Under Florida law, a prenuptial agreement is a contract signed between two parties who intend to get married, which defines their respective rights and obligations during the marriage, or at a later time if the marriage is dissolved. Prenuptial agreements can be used to attempt to avoid expensive and lengthy legal battles that sometimes occur when a marriage ends. They can also be used to avoid equitable distribution of their assets by a court during a divorce by instead instructing the court on how assets should be divided between the parties. Prenuptial agreements can address issues such as: Distribution of assetsDivision of propertyPromises made between partiesHow (or whether) each party will be supported after a divorce It should be noted that a prenuptial agreement may not include waivers of provisions regarding parental responsibility, child support, or time-sharing rights. Prenuptial agreements are enforceable in Florida if in writing and if all provisions are met, especially the full disclosure of assets and liabilities to each party. Because it is important to take all necessary steps to ensure the validity of a prenuptial agreement and avoid later claims of fraud or coercion, it is important for each party entering into a prenuptial agreement to have an attorney who can inform them of their rights and prepare or review any proposed agreement. Because prenuptial agreements are often non-modifiable and will not be invalidated simply because they are more favorable to one side than another, it is critical to seek the advice of an experienced attorney before signing a prenuptial agreement. Postnuptial Agreement A postnuptial agreement is similar to a prenuptial agreement, except that parties sign it after they are already married. Postnuptial agreements may be created without anticipation of divorce and are used to set forth the rights of parties during the marriage or in the event of death. They can also be created when a married couple anticipates divorce and wishes to amicably distribute their assets – this type of agreement is also called a separation agreement. As with prenuptial agreements, postnuptial agreements must be in writing and should be reviewed by an experienced...

The Florida Department of Health on Tuesday fined Leon County $3.5 million for its vaccine mandates for county employees. It comes at a time when many businesses are increasingly requiring this for their workers, or get let go. David Smith, a United States Air Force Veteran of Royal Palm Beach, tells CBS12 News it happened to him. “They said get the vaccine card, or nothing,” Smith said inside his home Tuesday evening. Smith, a father of two, completed several tours in Afghanistan in the mid to late 2000s. Yet he faced a tough battle when he said his boss over at a pest control company in Riviera Beach required his over 100 employees to get vaccinated by October 1. According to Smith, he wasn’t given the option to do a COVID [test] every week.  The 35-year-year old had COVID-19 months ago and even talked to his doctor about this before making a decision. “They told me there is no added pros to me getting the vaccine, since I already had it. They advised me not to get it,” Smith said. “Ultimately, I believe I was the only one that was let go because of it.” It was a tough decision for Smith after four long years with the company, but he believes in the right to choose. “I really grew into the position I was in and it just came to this one thing. That was such a hard line," Smith said. He was concerned that if somebody at his office was to get it, or one of us got it, that they could come back at him.” The guidance under the U.S. Equal Employment Opportunity Commission confirms employers can require vaccinations, but there are limited exceptions for religious or medical reasons. While vaccine passports are banned in the state of Florida, Palm Beach County attorney Peter Sachs said showing proof, at this time, applies to employees. “If its condition of employment as of the date of certain, the employee would have to show evidence that he got or she got the vaccine,” said attorney Peter Sachs of Sachs Sax & Caplan Law Firm in Boca Raton....

An operating agreement is one of the most important documents you can create in connection with the formation of a limited liability company (LLC). An operating agreement is an agreement between the members of the LLC setting forth the procedures governing the operation and management of the LLC, and setting forth the members’ respective interest in the LLC. (In principle, it accomplishes what a shareholder’s agreement and bylaws does for a corporation, and a partnership agreement for a partnership.) An operating agreement allows the members to: (i) verify their percentage ownership in the LLC, (ii) document their initial capital contributions to the LLC, (iii) determine how profits and losses will be split among the members, (iv) establish voting rights of the members, (v) define the powers and duties of the managers and members, and (vi) provide for restrictions on transfer of membership interests in the LLC. State law provides “default provisions” in case members fail to properly structure the LLC through an operating agreement. These default provisions often provide unexpected results to the members, which may vary significantly from the initial intent and expectations of the members. As a result, the importance of an operating agreement cannot be overstated. An operating agreement will add structure and certainty among the members regarding the operations of the LLC. Depending upon your circumstances, the operating agreement may be drafted to include more advanced provisions such as: (i) different classes of membership interests, (ii) capital calls and mandatory loans, (iii) buy-sell rules, and (iv) deadlock resolution. The creation of an operating agreement for a single-member LLC is just as crucial as in a multi-member LLC. In order to maintain an LLC’s liability protection, the member needs to keep his/her personal affairs separate from the LLC’s affairs (which can sometimes be made more difficult when there is only one member). An operating agreement for a single-member LLC establishes the formality of the LLC and provides an important element of the LLC’s complying with corporate formalities, separate and distinct from its owner. If an LLC ever plans on obtaining a loan, the lender will almost always ask...

Peter S. Sachs, a Founding Partner and Chairman Emeritus of Sachs Sax Caplan P.L. answers questions regarding how vaccine mandates could potentially impact condo associations. “I live in a senior community. Can I ask employees of the community about their vaccination status? Obviously, we prefer to have vaccinated employees at work here, in the clubhouse, and elsewhere. Is it legal for us to ask or require this of the management company?”— Paul, Boynton Beach “Don’t take this upon yourself; speak to your management company. It would not be appropriate for a resident to inquire of an employee directly regarding vaccination status. It is a private matter. However, the board of the association or community may require the management company to certify that all of its employees on-site will be vaccinated as of a date certain as a matter of policy and contract between the association and the management company. The community at large may then rely upon the certification of their vendor, the management company.” “I have organized a luncheon for leaders of the hospitality industry at a hotel in Fort Lauderdale on Oct. 8. On the official invitation, I added a clause as follows: “COVID-19: For the safety of all attendees, vaccination cards will be required.” There will be no more than 52 attendees due to the capacity of the dining room in the hotel. By asking for vaccination cards, am I facing legal issues because of Gov. Ron DeSantis’s new law? Could the hotel be held liable in addition to myself?” — Ron Stevens, Boca Raton “You can’t ask people for their vaccination cards because of the new Florida law that prevents businesses, schools and government agencies from requiring people to show documentation certifying COVID-19 vaccinations before gaining entry. The only exception is health care facilities. If you require the vaccine card as a condition of entry, you run the risk of being fined $5,000, and the hotel also could face a penalty. The hotel may have exposure. The reader may want to have the event catered at a private home rather than involve the hotel, which likely would have concerns if it knew...

With greater attention being given to building safety, the City of Boca Raton has implemented a Building Recertification Inspection Program. The City Council passed Ordinance 5589 at its August 24, 2021 meeting. The new ordinance will require inspection and recertification of buildings that are 30 years and older. Additional recertification will be required every 10 years. This requirement applies to buildings that are greater than three stories in height and to buildings that are greater than 5,000 square feet with an occupancy of greater than 500 persons. Single-family homes and duplexes are exempted. 242 buildings currently meet the criteria for the recertification requirement, and the City will begin inspections of these buildings on a proposed four-year schedule with the buildings divided into four zones based on geographic location. The recertification process will include the submittal of an engineering/inspection report, review by the City’s Building Official, and implementation of a Repair Plan as required. Impacted buildings will be notified by the City at least a year before the deadline. Should you wish to discuss the impact of the foregoing on your building, please do not hesitate to call us.

SSC attorneys Michael Chapnick and Steve Geller, who also serves as Broward County Mayor, discuss the final proposed recommendations by the Broward Committee on Building Safety.

    I’m Steve Geller, and I’m Of-Counsel to Sachs Sax Caplan.  I’m an “A-V Preeminent” Lawyer, listed in both “Florida’s Best Lawyers”, “South Florida Super Lawyers”, etc.  I’ve been practicing law for 39 years, and when I’m not practicing law, I’m also a politician.  I served in the Florida House and Senate for 20 years, including serving as the Senate Minority (Democratic) Leader, and I’m currently a Broward County Commissioner and Mayor of Broward County.     As Mayor, after the collapse of the Champlain Towers South Condominium in Miami-Dade County, I created and appointed the “Broward County Condominium Structural Issues Committee”, to study the issues involving Condominium living and safety.  This Committee consisted of 16 members.  I served as Chair.  Other members included two State Senators, two State Representatives, two Mayors, three City Commissioners, representatives of condominium associations, engineers, attorneys, (including SSC’s own Michael Chapnick, Board Certified in Condominium and Planned Development Law), etc.  All three City Commissioners were experts in Condominium issues.  The Committee met for over 26 hours, and heard expert testimony from 12 speakers, including engineers, attorneys, insurance experts, an environmental expert testifying on the impact of sea level rise on condominiums, etc.  The Committee also took public testimony.     The Committee spent hours debating issues and reached recommendations that I wanted to share with you.     There was extensive testimony about the inherent tension which sometimes exist between unit owners and a Condominium Board relating to expenditures.  Many condominium residents, particularly seniors, don’t want to or feel that they can’t pay for proper maintenance or for reserves, which are moneys set aside for large future expenditures.  For example, if you know that you’re going to need a new roof in 15 years, you should be setting aside one fifteenth of that money each year.  Florida law requires that this money be set aside, but also permits the unit owners to waive the reserves by a majority vote. There was extensive testimony that better maintenance would be far more cost effective than having to replace structural support later.  The Committee recommended that in order to...

   Peter S. Sachs explains potential exemptions to the President's vaccine mandate for businesses. Watch the video from WPTV below.  Source: https://www.wptv.com/coronavirus/president-biden-unveils-his-new-strategy-to-combat-covid 

   As we have previously discussed, during the COVID-19 pandemic, the Federal Government issued moratoriums on residential evictions as well as foreclosures. These were enacted in order to protect the public health and prevent an overwhelming number of people becoming homeless, or to protect those struggling with the affects of the pandemic. Earlier this month, the foreclosure moratorium, after several renewals, lapsed. However, the Federal Government has, once again, extended the moratorium on residential evictions. However, in so doing, they have added some limitations to its applicability.    The order says “a landowner, owner of a residential property, or other person with a legal right to pursue eviction or possessory action, shall not evict any covered person from any residential property in any county or U.S. territory while the county or territory is experiencing substantial or high levels of community transmission of SARS-CoV-2.” The order goes on to define a covered person, in pertinent part, as a tenant or other person in possession who provides their landlord with a declaration under the penalty of perjury that (i) the individual has used his best efforts to obtain governmental assistance for rental or housing; (ii) they earned less than $99,000 (or $198,000 if filing jointly) in 2020, or expects to learn less in 2021; (iii) the individual is unable to pay rent due to loss of income; (iv) the individual is using best efforts to make timely partial payments as best they can; (v) eviction would render the individual homeless; and (vi) the individual lives in an area with substantial or high rates of community transmission. Again, it is worth noting that the moratorium on foreclosures has lapsed, and thus foreclosures are legally permitted to proceed. Should you need to discuss the impact of the foregoing on your Association, please do not hesitate to call us. Daniel Weber, Esq.

            Florida Statute 718.303, which governs condominium associations, is titled “Obligations of owners and occupants; remedies.” Section 718.303(1) grants condominium associations and unit owners the power to file certain actions against: (1) an association; (2) a unit owner; (3) directors; and/or (4) tenants or other invitees occupying a unit. Until June 30, 2021, Section 718.303(1) applied to “[a]ctions for damages or for injunctive relief, or both, for failure to comply” with Chapter 718, Florida Statutes, and/or a condominium’s governing documents. However, effective July 1, 2021, the Florida Legislature amended Section 718.303(1), by replacing “[a]ctions for damages or for injunctive relief” with the broader language of actions “at law or in equity.”             Under Florida law, each party is responsible for their own attorneys’ fees absent a contract or statute stating otherwise. Importantly, Section 718.303(1) provides that the prevailing party in such actions is entitled to recover attorney’s fees from the non-prevailing party. Thus, prior to the amendment of Section 718.303(1), a prevailing party in an action for damages or for injunctive relief under that statute was entitled to attorney’s fees. But now prevailing parties are entitled to an award of attorney’s fees in actions at law or in equity, or both relating to the failure to comply with Chapter 718 or the governing documents.             Declaratory judgment actions are common causes of action raised in Chapter 718 proceedings. For this action, a plaintiff usually maintains that declaratory relief is needed on an issue where there is uncertainty as it relates to the parties’ rights, duties, and status. Declaratory relief is neither damages nor injunctive relief. Thus, a prevailing party under the prior version of Section 718.303(1) would not have been entitled to recover attorney’s fees from the non-prevailing party. For example, in Angelo’s Aggregate Materials, Ltd. v. Pasco Cty., 118 So. 3d 971, 975 (Fla. 2d DCA 2013), the appellate court construed “damages or injunctive relief” expressed in a county ordinance “to apply only to damages and injunctions and not to declaratory actions.”             But now Section 718.303(1) specifies actions “at law or in equity,” and...

    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...

    (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!"...

    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  

   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...

     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...