Covenant Enforcement

Michael Chapnick

Today, I’d like to discuss something called covenant enforcement. Covenant enforcement is when an association must enforce the rules, regulations and restrictive covenants that are contained in an association’s declaration, whether it's a declaration of condominium or a declaration of covenants and restrictions – and there are many ways of doing so. However, one of the biggest complaints that I've heard over the years is that associations have no teeth to enforce their documents, which is not true. Associations do have teeth – they do have the ability to enforce. The issue primarily is being willing to do what it takes to enforce the documents. Avenues to take include fining, suspending usage rights or potentially suspending voting rights. In extreme cases, you're talking about going to mandatory mediation, which is now required under the homeowner's association statute, Section 720.311 of the Florida Statutes. It's also one of your options under the condominium statute, Section 718.1255. So, you do have some options for covenant enforcement. What we always need to be mindful of when enforcing an association’s rules is that everybody must be treated the same under similar circumstances. You don't want to be in a position where you are trying to enforce your rules and regulations against a unit owner or an occupant, and they raise a defense of selective enforcement. Selective enforcement means that you have enforced the same covenant against one person but not another under similar circumstances. We always must compare apples to apples and oranges to oranges. Other defenses include waiver and estoppel (which are really two sides of the same coin).  For example, if approval was obtained for an architectural change, and the owner expended money and time and contractors in getting the work done, the association can’t come back and change its mind later. The approval has already been relied upon. We never want these kinds of valid defenses to be able to be raised, so we need to be mindful of what we're doing and how we're doing it. We always need to make sure that we're even handed, that we're consistent, and that...

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The Challenges of an HOA Board Member: Tips to Overcome

Larry E. Schner

It has never been more challenging to be a board member in a condominium or homeowners association than it is at this time. Association board members in this voluntary position are being interacted by Association Members everywhere they go. In the hallway, at the pool, in the elevator, and everywhere else in the community, they’re being asked board questions and association questions by unit owners - possibly whom they’ve never even met. Aside from the usual worrying about maintenance, assessments and other items, we are now dealing with a pandemic as well - a pandemic that has created a plethora of new issues that we weren’t necessarily expecting. Covid-19 has created a situation where owners are spending more time in their homes, which means more time reviewing their property and its structure. Furthermore, homeowners’ association meetings are now often conducted on Zoom. Therefore, people who otherwise may have rarely shown up and been involved are regularly dropping in live from the comfort of their living room. As an Association attorney, I have clients come to me because newly interested owners are challenging them and their board members. They're challenging the appearance of their community. They're challenging the assessments they're paying, and they're challenging their rights, which sometimes have to be taken away for health, safety and welfare purposes. How do board members overcome or live with these challenges? As Association board members, you have to understand now more than ever, that you are board members when you interact at a meeting with other board members. When you’re walking around the halls or when you are at the pool, you are not a board member. You are not conducting board business, therefore you don't have an obligation to respond to these questions. However, I know that is not a great answer, because unit owners expect answers. So,one of the things I instruct our board members to do is to tell any and all unit owners, “That’s a very important concern, please put it in writing, submit it to our property manager, and we'll take it up at the next board meeting.” That...

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3 Important Tips for Board Members of HOAs and Condo Associations

Brian T. Meanley

Whether you’re an existing board member or a new board member this year, as Community Association Law attorneys, we’d like to offer you some advice as you begin to fulfill your duties in 2023. Here are the 3 top tips for community association board members: 1. Know Your Governing Documents  Whether you're a Condominium Association under Chapter 718 or a Homeowners Association under Chapter 720, your Community Association has a set of governing documents, and the law imposes upon you a duty to know what those documents are as well as their function and purpose.  Both HOAs and condo associations have declarations of covenants and restrictions that impose a set of obligations or stipulations on owners (i.e. use restrictions, ownership restrictions, occupancy restrictions, etc.). Under the law, there is a certain hierarchy in governing documents in which the Declaration is the most important. The other two types of governing documents, the Articles of Incorporation and Bylaws, determine how your corporation runs i.e. eligibility requirements for the board, elections, annual meetings, etc.  Under law, a new board member of a community association – both in condos and HOAs – have an obligation within 90 days of commencing service on the board to certify in writing that they have read and understand all governing documents and agreed to, to the best of their ability, enforce those governing documents according to their provisions.  As community association law attorneys, we also recommend that you take a board certification course, especially if you have never served as a board member before. Along with a Certificate of Completion, you’ll receive valuable information and tips for being a successful board member. Our Community Association Attorneys at Sachs Sax Caplan frequently teach board member certification courses as well as continuing education courses for Florida Community Association Managers. To learn more and find out when our next class is, call 561-994-4499. 2. Treat Your Community Like a Business  As a board member, you have a fiduciary obligation to other members and owners in your community to serve objectively, responsibly, honestly and efficiently. I believe the best way to do that...

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5 Things to Keep in Mind When Looking for an Attorney

Angela Prudenti

Hiring an attorney isn’t really something that most people think about, until they suddenly need one. That means the majority people don’t really know what to look for when they do have to find an experienced attorney in South Florida. If you find yourself searching for one of the best lawyers in West Palm Beach and beyond, here are 5 things you may want to keep in mind: 1) One of the first questions you may have is where to find a great attorney in South Florida. With all the TV ads, billboards and website banners, it can seem overwhelming know where to start and whom to trust. That’s why I suggest to start by asking your friends, family, and colleagues. See if they know or can refer you to someone they have had a positive interaction with. Now you may think, “But I don’t want them to know my personal business.” We understand. Maybe you’ve met an attorney and have their business card tucked away somewhere. Dust off that business card and give them a call. If they can't help you, ask them to refer you to someone who can. 2) The next thing you may be wondering is if your needs will be better served by a big firm or a small firm. Here at Sachs Sax Caplan, we have over 30 attorneys and 32 support staff, offering you all the resources of a big firm while also being able to give you and your case the personal attention that comes with a boutique firm, which we consider as the best kind of firm to solve all legal of your needs. 3) Now that you’ve found some attorneys with whom you are interested in meeting, the next step is to schedule a time to determine who is the right fit for you and your needs. Think of this meeting as somewhat of an interview and, as you would for any interview, do your due diligence beforehand. Check out their websites and read about their firms’ previous cases to help you get a sense of who they are and how...

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Tips for Returning to Your South Florida Home

Daniel A. Weber

We at Sachs Sax Caplan want to welcome back all of the out-of-town residents who are now coming back down to South Florida after a summer respite elsewhere in the country. As Community Association attorneys, we would like to give you some brief pointers of things we recommend you do upon returning to the Tri County area.  Start by checking your utilities to ensure they are all turned back on. Check for leaks by flushing all toilets and examining all doors and windows in your home. If you do detect any water leakage in those areas, communicate the problem to your association board and your property manager as soon as possible so they can be remediated expeditiously.  Hopefully you won’t find any problems, however, whether you do or do not have any situation to report, you should contact your property manager or board of directors to inquire about what the board has done since the last time you've left. If you've not had electronic communication with them, you're going to want to ask specifically if there have been any special assessments passed or if there any special assessments planned. Determine whether there have been any large maintenance projects completed or in progress or if there are any plans for upcoming work. Projects like this may affect day-to-day operations in the community, and, of course, you will also want to know how any work done will impact the pocketbook that you have with your association.  You should also be aware of the recent legislation passed in the state in response to the Surfside tragedy that involves stricter building safety requirements. One aspect of SB 4-D involves the funding of reserves for the continued maintenance and repair of condominium and co-op buildings three stories or larger that is now required to be in the budget.  Historically, it is unlikely that your association has already prepared or adequately funded their reserves, and these large-scale projects are likely going to result in a special assessment. The sooner your association can plan and prepare, the less of an impact it will have on each owner.  In...

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Why is the assistance of an attorney important in the review of service contracts?

Berwin Victor

Benjamin Franklin famously said back in 1736 that “an ounce of prevention is worth a pound of cure.” Mr. Franklin’s saying was most certainly not meant to apply to Florida property owners associations as Florida was not even a state at the time but his advice can be seen as applicable to community associations insofar as service contracts are concerned because it is easier to prevent large costs and legal exposure to an association by sound contract language crafted or approved by an attorney at the start of a relationship with a vendor than to repair the damage that a poorly worded agreement that was simply signed on an association’s behalf without legal review has created. What do I mean by service contract? An important function of an association is to oversee essential services that vendors provide for the community such as landscaping, pest control, asphalt paving, and security. These services require written contracts which should include important terms that protect the association, particularly in the event that the vendor does not perform its side of the bargain or causes damage to a person or property. Why is the assistance of an attorney important in the review of service contracts? Perhaps most significantly, contract disputes can be expensive and time-consuming. And, such disputes are not always incorporated into the association’s annual budget which could put a lot of financial strain on the association and lead to unpopular special assessments. Also, the association can be stuck with a vendor that is doing a poor job. Some examples of where an attorney’s advice is important include making sure the vendor is contractually obligated to provide sufficient insurance and that there are well worded indemnification provisions. There are some nuances in Florida law regarding indemnity and all too often it seems that contracts created by vendors are one-sided and do not protect the association in the event for example that a third party is injured as a result of the vendor’s services. Also, contracts created by the vendor may be unclear or unfavorable to the association regarding the vendor’s responsibilities, the timeframe by which...

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Closing on Your Home: Why You Need a Real Estate Attorney

Closing on your home?

My firm receives roughly three phone calls a month from people that have bought or sold homes without the help of a professional real estate attorney and experience post-closing issues. As real estate lawyers, we're here to help avoid having to make those phone calls in the first place.  In the State of Florida, it's not required to have an attorney for your closing transactions – but it is highly recommended. Buying a home is a significant investment, and similarly selling a home is a significant transaction.  Whether buying or selling, you need an attorney on your side, representing your best interests. A real estate agent plays a very important role, but they're not attorneys, nor do they render legal advice. Similarly, in Florida, a title agency serves a role, but they're an independent third party. They do not “represent” you.  However, a board certified real estate attorney can represent you and look out for your best interests. So, why exactly do you need an attorney on a real estate transaction? Following are important issues that an experienced real estate attorney will assist with: Taking Title - An attorney will help you avoid post-closing issues by clarifying important issues at the outset.  Firstly, how do you want to take the title – individually? Jointly? Perhaps you are better suited with a life estate, trust or other type of planning mechanism.  It is far better and more cost-effective to address these issues prior to closing. Tax Planning - Tax planning, including transfer taxes at closing, real estate taxes and potential income taxes, are issues that can be addressed and planned before closing takes place if you discuss it with an experienced real estate attorney beforehand.  Surveys - An attorney will help you raise and review important survey and title issues that a title agent may not share with you – or may not know to. In fact, some title agents close without a survey. However, we always recommend closing with a survey reviewed and commented on by an attorney.  Title Objections - Your attorney will also raise title objections that a title...

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Understanding the Mechanics of Your Commercial Lease

Daniel A. Kaskel

Rent is typically a business's second largest expense following wages and a lease is often a five to ten year term. Therefore, your lease is probably one of the most significant contracts that you as a business owner will enter into. And it's probably one of the most costly ones, too. That’s why it's important to understand some of the mechanics of your commercial lease.  Commercial leases are often negotiated, and a reasonable landlord will consider modifications that benefit the tenant.  As a Florida Bar Board Certified Real Estate Attorney, with significant experience in commercial leasing, following are some considerations that I recommend people think about before signing a lease: Exit Strategy: What is your exit strategy? Can you terminate the lease early? And if so, under what circumstances?  Can you assign or sublease? The permitted use allowed in the lease is a function of what you can or can't do with respect to your exit strategy. Timing: What is the timing of the landlord or tenant construction/improvements? Responsibility: Who's paying for construction/improvements? How and when is the landlord dispersing any tenant improvement allowance? Code Changes: Who is responsible for required improvements to the property due to code changes? For instance, several years ago, the ADA changed, and every commercial space had to be modified, therefore you need to know who's responsible for paying and making those changes? CAM Expenses: How are operating expenses, often referred to as CAM (common area maintenance), determined? What's included and excluded in the component of CAM? What are your audit rights as a tenant to review and audit the way the landlord has assessed CAM?Future Alterations: What are your rights to make alterations and improvements to the property after the lease commences? This is particularly important for leases with longer terms and renewal options. Parking: An issue that I find a lot of tenants asked me about is parking and signage. To what extent do you have reserved parking and does any other tenant in the building have reserved parking? Signage: What are your signage rights and who's paying for your signage? Personal Guaranty: Is the lease personally guaranteed, and if so,...

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Steve Geller Serves as Panelist at National Gaming Law Conference to Discuss Sports Betting

Geller Steven

The National Council of Legislators from Gaming States (NCLGS) held its Summer Meeting at the Westin Copley Place in Boston, Massachusetts in early July 2022. Steven Geller, who is the NCLGS’s General Counsel, was a panelist on the topic of Sports Betting at the conference. The conversation centered around the Wire Act of 1961, which banned gambling across state lines. Prior to 2011, the U.S. Department of Justice stated that the Wire Act applied to all types of gambling.   In 2011, the U.S. Department of Justice reversed their prior opinion, and stated that the Wire Act only applied to sports betting. In 2018, the same body reversed the reversal, and again declared that the Wire Act applied to any form of gambling. In 2020, a federal judge ruled that the more limited 2011 interpretation was correct.  In 2021 The 1st Circuit Court of Appeals agreed with the Federal Judge’s ruling that the Wire Act only applied to Sports betting.  However, the U.S. Department of Justice has not changed their interpretation that the Wire Act applies to all types of gambling. These confusing rulings and reversals of the Act were debated by the panel during the session, and, most importantly, how the Wire Act applies to Sports Betting. “In my belief, the current state of sports betting is based more on what people want the law to be, instead of what the law actually is,” said Geller.  “I believe all of these attempts at wireless sports betting seem to violate the Wire Act,” Geller said. “I think [sports betting] should be limited to in-person. Now, do I think Congress should change the law? Absolutely. But until they do, I think we are bound by [the Wire Act].”  Geller said that consideration of limiting sports betting to brick-and-mortar sites might best be looked at for lawmakers in the sense of job creation — with online gambling employing far fewer local residents. “That is one of the fundamental reasons that people justify [legalization of] gambling,” Geller said. When the conversation turned to the possibility of a group of states forming a collective in an...

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Why Everyone Should Have an Estate Plan

andrew gindea 1620747752

When I ask people if they have an estate plan, I often get responses such as I'm not wealthy, so I don't need a plan, or I don't have an estate, or why do I need a plan at all? Doesn't everything just go to my spouse and kids? These are common misconceptions regarding estate planning. As an estate planning attorney, it is my recommendation that everyone – regardless of age, wealth, and family status – should have an estate plan. Particularly in these times, where we have seen that things can change so quickly, having a plan has never been more important. Some estate plans are simple and require only a couple of documents, while other plans are more complex. The plan that is right for you should be determined by an experienced estate planning attorney and would be formulated during your consultation process. Oftentimes, there are multiple ways to achieve the results you desire. The main goals of estate planning include: Designating people to make your medical and financial decisions for you while you are alive;Ensuring your property passes to the people you want in the percentages you want, and;Avoiding probate. Clients with minor children are also concerned with designating someone to care for their children should something happen to them. While the Florida law and statutes provide for default answers to all of these situations, having estate planning documents in place can ensure that those responsible for making decisions on your behalf have an easier time doing so. Further, depending on your life’s circumstances, you may not want the default people acting for you or inheriting from you in the way the law outlines. Having a plan really keeps you in control. It allows you to dictate and influence how your own wellbeing is cared for as well as how your family is taken care of after you pass. Schedule a complimentary consultation to learn more about the options and planning tools that are right for you.   Andrew E. Gindea is an Associate Attorney at Sachs Sax Caplan, P.L. practicing in the Estate Planning and Probate Litigation...

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Mandatory Mediation in Condominium Disputes


Mandatory Mediation in Condominium Disputes By Michael Chapnick, Community Association Law - Principal   Today, I'd like to talk about an issue that comes up in condominium associations… Covenant Enforcement. Since 1992, anything that qualified as a dispute under Section 718.1255 of the Florida Condominium Act, Chapter 718, was required to go through mandatory non-binding arbitration through the Department of Business and Professional Regulation. I've always found the arbitration program to be a great program, however, a couple years ago, at the legislative level, they decided to allow condominium associations to utilize a procedure that’s been used in homeowners associations for a number of years. That procedure is set out in Section 720.311 of the Florida Statutes and provides for a mandatory mediation of disputes as a prerequisite to filing a lawsuit. Therefore, rather than going through arbitration, and submitting your petition for arbitration, having the arbitrator review it for jurisdiction, determining that they have jurisdiction, then sending out an order requiring the respondent to file an answer, then going through evidentiary hearings and other things – an association has the option of filing a demand that the violating party participate in mandatory mediation. When you send out a demand for mandatory mediation, the responding party has 20 days to respond to that letter to let you know that either they agree to participate in the mediation, refuse to participate in mediation, or, they may ignore you completely. If they agree to participate, you’ll go to mediation where you sit down with a neutral mediator. The mediator is going to help facilitate a resolution. Their job is to reduce expectations on all sides, so if nobody leaves happy, but everybody leaves with a result that they can live with, that's a successful mediation. If the issue isn’t resolved through mediation, you end in what's called an impasse. Then you're free to file a lawsuit. To do this, you can go to County Court/Circuit Court (depending on the circumstances) and explain the issue to a judge, where you’ll go through the whole litigation process, and then a judge will make a decision...

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Understanding Recent Changes in Litigation and Appeals 


In the Commercial Litigation and Appeals practice area, it is important to stay on top of new developments in the law and procedure, including changes to Florida Statutes, rules of procedure and new appellate court case law. This includes routinely reviewing new appellate opinions. I would like to discuss a couple of recent decisions that impact both litigation and appeals.  Generally, each party is responsible for their own attorney’s fees in litigation unless a statute or contract applies. Florida Statute § 768.79 creates a substantive right to attorney’s fees relating to a proposal for settlement or “PFS.” The purpose of a PFS is to encourage settlements and to act as a penalty against a party who rejects a reasonable settlement offer.  That statute is implemented by rule 1.442, which governs the form of such proposals. If a defendant serves a PFS, which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney’s fees incurred by the defendant from the date of filing the offer, if the judgment is of no liability, or the judgment obtained by the plaintiff is at least 25% less than the amount offered in the PFS, and the court shall set off such costs and attorney’s fees against the award.  On the other hand, if a plaintiff serves a PFS which is not accepted by the defendant within 30 days, and the plaintiff recovers a judgment in an amount at least 25% greater than the offer, the plaintiff will be entitled to recover reasonable costs and attorney’s fees incurred from the date of serving the PFS.  As per the rule, a PFS must be in writing and must include a number of items. Currently, under the rule, a party serving a PFS must state the particularity of any relevant conditions, and to state the particularity of all non-monetary terms of the proposal. But recently, the Florida Supreme Court made an important change to the rule governing PFS. Effective July 1, 2022, this rule will no longer include the requirement that a PFS must state with particularity any...

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Benjamin Ferencz Awarded Governor’s Medal of Freedom by Gov. Ron DeSantis

Friend of Sachs Sax Caplan, Ben Ferencz, was the Chief Prosecutor in the Nuremberg War Crimes Trials, which held the Nazis accountable for the Holocaust, and is the last living prosecutor of the trials. About Benjamin Ferencz A Former Prosecutor at the Nuremberg War Crimes Trial Benjamin B. Ferencz was born in the Carpathian Mountains of Transylvania in 1920. When he was ten months old his family moved to America. His earliest memories are of his small basement apartment in a Manhattan district - appropriately referred to as "Hell's Kitchen." Even at an early age, he felt a deep yearning for universal friendship and world peace. A World War After Ben graduated from Harvard Law School in 1943, he joined an anti-aircraft artillery battalion preparing for the invasion of France. As an enlisted man under General Patton, he fought in most of the major campaigns in Europe. As Nazi atrocities were uncovered, he was transferred to a newly created War Crimes Branch of the Army to gather evidence of Nazi brutality and apprehend the criminals. In his 1988 book, Planethood, Ferencz writes: “Indelibly seared into my memory are the scenes I witnessed while liberating these centers of death and destruction. Camps like Buchenwald, Mauthausen, and Dachau are vividly imprinted in my mind's eye. Even today, when I close my eyes, I witness a deadly vision I can never forget-the crematoria aglow with the fire of burning flesh, the mounds of emaciated corpses stacked like cordwood waiting to be burned.... I had peered into Hell.” A Post-War Mission On the day after Christmas 1945, Ferencz was honorably discharged from the U.S. Army with the rank of Sergeant of Infantry. He returned to New York and prepared to practice law. Shortly thereafter, he was recruited for the Nuremberg war crimes trials. The International Military Tribunal prosecution against German Field Marshal, Herman Goering and other leading Nazis was already in progress under the leadership the American Prosecutor, Robert M. Jackson on leave from the US Supreme Court. The U.S. had decided to prosecute a broad cross section of Nazi criminals once the trial against...

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Sachs Sax Caplan Partners with JARC FL to Create Shredding Department in JARC's Community Works Program

Shred It & Forget It:The Story Behind the New Program That Helps Put Individuals with Disabilities Back to Work   When Sachs Sax Caplan decided to go digital in mid 2021, we knew we would first need to safely dispose of all print materials. The safest way to do so?Shredding. Lots of it. Peter Sachs, attorney and founding partner at Sachs Sax Caplan, also knew about the growing need for employment for individuals with intellectual and developmental disabilities. JARC Florida, a non-profit in Boca Raton that provides residential homes as well as programs and services to educate and empower adults with intellectual and developmental disabilities provided us just the assistance we needed. Sachs presented the idea to JARC Florida: How about we create a shredding department within the Community Works program at JARC. JARC’s Community Works program, which has been around for over six years, provides vocational training opportunities for its clients so they can learn skills, receive paychecks and feel prideful about having a job. Many of those clients then go out into the community to find employment locally.  After a trial period in the Fall, where JARC clients learned how to properly shred paper documents, including removing staples, stacking and pushing through the shredding machine – avoiding back-ups, JARC Florida was ready to launch this new service to the masses. Their first client? Sachs Sax Caplan law firm of course.  Now the “Shred it and Forget It” Service is available at JARC. To date, JARC has shredded more than 4,000 lbs. of documents. How can you get involved? Drop your documents off at JARC for confidential shredding services at 75 cents per pound. JARC is also seeking out more businesses to join the organization’s Community Works Program. 

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What to Consider Before Buying a Home in South Florida

As a land use lawyer, I'm the one who usually deals with the tough stuff after the purchase of a property, the kind of real estate law that people who aren’t in the business really do not need to know unless it happens to them. But I want to discuss something else with you – let’s talk about how it is that you find and relocate your family to Florida ---without having to see someone like me later. And, trust me, it would be great to not have to see me. If you're relocating to South Florida, probably the first thing on your mind is a house for you and your family. And of course, the name, Boca Raton comes to mind. But you'll soon find out that just like where you came from, you're relocating to a region, and that region is probably somewhere between Fort Lauderdale and West Palm Beach. And there are all sorts of little neighborhoods, and all sorts of little niches to consider for your family home. If you have children, the first thing you're going to be thinking about, of course, is schools – and you'll take your own deep dive into that. However, if you're a couple, the first thing you're probably thinking about is amenities – country clubs, golf courses, tennis, etc. Or if you’re more prone to go out and about as your leisure time activity, you may be thinking about the small towns that are dotted along the ocean, the towns that provide for walking streets, restaurants, and nightlife. In any case, once you have narrowed it down and you determine what it is that you want, you're going to be in the South Florida System for buying a house. What is that the South Florida System? Initially, you're going to see is a lot of pretty pictures and a lot of broad smiles. But let’s go beyond that. As I've said, the unfortunate thing is, you might see a person like me if you don't make the right choices. So, let's talk about some of those things that are going...

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