Today we'll discuss an important topic that seems to be inquired about often regarding community associations governance in Florida - and that topic is closed board of directors’ meetings. An important aspect of the board of directors’ role in governing an association—whether it is a condominium association or homeowners association—is transparency.  The residents of an association want to be able to trust the actions of the board and have a system that ensures accountability.  Accordingly, board meetings are, for the most part, open to members of the association.  However, there are circumstances where closed board meetings, which are not open to the members, are required.  Closed board meetings are a common practice in community associations, but when are they appropriate? Closed board meetings are gatherings of the directors where only board members are present to discuss sensitive or confidential matters affecting the association. In Florida, the law provides when an association’s board can close its meetings to homeowners.  Generally closed meetings are allowed in two situations: those involving legal matters and personnel issues.  The reasons for these particular two subjects to be addressed in closed meetings make sense. Legal matters include items such as pending litigation or consultation with attorneys.  When these matters are discussed at a meeting, the association’s counsel should be present.  Consultations with attorneys often involve the exchange of privileged and confidential information to protect the association’s interests.  Allowing access to others outside the board could result in the inappropriate disclosure of protected information, for example, if such meetings were open that information could be disclosed to those whose interests are potentially adverse to the association. The second subject appropriate for closed meetings is personnel matters. This is logical because discussions concerning an association’s employee’s performance or the need for disciplinary actions should be held in closed sessions in the interests of privacy and fairness. While closed meetings are necessary at times, transparency and accountability are still vital. Even in closed meetings, proper notice under Florida law that there will be a meeting must be provided to the membership and the decisions made in closed sessions should be...

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...

Creating a budget is one of the primary and most important functions that any community association board does during its tenure. The budget will serve as the guideline to determine the dollar amount owners are charged to live in their communities. There are differing obligations to consider when budgeting for a Homeowners Association (HOA) versus a Condominium Association. Today, we will discuss the differences and offer tips when creating your own community association budget. Let’s start with HOAs. HOA budgets are often a bit simpler than those for condominium associations. That is because HOA budgets normally do not require reserves. Reserves refer to funds set aside for future capital expenses and major repairs or replacements of common property or assets within the community.  Unless members of the association have voted to create reserve accounts, or the original developer of the property put reserves in the HOA’s Declaration of Covenants, Conditions, and Restrictions (CC&R) – commonly referred to as simply the “declaration” – reserves are not mandatory for HOAs. However, if the HOA votes to put money away for future capital expenses, or defer line items (like maintenance), they have that option. Unlike condominium associations, HOAs are not limited or hamstrung by Florida’s Reserve Statutes, which require specific line items in the condo’s budget. For HOAs, the reserves are more like a savings account to use at the board's discretion. One of the misconceptions of the budgeting process is going into it with the intention of trying to hit a target assessment mark. Members may get in the mindset of trying to raise or lower assessments or reach a specific number, like deciding we want $400 a month assessments, then trying to figure out how to get there. Whether for HOAs or condominium association, that's really not how budgets are supposed to work.  Budgets are estimations of expected expenses for the upcoming year that are created in order to derive a necessary revenue stream. The idea is to put all of your expected expenses into a basket, itemize them through your budget, the sum of which the necessary amount of revenue you...

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...

Senate Bill 360 (SB 360) was signed into law by Gov. Ron DeSantis on April 13, 2023, immediately becoming effective upon such signing. The bill is sure to significantly impact construction defect claims in Florida. This is because it drastically reduces the time limit for property owners to file suit against builders and construction professionals for construction defects and imposes a more stringent standard for bringing a claim under the Florida Building Code. Furthermore, the bill shortens the statute of repose for construction defect claims from 10 years to 7 years. Essentially, a statute of repose is the absolute deadline by which a lawsuit can be filed, even if a cause of action hasn’t yet occurred or you don’t know you may have a claim.  The bill not only shortens the length of time from 10 to 7 years, but it also changes the events that may trigger the clock to start and changes it from the last event to occur to the first to occur. Previously, the clock started running on the latest of any of the following events: actual possession by the owner; date of issuance of a certificate of occupancy; date of abandonment of incomplete construction; or the date of completion of termination of the contract between the engineer, architect, or contractor and her/his employer. However, now, the clock begins running on the earliest of any of the following events: the date of issuance of a temporary certificate of occupancy, a certificate of occupancy, or a certificate of completion; or the date of abandonment of incomplete construction. This means the length of time before building owners can be barred from bringing defect claims is shortened significantly. The bill also narrows the scope of statutory civil actions against builders for alleged violations of the Florida Building Code from any violation to a “material” violation. The bill defines a “material” violation as a Florida Building Code violation that exists within a completed building, structure, or facility which may reasonably result, or has resulted, in physical harm to a person or significant damage to the performance of a building or its systems. HB 360 Quick...

House Bill 437 (HB 437), a new law that went into effect on July 1, 2023, should be noted by any person living in a community association and every board member of a community association in Florida. With respect to condos, HB 437 adds Patriot Day to the specified days during which unit owners may display 1 portable, removable flag of the United States or one of its military branches. As for HOAs, homeowners may now display up to 2 flags representing the United States, a US military branch, Florida, a POW-MIA flag, and/or a “first responder flag”; previously, only 1 flag was statutorily permitted. The statute defines a “first responder flag” as recognizing and honoring and of the following: law enforcement officers, firefighters, paramedics, EMTs, correctional officers, 911 public safety telecommunicators, advanced practice registered nurses, licensed practical nurses, registered nurses, statewide urban & rescue program participants, federal law enforcement officers. Finally, HB 437 creates a new section of Chapter 720 providing that a homeowners association may not prohibit owners or their tenants from installing, displaying or storing items that are not visible from the parcel’s frontage or an adjacent parcel. HB 437 Key Factors: HB 437 amends Chapter 718 to provide for Condominium Associations that certain flags may now be flown on Patriot Day (September 11th) in addition to the existing list of holidays for which a Condominium unit owner may fly 1 portable, removable flag.HB 437 further amends Chapter 720 for Homeowners Associations to allow the flying of up to two (2) flags and expands the list of allowable flags to include “First Responder flags”. Why is HB 437 important? For Homeowners Associations, this legislation also creates a new Section of Chapter 720 to allow the installation, display and storage of items in a Homeowner’s rear yard, so long as such items are not visible from the frontage of the parcel or from an adjacent parcel. This would include the ability of a homeowner to store, place or install any items, such as boats, RV’s, and artificial turf, or any other items, so long as they are not visible...

Understanding SB 154 - Condominium and Coop Safety (Surfside Glitch Bill) Effective June 9, 2023, except as otherwise indicated herein This bill was passed in response to the surfside legislation passed last year, namely SB4D. This legislation clarifies many of the open issues and concerns that Associations were faced with after last year’s legislative session. Applies to Condominiums and Cooperatives. Milestone Inspections The legislature clarified that the requirements for the milestone inspections and structural integrity reserve studies apply only to residential Condominiums and Cooperatives, and not commercial Condominiums or Commercial Cooperatives. Note, the residential portion of a mixed use Condominium or mixed use Cooperative is subject to the milestone inspection and structural integrity reserve study requirements. The previous legislation differentiated between Condominiums and Cooperatives that were within three (3) miles of the coastline versus those that were not located within three (3) miles of a coastline. The coastline analysis has now been removed, and all condominium or cooperative buildings that are three (3) or more stories must conduct their milestone inspections within thirty (30) years of the building’s certificate of occupancy (the “30 Year Mark”), unless an earlier inspection (i.e., within twenty-five (25) years of certificate of occupancy) is justified by a local enforcement agency taking into account certain environmental factors, such as proximity to salt water. The legislature expanded who could perform the milestone inspection so that it could be performed by a “team of professionals,” with an engineer or licensed architect acting as the person responsible. The bill authorizes local enforcement agencies to extend the deadline for a building if it can be shown with good cause that the building has entered into a contract with an engineer or architect before the deadline but that the report cannot be reasonably completed prior to then. The bill specifies that the association must notify the membership of the deadline to complete a milestone inspection within 14 days of notice from the local enforcement agency that a milestone inspection is required. The bill further permits the local enforcement agency to accept a report issued by an engineer or architect that inspected the...

Understanding HB-919 - Homeowners Bill of Rights This law applies only to HOA’s and does not apply to Condominiums or Cooperatives.  This Act takes effect October 1, 2023. For all HOA notices of Board meetings, the notices now must specifically identify all agenda items for the meetings. The bill requires that where an Association collects a deposit from a member for any reason, including construction or a lease security deposit, or any other deposit, the Association must keep that deposit in a separate account from other Association funds.  Upon completion of the construction project or other reason for which the deposit was collected, the member may request an accounting from the Association, and the accounting must be provided within 7 days of the request.  Also, the Association must return any unused funds to the member within thirty (30) days after the construction project or other reason for the deposit has been completed. The bill provides that an owner’s designated mailing address is the member's property address unless the member has sent written notice to the association requesting that a different mailing address be used for all required notices. Similarly, a member's e-mail address is the e-mail address provided when the member consents in writing to receiving electronic notices unless the member has sent written notice to the association requesting that a different e-mail address be used for required notices. The bill provides that officers, directors or managers who knowingly accept a kickback or other items without consideration may be subject to monetary damages. It further provides for removal from office if charged or indicted for certain crimes such as forgery of ballots and envelopes, theft or embezzlement of Association funds, destruction of Association records, and obstruction of justice. If any such criminal charge is pending against an officer or director, such officer or director may not be appointed or elected to any position as an officer or director in any association, nor may have access to any official records of any association, except pursuant to Court Order. The bill requires developer-appointed officers and directors to annually disclose to the association their...

The Florida Association of Counties (FAC) has appointed Broward Commissioner Steve Geller to serve as Chair of the FAC Community & Urban Affairs Committee and Policy Leader on the FAC Finance, Tax & Administration Policy Committee.  The Community & Urban Affairs Committee is tasked with developing and recommending an annual statewide legislative platform for counties based on the following areas: Affordable Housing; Growth Management; Development, Planning and Zoning; State and Regional Transportation and Strategic Intermodal System Issues.  The Finance, Tax and Administration Committee oversees policies relating to the taxation and funding of local governments, administration of essential public services and accessible and accountable county government.  Commissioner Geller is uniquely qualified to serve on these committees with experience as a County Commissioner (2016-Present), Florida State Senator (1998-2008) and Florida State Representative (1988-1998). Geller served as Chair on the State Community Affairs Committee and as Vice Chair and Ranking Minority Member on the Finance and Tax Committee during his 20 years in the State Legislature. His areas of expertise align with those of the Florida Association of Counties. His most recent record of accomplishment includes: Creation of Film Lauderdale that serves as the Broward County Film Commission providing incentives to create high paying jobs, increase tourism and promote Broward County. Commission approval to allow affordable housing in commercially zoned areas located along transit-oriented corridors.Broward County Apprenticeship Program that mandates apprenticeship participation requirements on County construction contracts over $5 million, increasing opportunities for high paying skilled jobs.Advocate for innovative methods for water management and environmental planning as climate change has posed significant challenges such as flooding, sea level rise and extreme temperatures. Committed to public service, Commissioner Geller currently serves as Chair of the Broward County Water Advisory Board and Chair of the South Florida Regional Planning Council. He also serves on the Executive Committee of the Florida Association of Counties and the Broward County Cultural Council. For more than 85 years, the Florida Association of Counties (FAC) has represented the diverse interests of Florida's counties, emphasizing the importance of protecting home rule - the concept that communities and their local leaders should make the decisions that...

We hope you all join us in celebrating Founding Partner Peter S. Sachs’ 50-year anniversary of practicing law in the State of Florida!   Peter became a member of The Florida Bar in 1973. He and his fellow 50-Year members were honored at the 2023 Florida Bar 50-Year Member Luncheon at The Boca Raton on Friday, June 23, 2023. The special event took place during The Florida Bar Annual Convention, which was held from June 21st-24th in Boca Raton. Earlier this year, Peter also celebrated 50 years since graduating from Fordham Law School with other members of the Class of ’73, including Senior Judge  Loretta Preska of the U.S. District Court for the Southern District of New York (SDNY), at their reunion in New York City.   “It is difficult to comprehend that 50 years have elapsed since taking my oath as a Member of the Florida Bar.  I am grateful that along the way I received guidance and mentorship from lawyers and judges that I admired as consummate and ethical professionals.  Looking back, what I cherish most are the friendships that I made with other lawyers, jurists, and the many clients that I was privileged to represent.  I am blessed to still be practicing law and look forward to mentoring the next generation of attorneys, including those at my law firm and two children who followed in my footsteps, one of whom is a Family Law attorney and the other who works in the legal department of The Disney Corporation.” – Peter Sachs   Peter founded Sachs Sax Caplan P.L. in 1979. He is Board Certified in Condominium and Planned Development Law by The Florida Bar and through the years has handled a multitude of matters related to community associations (condominiums, cooperatives, homeowners, master and country clubs). He is considered one of the pioneers in the development of community association law and has earned a reputation as a staunch consumer rights advocate.  Peter’s notable work includes obtaining significant settlements on behalf of each of the four Century Village communities and the Kings Point complex in Delray Beach. He also created and represents Kings Point Recreation Corporation, the...

Hunters Run Property Owners v. Centerline Real Estate, LLC   The firm has struck another blow in support of the right of homeowners’ associations to enact and enforce mandatory country club membership requirements for their members. The Atlanta-based Eleventh U.S. Circuit Court of Appeals, in a complex, 22-page opinion written by Circuit Judge Robert Luck of Miami, affirmed a federal trial court decision in the Southern District of Florida that the exclusive Hunters Run Country Club in Delray Beach had every legal right to enforce its mandatory country club membership provision. The decision was rendered in Case No. 20-11800, Hunters Run Property Owners Association, Inc. v. Centerline Real Estate, LLC. It was the latest of a number of cases across Florida in which unit owner-members of a country club community have brought lawsuits attacking provisions in the declaration of covenants and restrictions requiring homeowners to join their country club. SSC has always been out front in support of homeowners associations in residential communities that require mandatory membership in the country clubs that are within the community. In the March 30 Hunters Run case, SSC principal Robert Rivas, a Florida Bar Board Certified Expert in Appellate Practice, conducted the litigation in both the trial and appellate courts. Notably, Rivas was also lead counsel almost a decade ago in another major appellate precedent establishing the legal propriety of mandatory country club membership provisions. In Harris v. Aberdeen Prop. Owners Ass’n, Inc., 135 So. 3d 365 (Fla. 4th DCA 2014), an appeal Rivas conducted, the Fourth District Court of Appeals of Florida held that a challenge to a provision in a common interest community’s declaration of covenants and restrictions must be filed before the expiration of a five-year statute of limitations. The Harris case involved a mandatory membership amendment and its precedent has been used again and again in untimely attacks on such provisions. Robert Rivas is a Principal in the Tallahassee office of Sachs Sax Caplan, P.L. Previously Mr. Rivas had a career as an award-winning reporter and editor for major newspapers before he entered law school in 1988. He made Law Review and graduated summa cum laude from Nova Law Center in 1991.   

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...

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...

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...

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...