Community Association Law - Condominiums

     The continued reporting concerning the causes of the collapse of the Champlain Towers South in Surfside, Florida, is placing a new spotlight on the complex principles associated with condominiums in south Florida. The outcome involving this local tragedy will be shaped by how we move forward.      For a baseline, let us talk about the most gripping engineering disaster in the United States before the catastrophe of the Champlain: the Hyatt collapse of the suspended hallways in Kansas City, Missouri hotel on July 17, 1981.  Not often mentioned, having happened 40 years ago, it is instructive as to what is now likely to unfold.  The Hyatt Company during that time had made a name that was associated with architectural wizardry in hotel design.  The K.C. Hyatt opened on July 1, 1980.  Within the multi-story atrium in the flagship hotel, there were suspended open walkways, held in place by steel hangar rods.  On  the evening of July 17, 1981, just a little over a year after the opening, during a particularly crowded event attend by 1600 people, the fourth-floor walkway collapsed  and in the cascade of additional damage, 114 people died and over 200 were injured. The Champlain is on the verge of exceeding that death toll.  Like the Champlain, it became the center of riveting media coverage with the last rescue being made nine hours after the initial structural failure and people losing limbs as they had to be cut from the wreckage.     Interestingly, the Champlain was finished at about the same time, in 1981.  It has been observed that in its forty-year history, it survived hurricanes.  Regardless, it was also reported that the building’s structural integrity was suspect, with the degradation of reinforced concrete support structures due to corrosion of the reinforcing steel, often referred to as “rebar”.  Mention has also been made of a cause related to the improper original installation of the rebar.  It will take some time to sort this out.  The Hyatt disaster was not fully explained until May 1982, almost a year later, in an article under the guidance of the National...

     As we begin to move past the Covid-19 Pandemic, and all of the significant hurdles that community associations faced as a result, one of the silver linings is the nearly universal acceptance of technology to conduct regular business. Specifically, with respect to community associations, many associations had no choice but to learn how to conduct its meetings virtually through Zoom or similar platforms. At the time, although the law did not specifically contemplate conducting meetings in such a way, most practitioners agreed that conducting both board and membership meetings virtually was acceptable. Some of that guidance was based upon the powers afforded to community associations under their respective emergency powers statutes of §718.1265 or §720.316, Florida Statutes. However, as we move beyond the declared state of emergency, and the likely expiration of statutory emergency powers, the question remains, may community associations continue to conduct meetings, both board and membership, virtually?             Section 718.112(2)(c), Florida Statutes, governs board of directors meetings for condominiums and provides, in pertinent part: “Meetings of the board of administration at which a quorum of the members is present are open to all unit owners. Members of the board of administration may use e-mail as a means of communication but may not cast a vote on an association matter via e-mail. A unit owner may tape record or videotape the meetings. The right to attend such meetings includes the right to speak at such meetings with reference to all designated agenda items.”             Additionally, §718.112(2)(b)5, Florida Statutes provides that: “A board or committee member’s participation in a meeting via telephone, real-time videoconferencing, or similar real-time electronic or video communication counts toward a quorum, and such member may vote as if physically present. A speaker must be used so that the conversation of such members may be heard by the board or committee members attending in person as well as by any unit owners present at a meeting.”             Likewise, §617.0820, Florida Statutes, which governs all not-for-profit corporations, allows the board, so long as the governing documents do not provide otherwise, to conduct the meeting through any means...

   BOCA RATON, Fla. - Efforts at the site of the Surfside condominium collapse have shifted from rescue to recovery after two weeks of searching for survivors. At the time of this article, 64 people have been recovered from the rubble. Another 76 remain unaccounted for. This tragedy has raised questions about the safety of high-rise condominium buildings, especially waterfront properties. While the cause of the collapse has not been determined and likely won't be for months, many experts are pointing fingers at the lack of inspection requirements for not catching concerning infrastructure issues sooner. In Miami-Dade County, building re-inspections are only due every 40 years. There is no mandate for building inspections or re-inspections across the state, meaning it's up to building owners and property management teams to conduct inspections when they decide it's necessary. Florida law firm Sachs Sax Caplan, known for leading in the field of condominium law, thinks the state should create guidelines and regulations for building construction and inspections. The firm wrote a letter to Governor Ron DeSantis' office, asking him to create an expert task force to establish statewide standards for building inspections and re-inspections to protect life and safety. "It could really create an opportunity to have one of the positive legacies of this terrible experience be one of saving lives where we create an opportunity to have safer buildings so people can sleep at night," said Louis Caplan, a founding partner at Sachs Sax Caplan and an expert in community association law. Caplan says the recommendation is for the state to put together a team of engineers, architects, contractors and other industry experts that could help create guidelines for the type of materials used in new construction, the frequency of inspections and disclosure requirements to unit buyers at the state level. Caplan says his firm has gotten confirmation that their letter was received by the governor's office, but has not gotten any feedback about their proposal. The last time Florida created statewide building code changes was after Hurricane Andrew destroyed more than 25,000 homes in 1992. The building codes mandated by the state...

    Statutory Update for Condominiums, Cooperatives and Homeowners Associations.     The following is a summary of recent changes to the Florida Statutes relating to Condominiums, Cooperatives and Homeowners Associations. It should be noted that this handout is a summary in nature and has been compiled to identify provisions which are of extra importance to our community association clients. On the other hand, because it is summary in nature, this handout should not be relied upon as a definitive guide for any Association. We suggest you review the actual statutory language or contact your Association attorney with specific questions. See the document below for the full update. Download PDF File Here  

    (CNN)An independent budget review warned the Champlain Towers South condo association that its financial reserves were critically underfunded in the face of urgently needed structural repairs a little over a year before the building collapsed, a document obtained by CNN shows.     The condo association only had 6.9% of the recommended level of money to complete repair and replacement projects and stay financially secure, according to a March 2020 report from Association Reserves, a company that analyzes housing association finances.    The report said that various components of the Surfside, Florida, building had zero years of "remaining useful life." Those included the entrance and garage -- where some experts believe concrete cracking may have contributed to last month's deadly collapse.     The study, which has not been previously reported, underscores how squabbling over assessments and underfunded reserves brought the repair situation at Champlain Towers South to a head.The association was projected to have a little over $706,000 in its reserves as of January 2021, according to the report, while Association Reserves recommended it stockpile nearly $10.3 million to account for necessary repairs. Based on that gap, the report found that the Champlain South board was at "high risk" of "special assessments & deferred maintenance." About a year after receiving the report, the board moved in April 2021 to levy a $15 million special assessment on condo owners to raise money needed for repairs. Robert Nordlund, the founder and CEO of Association Reserves, told CNN in an interview that about three out of 10 condo associations nationwide that his company reviews are at high risk, with less than 30% of the recommended reserves. He said the report showed the importance of condo associations stockpiling enough money to conduct regular repairs. "I just wish they had hired us five years or 10 years or 20 years prior," he said of the Champlain South condo board. The board had never previously received a reserve budget study, according to a separate PowerPoint presentation to residents from November 2020. The presentation alluded to the contentious debates among owners about the big-ticket items. "Complaining Or Shouting At Each Other Doesn't Work!"...

    Some might say it’s too soon. Too soon to talk politics and policy, when the search, rescue and recovery operations at the Surfside Champlain Towers South condominium collapse disaster are still tragically unfolding before our eyes. But this is exactly the time to discuss what we can do to guarantee this kind of disaster never happens again – when the unbearable grief is hardest to see, when the potential death toll is the hardest to comprehend.    Let’s be clear: 40-year-old buildings in the United States should never simply collapse. Period.    And we shouldn’t wait another moment before finding and embracing commonsense policies that make sure that is true.    In Florida, where our edifices are under constant attack – from salt, sand, water, storms, lightning, winds, surge, and more – the most important next step we can take is to make sure the same standards are being met in every community.    In that spirit, we have urged Gov. Ron DeSantis to immediately establish a statewide task force of industry experts to determine the highest and best standards and other policies to improve the safety of Florida’s high-rise buildings. That task force could begin work now, so that its findings and recommendations help guide Gov. DeSantis and the Legislature in enacting new state laws.    For those of us who have lived in Florida for many years, this approach feels familiar. In the wake of Hurricane Andrew, Florida adopted a uniform statewide Florida Building Code. The code mandated new buildings must be able to withstand hurricane-force winds and have storm shutters or storm-resistant windows. But what about older structures?    Requirements governing the frequency and thoroughness of inspections vary widely among Florida’s 67 counties and more than 400 cities and towns. Local governments often loudly resist legislation that takes away their authority by imposing statewide standards – but for safety issues like this one, such preemption is wholly appropriate.    We inspect the elevators inside these buildings every year – so shouldn’t we regularly assess the safety of the buildings themselves?    In the meantime, condo boards...

   Sachs Sax Caplan, P.L. founding partners, Louis Caplan and Peter S. Sachs are quoted in the news regarding the Surfside tragedy.  "People are saying, 'Am I safe?'" said founding partner Peter S. Sachs. "'What repairs do we need in my building? What have we done, what have we done?'" "We don't have any re-inspections required in Palm Beach County, or anywhere in the state, outside of Miami-Dade and Broward County," Sachs said. "If we could prevent this from happening again, that would be a wonderful legacy to this whole situation."  “Our hearts go out to all the victims of the Surfside collapse and their loved ones. This horrific tragedy is a red flag warning for all high-rise condominiums, apartments, and commercial buildings – not just those along the coast,” said Louis Caplan, a founding partner of Sachs Sax Caplan. “The State of Florida inspects everything from elevators to gas pumps to ensure public safety, and we should similarly have statewide standards for buildings where hundreds, or even thousands, of people live or work,” said Peter S. Sachs, a founding partner at the firm who helped draft Florida’s original condominium laws in the mid-1970s. Caplan said Florida cannot leave the safety of buildings to volunteer condominium association members who lack the professional expertise to judge a structure’s integrity. “Condominium boards are willing to spend whatever is necessary to protect their residents,” he said. “The focus should be not on what it costs, but rather what it saves – lives.” Click the links below to read the articles in full. WPTV Article: https://www.wptv.com/news/state/attorneys-call-for-task-force-following-surfside-collapse-to-recommend-reforms WFLX Article: https://www.wflx.com/2021/07/01/attorneys-call-task-force-following-surfside-collapse/ Florida Politics Article: https://floridapolitics.com/archives/438646-law-firm-calls-for-special-task-force-after-surfside-condo-disaster/ 

   BOCA RATON, Fla. – Governor Ron DeSantis should immediately empanel a special task force of experts to examine the tragic Surfside condominium building collapse and recommend reforms intended to ensure that nothing like it ever happens again. That is the recommendation of Sachs Sax Caplan, one of the nation’s most experienced and respected law firms in the area of condominium law.    The special task force would include engineers, architects, building contractors, and other industry experts to make recommendations to the Governor, Florida Legislature, and state regulatory agencies in advance of the January 2022 session of the Legislature. The focus should be to develop policy changes that help establish a uniform statewide standard for building inspections and re-inspections, with the overarching goal of protecting life and safety.  The group could also make specific suggestions to ensure that existing condominium buildings are safe across the state and that current and future structures maintain the highest safety standards and structural integrity.    “Our hearts go out to all the victims of the Surfside collapse and their loved ones. This horrific tragedy is a red flag warning for all high-rise condominiums, apartments, and commercial buildings – not just those along the coast,” said Louis Caplan, a founding partner of the law firm. “The condition of aging buildings is a statewide problem, and it demands careful examination by a panel of experts who can make comprehensive recommendations at the state level.”    Since the June 24 collapse of Champlain Towers South in the Miami-Dade County town of Surfside, scores of questions are being raised, including the cause of the collapse, how to determine if other condo/high-rise buildings are at risk, whether building inspection laws and standards should be uniform statewide, and what steps condo associations should take to ensure that their buildings are safe.    Caplan and fellow founding partner Peter S. Sachs are urging the Governor to act quickly to create the task force and appoint members with a relevant range of professional expertise. Areas to scrutinize could include building materials, the frequency of inspections, and new mandatory disclosure requirements between condo associations and...

       On March 9, 2020, Governor DeSantis issued Executive Order 20-52, declaring a statewide State of Emergency in response to COVID-19. This order triggered statutory emergency powers for community associations throughout the state. The Governor continued to issue Executive Orders extending the State of Emergency every 60 days, up until the most recent extension made on April 27, 2021. On June 26, 2021, when the Governor did not further extend the March 2020 order, the COVID-19 State of Emergency expired.        Although the COVID-19 State of Emergency has expired, the COVID pandemic remains, and Florida continues to experience new cases, including new infections from COVID variants. In light of this, we believe the statutory emergency powers may continue to be relied upon for a reasonable period of time to continue employing reasonable measures association boards believe are necessary to provide for the health, safety and welfare of residents and their guests. For example, associations may continue to require use of face masks in common areas based on current CDC guidelines. Additionally, a graduated reopening of amenities, such as restricted capacities and/or operating hours, may be appropriate in balancing the safety of residents with the desire to enjoy all of the amenities in full, pre-pandemic, fashion. Each association will have its own unique set of circumstances and needs shaping which measures individual boards believe are reasonable and appropriate for their association.        The governing documents for an association will further address the extent of a board’s authority to administer and operate the association and to provide for the health, safety and welfare of the residents. If your board is struggling with the transition from the state of emergency and authority provided by the emergency powers, you should consult your association attorney. Michael UngerbuehlerSACHS SAX CAPLAN, P.L.

        On Thursday, June 24, 2021 around 1:30 a.m. officials received word of a building collapse in Surfside, Florida. Our thoughts and prayers go out to the residents affected by the tragedy at Champlain Towers South in Surfside. The condominium building has 136 units; approximately 55 units collapsed, and the entire building is now uninhabitable. The search, rescue and reunification processes are ongoing.         “Buildings just don’t fall down”, said Surfside Mayor Charles Burkett. He’s right, they don’t, which may lead to many other associations questioning their buildings’ structural safety and integrity. While it’s unclear what happened in Surfside, this tragic event underscores the necessity for associations serving multi-story buildings to be proactive and look at properties and their certifications to ensure this type of situation does not happen again.         In both Broward and Miami-Dade counties, there is a 40-year recertification process for real estate properties that are over 40 years old. Miami-Dade has had this process in place since the mid 1970’s, and Broward followed suit in 2005. The program calls for structural and electrical inspections for buildings 40 years old or older and every ten years thereafter. There are some exemptions depending on square footage, occupancy amount, farming buildings, as well as buildings on Indian Reservations.  While Palm Beach county does not have the same requirements for older buildings, it is highly recommended that buildings 40 years and older take these same precautions and follow these protocols.         Champlain Towers was built in 1981, making it a 40-year old building this year. Units in the building are typically listed between $600,000 and $710,000. This was a luxury condo building with many amenities and luxurious features. Surfside Commissioner Eliana Salzhauer said the building was beginning its 40-year recertification process and the roof was being redone. It is unknown if the construction activity contributed to the collapse.         40 years is a long time for a building to be around, especially when in close proximity to the ocean, and given the constant and evolving changes...

        It is often thought that estate planning is just for older people who are more established in their careers and lives and have more to plan for, when, that could not be further from the truth. From individuals planning for themselves, to married couples with young children, to retired adults, everyone can use some sort of planning.  This post will focus on estate planning for individuals or couples with a minor child and address some of the topics that they should be consider when planning for their child.           If you ask anyone with a minor child what their biggest concern is should they as parents, pass away, and most will answer that their largest concern is making sure their child is well taken care of. They generally do not mean this in the financial sense, but more in the sense that they will be raised in a good home and provided with the proper support system to help them grow. Here are a few things you should consider when planning for your minor child.         The first question you want to ask yourself, if you pass away, who would you want to raise your child?  That person or people need to be named in your Last Will and Testament. If your preference is not outlined in your documents, there is a chance that a legal battle will ensue to determine the best Guardian for your child(ren). The preference you have indicated in your Last Will is generally honored by the courts.         When considering who to name as Guardian, it is worthwhile to consider, the proposed Guardian’s religious and social values, the Guardian’s other children, where the Guardian lives and the arrangements available for your child.         Once you have decided who would be best suited to act as Guardian for your child, you need to decide how your assets should be distributed.  Without a plan, at your death, your assets would be given to the Guardian of your minor child and held for your child...

        New changes to the Florida Statutes governing community associations will become effective July 1, 2021, pursuant to multiple bills passed during the most recent legislative session.  Among these bills, SB 56 is particularly directed to community associations’ collection of maintenance fees and assessments.  Board members, property managers, and any community association staff involved in assessment collection must be familiar with these new provisions so as not to jeopardize or delay the ability of their associations to collect assessments from owners who have become delinquent.         Perhaps the most critical legislative change contained in SB 56 likely to affect all associations at one time or another is a new requirement that associations send owners who have become delinquent a sort of “courtesy” notice advising of their delinquency prior to requiring payment of any attorney fees for collection to be paid by the owner.  Currently, there is no actual statutory requirement that an association first notify an owner of their delinquency before sending the account to the attorney (even though many associations already routinely do so.)           However, SB 56 amends the Florida Statutes governing community association “pre-lien” collection practices to now require associations to first send a delinquent owner a “Notice of Late Assessment,” specifying the amount due on the owner’s account and providing the owner 30 days to pay that amount before any “further collection action” (i.e., attorney collection efforts) and attorney fees for collection are charged to the owner.  Form language for these notices is included in the legislation, and, unless the association substantially follows this language, subsequent collection efforts by the association attorney are likely to be negatively impacted.  Further, the legislation creates a rebuttable presumption that the “courtesy” notice was mailed if a board member, officer, agent, or licensed community association manager “provides a sworn affidavit attesting to such mailing.”  This means that associations will need to have forms prepared and ready attesting that the notice was mailed to each owner it sends to the association attorney for collection.         Secondly, the legislation prohibits...

        Numerous significant changes to Florida Statutes governing community associations (condominiums, cooperative and homeowners associations) will take effect July 1, 2021, presuming approval and signature by Governor Desantis. These changes are primarily contained in two bills already passed by both houses of the Legislature—SB 56 and SB 630.  The purpose of this column is to provide a brief overview of some of the most impactful changes, although there are many others not addressed here.  A more comprehensive and thorough summary of the new legislation will be contained in our upcoming 2021 Legal Update.           First, SB 56 imposes several new statutory requirements on association delinquent maintenance fees/assessments collection practices—something which, unfortunately, almost all associations have had to deal with at one time or another.  Specifically, the legislation amends the Florida Statutes governing “pre-lien” collection requirements and now requires community associations, before requiring owners to pay any attorneys fees for collection, to first deliver to the owner a “Notice of Late Assessment” allowing the delinquent owner an opportunity to pay before attorney fees for collection are assessed.  An affidavit attesting to delivery of this new notice will now need to be created and kept in owner account files to demonstrate compliance with the new statute.  In addition, SB 56 requires an association intending to change its delivery method for invoices/statements of account to owners to first deliver a notice of the change to each owner at least 30 days in advance. Further, they must receive an affirmative acknowledgement from the owner that they understand the change.  These affirmative acknowledgments will now be required to be maintained in the association’s official records.  Finally, SB 56 increases the statutory time period that pre-lien and pre-foreclosure notices must be delivered by condominium associations and cooperative associations to 45 days (currently 30 days), which conforms with the time periods already required for homeowners’ associations.         In contrast to the specific focus of SB 56 on collection practices, at more than 100 pages long, SB 630 contains a much more substantial and comprehensive set of changes to a variety of statutory...

            On Monday, May 3rd, Governor DeSantis issued Executive Orders 21-101 & 21-102 immediately suspending and, as of July 1st, invalidating all local remaining COVID-related emergency orders, statewide. Importantly, the Governor did not cancel or end the State of Emergency, which as of this writing is scheduled to continue through June 26, 2021. However, the latest order extending the State of Emergency provides that Florida should prepare to resume non-emergency operations as of June 27th.              As a result, we are seeing a split in reaction to these latest events. On the one hand, some communities are eager to fully reopen and return to pre-COVID operations. On the other hand, some communities are concerned that they should maintain restrictions on the use of common elements, areas, and amenities, as the COVID pandemic has not ended. With this column, we aim to provide some general guidance in how to address each side’s concerns.             For those communities comfortable with reopening, we recommend a measured approach, taking into consideration the CDCs’ ongoing guidelines and protocols. Recently enacted Section 768.38, Florida Statutes, provides corporate immunity against COVID-related claims where there has been a good faith effort to substantially comply with government-issued health standards or guidance. Although the County’s COVID orders were suspended, the CDC’s COVID guidelines and protocols remain in effect. As such, we believe the reopening of amenities and/or lifting of other COVID-related restrictions should, as appropriate and practical, still take into consideration the CDC’s guidelines in order to help minimize potential COVID-related claims. For example, for amenities that are reopened, we recommend reducing seating and capacity limits; maintaining distance between tables; and limiting group sizes.             For those communities that believe it is necessary to keep amenities closed or with limited hours of operation, we believe both homeowners and condominium associations may continue to do so, as the statutory emergency powers remain in effect, and, we believe, will continue for a reasonable time following the end of the State of Emergency. If a...

            Boca Raton, Florida - The Palm Beach County Sports Commission has appointed Larry Schner as member of the Board of Directors. The Palm Beach County Sports Commission is a private, not-for-profit organization contracted by Palm Beach County to promote and market the County as a sports and sports tourism destination. The Commission brings sporting events and activities to the County, enhances economic impact, stimulates bed tax revenues (with a focus on the off-season), and maximizes utilization of County facilities.             Larry is currently a partner at Sachs Sax Caplan, P.L. in Boca Raton, Florida. Larry joined Sachs Sax Caplan on December 1, 2016 after maintaining his own practice of Larry E. Schner, P.A. for twenty-five years in Boca Raton. Mr. Schner practices in the area of Community Associations Law, representing condominium and homeowners throughout Broward and Palm Beach County. He has extensive experience in this area and has represented hundreds of associations since his admission into the Florida Bar in 1985.             Sachs Sax Caplan is a full-service Florida law firm. Practice areas include Community Association Law, Estate Planning & Probate Litigation, Commercial Litigation & Appeals, Real Estate, Corporate & Land Use, and Governmental Law & Lobbying.             Larry is very eager to serve on the board of directors for the commission. He is excited to assist in planning and organizing events in the county for professional and amateur athletes. He hopes it will help improve and support the commissions goal of increasing tourism especially now that there is a better handle on the pandemic.               Larry has always had an affinity for sports. He played college basketball at Northwestern University. Decades ago, he helped put together the first exhibition game with the Miami Heat and the Seattle Supersonics that took place at FAU. Previously, he has been President of the Blue and White Club at Lynn University as well as the Owl Club at FAU. The love of sports has been passed down...