this will be the SIXTH overactive season in a row.
The 2021 Hurricane Season is LESS THAN 30 DAYS AWAY and we want to make sure you are properly prepared and protected.
ALL 50 states have experienced flooding in the last 5 years.
It could take up to 30 days to bind flood protection.
Floods are not covered under most homeowners and
renters policies.
Once there is a named storm, carriers place binding restrictions on new policies and changing limits on existing policies.
25% of flood insurance claims are filed by people who are not living in high-risk areas.
Don’t miss this opportunity to stock up on your hurricane supplies during the 2021 Hurricane Sales Tax Holiday.
Click here to view a list of tax free items May 28th – June 3rd.
Acentria Insurance is a Foundation Risk Partners Company.

Legislation making it easier to remove problematic HOAs stalls in Tallahassee

TALLAHASSEE, Fla. — 9 Investigates why legislation that would make it easier for homeowners to remove problematic HOA board members has once again stalled in Tallahassee.

Over the last year and a half, Channel 9 investigative reporter Karla Ray has covered the turmoil inside Kissimmee’s Turnberry Reserve, where after a legal fight, a group of homeowners was able to successfully remove its board. Many thought their efforts would finally bring change at the state level, but we learned this push fails year after year.

READ: Turnberry Reserve whistleblower reflects on year of turmoil, changes

Lawmakers who brought forward this year’s bill aimed at easing the process do not expect it to reach a vote. That’s frustrating to homeowners who have been through the long, drawn-out process of removing an HOA board.

The feeling inside Turnberry Reserve is a lot different than a year ago.

“We’ve been working on the grounds, new vendors. It’s been a full-time job for all of us; there is a lot of work going into restoring the community to where it should be,” Turnberry homeowner and current board vice president Maria Napolitano said.

READ: Former Turnberry Reserve property manager arrested on fraud-related charges

Napolitano is part of a group that led the effort to overhaul the community’s Board of Directors, who had employed Management 35 Firm. That property management company, run by Sherry Raposo and her longtime boyfriend, ex-cop-turned-felon Joseph Conover, was removed last year. The two are facing charges related to Conover’s role as an unlicensed security officer, and Raposo is facing separate charges for alleged fraud involving HOA records.

“We have been able to at least get through most of the homeowner accounts and get those cleared up, and homeowners are happy to know that they have accurate balances on their accounts,” Napolitano said.

READ: Body camera video provides new evidence in case against ex-cop-turned security guard at Kissimmee community

Getting to this point was a struggle. Florida’s process for homeowners to recall a board has long been criticized, with homeowners often bounced around from local courts to the Department of Business and Professional Regulation to force recalls to be recognized.

Still, efforts to change it fail year after year in Tallahassee. In fact, legislation put forward this year by State Rep. Kristen Arrington and State Sen. Victor Torres, both of whom represent parts of Osceola County, is not making any progress. Even if it did, it would only change a small portion of state statute.

READ: Kissimmee property management company owner arrested, charged with fraud, impersonating officer

“It’s frustrating. I can tell you since we started this, we’ve gotten so many phone calls from communities across the state that are in similar situations, and they’re going through the same thing, coming out of pocket, fighting, going in the circle of court to the state, court to the state, with nobody to say, ‘This is our wheelhouse,’” Napolitano said.