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...

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...

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...

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. 

The Daily Business Review has announced its 2022 Legal Awards Honorees and Sachs Sax Caplan Partner Daniel A. Kaskel was among those who received the prestigious award. The Daily Business Review hosts their annual Professional Excellence Awards to recognize distinguished members of the Florida legal community in assorted areas of the law. Mr. Kaskel is being recognized in the Real Estate Transactions Category. Daniel Kaskel is the Chair of the firm’s Real Estate, Corporate, Land Use & Financial Services Group and a member of the Community Associations Practice Group. Mr. Kaskel is among Florida’s handful of double Board Certified attorneys by the Florida Bar, holding certifications in Real Estate Law and Condominium & Planned Development Law. Dan Kaskel practices in the areas of real estate acquisition and development, real estate financing, condominium and homeowner association formation and operation, real estate and commercial lending, retail and office leasing, zoning issues and title insurance matters. He has represented real estate developers and investors in virtually all phases of project financing and development throughout the United States, including bulk acquisition of condominium units, management of distressed properties, development/acquisition/ financing of mixed used communities, shopping centers, residential high rise projects, office parks, assisted living facilities, single family home communities, multi-tiered condominium and townhome communities. He has assisted clients in creating planned unit developments, master property owners associations, and community development districts. He has also represented clients in the structuring and formation of corporate entities and joint venture arrangements. Mr. Kaskel has significant experience in representing borrowers and lenders in connection with commercial loan transactions, including loan work-outs and restructuring. Loans have including construction financing, acquisition and development loans, bridge financing, permanent financing and mezzanine financing. Additionally, he has represented regional and national landlords and tenants in drafting, negotiating and modifying commercial leases throughout the United States. Mr. Kaskel frequently represents out-of-state and foreign purchasers and borrowers in connection with Florida transactions and title insurance matters. Mr. Kaskel has represented national telecommunication carriers, property owners and municipalities in connection with drafting and negotiating telecommunications leases and counseling on zoning matters relating to telecommunication uses. Previously, Mr....

As a Community Association attorney, one of the unintended benefits that we've seen through COVID is the ability for people to participate in their community associations remotely. Typically, one of the impediments that community associations have historically faced is apathy. There are always those folks who don't show up, therefore you can't get anything done simply due to a lack of participation. However, through COVID, once everything went remote, including association operations, people started to participate more, which allowed for the opportunity for associations to start proposing a number of important things that could realistically get passed. One of the mechanisms we've seen an uptick in is the use electronic voting resolutions to allow people to participate and vote in an electronic fashion. Again, this removes some of the apathy because there's no longer the need to show up at a meeting at a certain time to cast a vote. People can do it at their leisure in advance. Overall, as community association lawyers, we've found that participation as a whole through COVID, and now turning the corner post COVID, has seen a significant uptick and is finally allowing associations to actually get meaningful work done that before this, they just simply were unable to do. Having Trouble Engaging Homeowners in Your Community Association? Check out these helpful tips from community association management giant, GrandManors:   1. Welcome New Homeowners. A welcome package from the community association should include a letter of welcome that you or another HOA board member has signed, information about how they can get involved in the HOA, and a small gift. The gift should have a connection to your community, such as a gift card to a nearby coffee shop, a refrigerator magnet with key community information, or a coffee mug with the HOA logo.   2. Organize Social Events. Consistently, studies have shown most Americans don't know their neighbors. Your homeowners have more motivation to get involved if they're at least acquainted with their neighbors. Your association can foster social connections by hosting at least one community-wide social event each year. Some associations throw a holiday party or a summer picnic....

As community association attorneys, one of the problems we face quite often with our association clients is how to prevent violations of the governing documents and rules of the communities. How do we prevent the homeowner from painting their house pink? How do we prevent people from hanging towels outside on the common element rails and doing other things that really are violations of the rules and regulations and the governing documents? And what a lot of board members and managers don't realize is that associations are sort of mini-democracies. What does that mean, exactly? There's a certain level of “due process” that associations must follow if they're going to fine somebody or if they're going to suspend somebody’s right to use the pool, or their right to use the tennis court. And one of the things that's common among both the Condominium Act and the Homeowners Association Act, is the fact that an association must establish a committee of non-board member owners who will hear complaints that the board has imposed regarding violations of the governing documents. This group serves as an independent body that decides whether they're going to uphold or approve the board's actions and decisions in relation to imposing fines and suspensions. Furthermore, both Acts require that the owner who was in violation and subject to a board-levied fine or suspension be provided with at least 14 days’ notice as well as the opportunity to be heard before this committee to present their case. This gives the person in violation a chance to present their opinion and present their evidence of why they think that the fine and the suspension should not be imposed. Only then, when it's all said and done, can the committee ultimately decide whether to approve or reject the fine or suspension. What we often face as association lawyers are situations where perhaps that procedure wasn't followed, where a board or managers just decided that this person violated the governing documents, and the violating party all of a sudden has a $1,000 fine on their account. When they come to us to try...