Community Association Law - Condominiums

          The COVID-19 crisis has caused many of our Clients to raise questions pertaining to their own estate planning, particularly documents that family members may need in the event that a loved one becomes hospitalized. Given this unprecedented time, we encourage all of our clients to consider the following: A. Are your estate planning documents that address legal and medical matters while you are still alive up to date, consistent with your wishes, and readily available or accessible? Estate Planning Documents that are effective immediately that we strongly recommend for Clients: Durable Power of Attorney A Durable Power of Attorney is a written document that appoints an “Agent” to manage your legal and financial affairs, and it gives the Agent legal authority over your assets and other legal rights. The Durable Power of Attorney becomes effective immediately upon signing, and it continues to be valid and effective if you were to become incapacitated. You should only appoint somebody that you completely trust. A Durable Power of Attorney often helps to avoid guardianship proceedings if a person becomes incapacitated, however the power granted by the document would terminate upon death. We recommend that Clients should review their Durable Power of Attorney to insure they are comfortable with the Agent(s) designated as well as the scope of the power given to said Agent(s). Your Agent should also be aware of the document and know where a copy is located. Designation of Healthcare Surrogate Also known as a Healthcare Power of Attorney, a Designation of Healthcare Surrogate nominates an individual (or multiple individuals) to make medical decisions on your behalf. It specifies the types of treatments that the health care surrogate is allowed to consent to, and it names alternate health care surrogates if your first choice is unable or unwilling to serve as your surrogate. A Designation of Healthcare Surrogate is effective immediately, however, when you are awake and have mental capacity, then you maintain complete control of all your own healthcare decisions. We strongly recommend to all our Clients to execute this document and to discuss their respective...

In the midst of this global crisis, we are pleased to announce confirmation that Florida condominium and homeowners’ associations, in addition to small businesses and other not for profit corporations, are eligible to receive Disaster Loan Assistance through the U.S. Small Business Administration. These loans may be used to pay fixed debts, payroll, accounts payable and other bills that can’t be paid because of the impact of the Coronavirus on your associations and businesses. The SBA offers loan terms of up to thirty years, with interest rates for not for profit corporations at 2.75% and for small businesses at 3.75%. The attorneys and staff of Sachs Sax Caplan, P.L. stand ready, willing, and able to assist Florida condominium and homeowners’ associations, Florida not for profit corporations, and Florida small businesses in compiling and filing the applications and supporting documentation necessary to secure such assistance.

The purpose of this article is to try to bring together the possible loans, grants and other relief for small businesses throughout Palm Beach County. We are trying to bring clarity to what has become a blizzard of forms, filings and verifications. So, this is scratching of the surface, but we must all start somewhere. I. SBA Economic Injury Disaster Loan Program As part of its disaster assistance program, and unlocked under the Stafford Act, the SBA is providing low-interest working capital loans of up to $2 million to small businesses and nonprofits affected by the coronavirus in presidential and SBA-declared disaster areas. Florida is now a disaster area. These loans may be used to pay fixed debts, payroll, accounts payable and other bills that cannot be paid because of the disaster’s impact. The interest rate is 3.75% for small businesses. Business with credit available elsewhere are not eligible . I think it is fair to say that credit is most likely not available to any restaurant, bar, hotel or other tourist oriented business in Palm Beach County. However, this requires further research. There are loans available to non-profits. An interesting questions is whether this includes homeowners and condominium associations so important to our area. This will require further research. The interest rate for non-profits is 2.75%. These loans offer long-term repayments plans, up to a maximum of 30 years. Terms are determined on a case-by-case basis. Application may be made online. You will need to supply required supporting documentation that could include the business’s most recent tax returns, a personal financial statement and a schedule of liabilities that lists all your current debts. There is a help line: SBA Disaster Assistance Customer Service Center at 1-800-659-2955 (TTY: 1-800-877-8339) but expect long delays. For additional information, email is: This email address is being protected from spambots. You need JavaScript enabled to view it.. II. The Florida Small Business Emergency Bridge Loan Program There is currently available to small business owners located in all Florida that experienced economic damage as a result of COVID-1 a small business emergency bridge loan. All Florida counties statewide per Executive Order 20-52. These short-term, interest-free working capital loans are intended...

Florida’s governor has declared a state of emergency due to novel coronavirus. This has triggered the availability of statutory emergency powers to condominium associations and homeowners’ associations. Although the applicable statutory sections were clearly written with natural disasters in mind, the majority view of association law practitioners appears to be that emergency powers are now available. However, because condominium associations and homeowners’ associations are unaccustomed to utilizing emergency powers and, in many cases, are unfamiliar with them, many communities have been slow to avail themselves of benefits of the use of such powers. Nevertheless, emergency powers are expressly limited to times when the use of such powers are “reasonably necessary to protect the health, safety, and welfare” of residents and may not be abused. If an association has any questions about the use of emergency powers, it is recommended to contact legal counsel and obtain advice. As the state of emergency is likely to continue for some time, associations will likely have ample opportunity to familiarize themselves with available emergency powers and to make use of them.

Business interruption insurance, like all coverage, is technical in nature. It is intended to cover interruption from certain perils and in most instances, it addresses physical damage to a property or business which locks you out or makes it impossible for you conduct the business. Unfortunately, the SARS outbreak from 2002/2003 put the insurance companies on notice about the possibility of an interruption to business based on a pandemic and infectious disease outbreaks as a cause were often exempted from coverage in most generally offered business insurance policies. However, all may not be lost. You will have to examine your policy carefully to see if there is coverage for interruption by civil or military authority. Thus, you would argue that it was not the coronavirus that caused the interruption, but the federal or state executive order to close your business. However, there is nothing you can take to the bank concerning your policy’s coverage on quick review. The policy must be studied. It may have limits on the length of coverage, sometimes as little as 14 days. It will undoubtedly have limits as to a Dollar amount. There may be waiting periods before a claim can be made. It is time to take out your insurance policies and have them carefully considered. If you believe you have a claim, and need some assistance with the highly technical language, please feel free to contact us.

By Jeffrey Wolfe, Esq., Attorney at Sachs Sax Caplan, P.L. As the impact of the coronavirus (COVID-19) pandemic expands, we are receiving an increasing number of calls from clients as to whether COVID-19 provides an excuse for nonperformance under a contract (mostly in the context of purchase agreement, leases and business contracts). As is the case of most legal questions, there is no general answer, it depends upon the facts. Some contracts have a “force majeure” clause which excuses a party’s performance for certain events that are not within a party’s control, such as Acts of God, terrorism, and war. Whether COID-19 qualifies as a force majeure event will depend on the wording in the agreement, as well as the surrounding facts. Parties need to be careful not to declare force majeure if their agreement does not contractually entitle them to do so as such action could constitute a breach of contract. Please contact our firm with any questions or concerns. We would be happy to assist you in determining whether COIVD-19 qualifies as a force majeure event under your agreement.

New 4th DCA decision discussing the proper application of the “Business Judgment Rule” in community associations, and involving our client, Homeland Property Owners Association, Inc.

By: Lindsay E. Raphael, Esq., Senior Counsel, Sachs Sax Caplan, P.L. The heart of hurricane season is quickly approaching---the full season runs from June 1 to November 30th. Year after year we all hear news reports about how this hurricane season is going to be the most active yet and then if we are lucky, we have a relatively quiet season and if we are really lucky, South Florida is temporarily spared. The problem is people become immune to hearing about how important it is to be prepared and then they are annoyed because after preparing for a hurricane, the hurricane may turn and not hit our area. Complacency is dangerous. It is better to be prepared and spared then to be unprepared and hit with a hurricane (or a tropical storm). The association’s board of directors is responsible for making sure the association’s property is prepared for a hurricane, owners have the responsibility to make sure their own property is prepared and that no loose objects are left outside. While every association has some exposure to a hurricane, disaster planning has the potential and probability of saving lives and minimizing damage. Below are 8 tips to help you prepare for a hurricane: Insurance Policies: Make sure the association’s insurance policies (including windstorm and flood insurance) are in place prior to the start of hurricane season. Secure copies of all current insurance policies along with the contact information of the association’s insurance companies and agents so that in the event the building sustains damage the association has access to this important paperwork.Disaster Plan: The association should have a disaster plan that is ready to be implemented if necessary.Safeguarding Important Documents; Make Copies of your Business Records: The documents that should be safeguarded and copied include, without limitation, the governing documents, insurance policies, bank account numbers, statements, checks, assessment payment history, minutes, approvals, unit owner roster, emergency contact information, vendor information lists, etc. This information should be kept in a place the association can retrieve after the storm.Backup Computer Files: Be sure that computer files essential to running the HOA or condominium...

Published in the July 10 issue of the New York Law Journal, board certified attorney Daniel Kaskel's article "If You Love Me Let Me Go: Tips on Establishing Florida Domicile," highlights challenges, rewards and nuances of establishing residency in the state of Florida for high net worth clients who currently reside in high-taxed states. Mr. Kaskel chairs the Real Estate, Corporate, Land Use & Financial Services Group and holds board certifications in Real Estate Law and Condominium & Planned Development Law. Please visit Mr. Kaskel's bio page for more information on his legal career.

Three SSC attorneys are among the first in the state to become board certified by the Florida Bar in Condominium and Planned Development Law. This new field was established by the Florida Bar in 2016 and the first certifications were issued this summer. Earning the new designation are Founding Partner and Chairman Emeritus, Peter S. Sachs, Managing Partner Spencer M. Sax and Principal Edward S. Hammel. Board certification is the Florida Bar’s highest evaluation of competency and cognized attorneys with special knowledge, skills and proficiency in a specific type of law.

Lou Caplan and Steve Rappaport taught the 2018 Legal Update for managers, in West Palm Beach on Tuesday afternoon. They were invited speakers at an Association related trade show. The firm always appreciates these opportunities as it allows our attorneys to connect with managers, many of whom they work with assisting association clients with their needs. Sachs Sax Caplan, P.L. offers many approved courses for managers and board members alike.

Hurricane Irma swept the State of Florida from Key West to Jacksonville. With offices in both Boca Raton, Florida and Tallahassee, Florida, we felt the brunt of the storm in both parts of the State. For our clients, we know that the laws surrounding natural disasters and their aftermaths will become of increasing importance to Floridians. As a firm with many residential association clients, we have been fielding questions in the wake of the hurricane about repair responsibilities in multi-family dwellings. Note that the Condominium Act provides that any portion of the condominium property which must be insured by the association and which is damaged by an insurable event is to be reconstructed, repaired, or replaced as necessary by the association as a common expense. In contrast, in the absence of an insurable event, either the association or unit owners shall be responsible for reconstruction, repair, or replacement as determined by the maintenance provisions of the declaration or bylaws. Accordingly, when determining who is responsible for making what repairs, there is a subtle but very important legal distinction between ordinary maintenance (or lack thereof) and damage arising from casualty. Condominium associations and condominium unit owners are encouraged to obtain legal advice if they have any questions before making repair commitments. Feel free to call us should the need arise so we can help you discern what your obligations may be in connection with needed repairs.

Now that Hurricane Irma has passed, interrupting commerce from Key West, Florida to Jacksonville, Florida, it is now time to truly read and concentrate on “boilerplate” in your contracts. Yes, ‘boilerplate,” that is, all those provisions where the instructions are to just “get it off the computer.” Truly, when you work with a knowledgeable attorney, he knows that it is more important than that. The importance of “boilerplate” is now front and center because of this major storm. Within “boilerplate” is a clause often referred to as an “Acts of God” clause, or for the agnostics among you, the “Force Majeure” clause. “Acts of God” and “Force Majeure” clauses pop up for the most part in two situations, construction contracts and leases. In construction contracts, it is most frequently litigated in connection with the “2 year completion of construction” rule which is a part of the Interstate Land Sales Full Disclosure Act ("ILSA"), 15 U.S.C. § 1701 et seq. Developers are looking to extend the period of completion as a result of an event beyond their control. In leases, the clause gives the landlord the ability to kick a tenant out of a lengthy lease term that may have benefited the tenant because the property is rendered un-tenantable. But, also, closings are often extended by such clauses and contract performance excused in numerous other types of scenarios. Here is the point, if you allow a good draftsman some time to discuss “boilerplate” with you, we can draft a clause favoring one party of over the other. For example, we can change that clause that allows the landlord to escape his obligation to rebuild the premises following a casualty. In drawing leases, we have two completely different clauses: (i) one favoring the tenant (landlord MUST rebuild and do it quickly) , and (ii) one favoring the landlord (landlord may or may not rebuild and may ask the tenant to leave). It can be the difference between financial survival or financial death for either party. Do not wait for the next storm. Let us go over your lease or contract with you or...

Legislative Update 2017

House Bill 7109 permanently lowers the sales tax charged on commercial leases from 6 percent to 5.8 percent. The state currently levies the tax on the total rent or license fee charged for renting any real property. Residences are exempt from this tax. Florida is the only state in the country to impose this type of tax on businesses. Therefore, it unfairly disadvantages Florida business owners. Although this is a small reduction it is the step in the right direction. Earlier this session, the Senate Committee on Finance and Tax passed Senate Bill 378, by Senate President Pro Tempore Anitere Flores, R-Miami, Monroe, to lower the business rent tax.