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...

    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...

   July 29, 2021 - Principal Attorney Brett A. Duker has been conferred the status of Board Certified in Construction Law by the Florida Bar. Duker is one of seventy six attorneys in the state to earn Florida Bar board certification, which recognizes attorneys’ special knowledge, skills, and proficiency in various areas of law and professionalism and ethics in practice. Board certified lawyers are “Evaluated for Professionalism and Tested for Expertise.”     Florida’s legal ranks currently feature over 5,000 board-certified attorneys, offering expertise in 27 areas of law. With just one in 20 Florida Bar members able to call themselves “board certified,” it clearly is a crucial component in the career of any attorney looking to emerge from the crowd.    As the legal landscape grows increasingly competitive, board certified lawyers are able to use their status to set themselves apart from peers. And a growing number of Bar members are exploring board certification to help stand out in what they see as a crowded landscape. Minimum standards for construction law certification, provided in Rule 6-24.3, include: Practice of law for at least five years;Substantial involvement in the specialty of construction law – 40% or more – during the three years immediately preceding application;45 hours of approved construction law certification continuing legal education in the three years immediately preceding application;Peer review; and,A written examination. Congratulations Brett! Visit the Florida Bar website to see a full list of individuals who are now board certified: https://www.floridabar.org/the-florida-bar-news/76-florida-lawyers-earn-board-certification/ 

   Sachs Sax Caplan, P.L. founding partners, Louis Caplan and Peter S. Sachs are quoted in the news regarding the Surfside tragedy.  "People are saying, 'Am I safe?'" said founding partner Peter S. Sachs. "'What repairs do we need in my building? What have we done, what have we done?'" "We don't have any re-inspections required in Palm Beach County, or anywhere in the state, outside of Miami-Dade and Broward County," Sachs said. "If we could prevent this from happening again, that would be a wonderful legacy to this whole situation."  “Our hearts go out to all the victims of the Surfside collapse and their loved ones. This horrific tragedy is a red flag warning for all high-rise condominiums, apartments, and commercial buildings – not just those along the coast,” said Louis Caplan, a founding partner of Sachs Sax Caplan. “The State of Florida inspects everything from elevators to gas pumps to ensure public safety, and we should similarly have statewide standards for buildings where hundreds, or even thousands, of people live or work,” said Peter S. Sachs, a founding partner at the firm who helped draft Florida’s original condominium laws in the mid-1970s. Caplan said Florida cannot leave the safety of buildings to volunteer condominium association members who lack the professional expertise to judge a structure’s integrity. “Condominium boards are willing to spend whatever is necessary to protect their residents,” he said. “The focus should be not on what it costs, but rather what it saves – lives.” Click the links below to read the articles in full. WPTV Article: https://www.wptv.com/news/state/attorneys-call-for-task-force-following-surfside-collapse-to-recommend-reforms WFLX Article: https://www.wflx.com/2021/07/01/attorneys-call-task-force-following-surfside-collapse/ Florida Politics Article: https://floridapolitics.com/archives/438646-law-firm-calls-for-special-task-force-after-surfside-condo-disaster/ 

   BOCA RATON, Fla. – Governor Ron DeSantis should immediately empanel a special task force of experts to examine the tragic Surfside condominium building collapse and recommend reforms intended to ensure that nothing like it ever happens again. That is the recommendation of Sachs Sax Caplan, one of the nation’s most experienced and respected law firms in the area of condominium law.    The special task force would include engineers, architects, building contractors, and other industry experts to make recommendations to the Governor, Florida Legislature, and state regulatory agencies in advance of the January 2022 session of the Legislature. The focus should be to develop policy changes that help establish a uniform statewide standard for building inspections and re-inspections, with the overarching goal of protecting life and safety.  The group could also make specific suggestions to ensure that existing condominium buildings are safe across the state and that current and future structures maintain the highest safety standards and structural integrity.    “Our hearts go out to all the victims of the Surfside collapse and their loved ones. This horrific tragedy is a red flag warning for all high-rise condominiums, apartments, and commercial buildings – not just those along the coast,” said Louis Caplan, a founding partner of the law firm. “The condition of aging buildings is a statewide problem, and it demands careful examination by a panel of experts who can make comprehensive recommendations at the state level.”    Since the June 24 collapse of Champlain Towers South in the Miami-Dade County town of Surfside, scores of questions are being raised, including the cause of the collapse, how to determine if other condo/high-rise buildings are at risk, whether building inspection laws and standards should be uniform statewide, and what steps condo associations should take to ensure that their buildings are safe.    Caplan and fellow founding partner Peter S. Sachs are urging the Governor to act quickly to create the task force and appoint members with a relevant range of professional expertise. Areas to scrutinize could include building materials, the frequency of inspections, and new mandatory disclosure requirements between condo associations and...

       On March 9, 2020, Governor DeSantis issued Executive Order 20-52, declaring a statewide State of Emergency in response to COVID-19. This order triggered statutory emergency powers for community associations throughout the state. The Governor continued to issue Executive Orders extending the State of Emergency every 60 days, up until the most recent extension made on April 27, 2021. On June 26, 2021, when the Governor did not further extend the March 2020 order, the COVID-19 State of Emergency expired.        Although the COVID-19 State of Emergency has expired, the COVID pandemic remains, and Florida continues to experience new cases, including new infections from COVID variants. In light of this, we believe the statutory emergency powers may continue to be relied upon for a reasonable period of time to continue employing reasonable measures association boards believe are necessary to provide for the health, safety and welfare of residents and their guests. For example, associations may continue to require use of face masks in common areas based on current CDC guidelines. Additionally, a graduated reopening of amenities, such as restricted capacities and/or operating hours, may be appropriate in balancing the safety of residents with the desire to enjoy all of the amenities in full, pre-pandemic, fashion. Each association will have its own unique set of circumstances and needs shaping which measures individual boards believe are reasonable and appropriate for their association.        The governing documents for an association will further address the extent of a board’s authority to administer and operate the association and to provide for the health, safety and welfare of the residents. If your board is struggling with the transition from the state of emergency and authority provided by the emergency powers, you should consult your association attorney. Michael UngerbuehlerSACHS SAX CAPLAN, P.L.

        On Thursday, June 24, 2021 around 1:30 a.m. officials received word of a building collapse in Surfside, Florida. Our thoughts and prayers go out to the residents affected by the tragedy at Champlain Towers South in Surfside. The condominium building has 136 units; approximately 55 units collapsed, and the entire building is now uninhabitable. The search, rescue and reunification processes are ongoing.         “Buildings just don’t fall down”, said Surfside Mayor Charles Burkett. He’s right, they don’t, which may lead to many other associations questioning their buildings’ structural safety and integrity. While it’s unclear what happened in Surfside, this tragic event underscores the necessity for associations serving multi-story buildings to be proactive and look at properties and their certifications to ensure this type of situation does not happen again.         In both Broward and Miami-Dade counties, there is a 40-year recertification process for real estate properties that are over 40 years old. Miami-Dade has had this process in place since the mid 1970’s, and Broward followed suit in 2005. The program calls for structural and electrical inspections for buildings 40 years old or older and every ten years thereafter. There are some exemptions depending on square footage, occupancy amount, farming buildings, as well as buildings on Indian Reservations.  While Palm Beach county does not have the same requirements for older buildings, it is highly recommended that buildings 40 years and older take these same precautions and follow these protocols.         Champlain Towers was built in 1981, making it a 40-year old building this year. Units in the building are typically listed between $600,000 and $710,000. This was a luxury condo building with many amenities and luxurious features. Surfside Commissioner Eliana Salzhauer said the building was beginning its 40-year recertification process and the roof was being redone. It is unknown if the construction activity contributed to the collapse.         40 years is a long time for a building to be around, especially when in close proximity to the ocean, and given the constant and evolving changes...

        It is often thought that estate planning is just for older people who are more established in their careers and lives and have more to plan for, when, that could not be further from the truth. From individuals planning for themselves, to married couples with young children, to retired adults, everyone can use some sort of planning.  This post will focus on estate planning for individuals or couples with a minor child and address some of the topics that they should be consider when planning for their child.           If you ask anyone with a minor child what their biggest concern is should they as parents, pass away, and most will answer that their largest concern is making sure their child is well taken care of. They generally do not mean this in the financial sense, but more in the sense that they will be raised in a good home and provided with the proper support system to help them grow. Here are a few things you should consider when planning for your minor child.         The first question you want to ask yourself, if you pass away, who would you want to raise your child?  That person or people need to be named in your Last Will and Testament. If your preference is not outlined in your documents, there is a chance that a legal battle will ensue to determine the best Guardian for your child(ren). The preference you have indicated in your Last Will is generally honored by the courts.         When considering who to name as Guardian, it is worthwhile to consider, the proposed Guardian’s religious and social values, the Guardian’s other children, where the Guardian lives and the arrangements available for your child.         Once you have decided who would be best suited to act as Guardian for your child, you need to decide how your assets should be distributed.  Without a plan, at your death, your assets would be given to the Guardian of your minor child and held for your child...

        New changes to the Florida Statutes governing community associations will become effective July 1, 2021, pursuant to multiple bills passed during the most recent legislative session.  Among these bills, SB 56 is particularly directed to community associations’ collection of maintenance fees and assessments.  Board members, property managers, and any community association staff involved in assessment collection must be familiar with these new provisions so as not to jeopardize or delay the ability of their associations to collect assessments from owners who have become delinquent.         Perhaps the most critical legislative change contained in SB 56 likely to affect all associations at one time or another is a new requirement that associations send owners who have become delinquent a sort of “courtesy” notice advising of their delinquency prior to requiring payment of any attorney fees for collection to be paid by the owner.  Currently, there is no actual statutory requirement that an association first notify an owner of their delinquency before sending the account to the attorney (even though many associations already routinely do so.)           However, SB 56 amends the Florida Statutes governing community association “pre-lien” collection practices to now require associations to first send a delinquent owner a “Notice of Late Assessment,” specifying the amount due on the owner’s account and providing the owner 30 days to pay that amount before any “further collection action” (i.e., attorney collection efforts) and attorney fees for collection are charged to the owner.  Form language for these notices is included in the legislation, and, unless the association substantially follows this language, subsequent collection efforts by the association attorney are likely to be negatively impacted.  Further, the legislation creates a rebuttable presumption that the “courtesy” notice was mailed if a board member, officer, agent, or licensed community association manager “provides a sworn affidavit attesting to such mailing.”  This means that associations will need to have forms prepared and ready attesting that the notice was mailed to each owner it sends to the association attorney for collection.         Secondly, the legislation prohibits...

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

          As many of you may know, Palm Beach County has issued Order 2020-012 to mandate the wearing of face masks throughout the County. At this time, based upon our review of the Order, and the information currently available, we advise that any association with an open indoor facility, clubhouse, recreation center or the like, should mandate that all people that enter the building be wearing a mask. It is likely that employees who are limiting their movements to an office with no interactions with any other person may not be required to wear a mask. However, if there is any interaction between people within an association building, all participants are required to wear a mask.           For outdoor common areas or common elements, a mask is not required IF social distancing is possible AND followed. The County has placed the burden on the respective establishment, including community associations, to ensure compliance with this order, or face the possibility of fines. There are several exceptions to the mask requirement, including while exercising, for religious reasons, or for medical reasons. We think that some owners may begin to express a medical basis to be exempt from the mask requirement, however, that does not exempt that person from maintaining proper social distancing, which the association should insist upon. Please let us know if you have any questions.

          By recent order of Governor DeSantis, Florida’s state of emergency due to COVID-19 has been extended to the beginning of November 2020. In part, this means that homeowners’ associations and condominium associations continue to be able to utilize emergency powers pursuant to Fla. Stat. §720.316 and Fla. Stat. §718.1265 respectively. Notably, among other emergency powers, is associations’ emergency power to determine that portions of association property are unavailable for entry, use, or occupancy. As such, this emergency power allows associations to keep facilities closed or to reopen them subject to limitations upon use and/or access.           Furthermore, despite what state and local governments may be permitting in terms of reopening public facilities and businesses, because of associations’ statutory emergency powers and the continuing state of emergency, there is no requirement that associations reopen association facilities at this time. In addition, those associations that choose to reopen association properties may elect to do so in a way that is more restrictive (but not less restrictive) than what is required by applicable government reopening orders.           In terms of current reopening orders, note that Palm Beach County has just entered Phase 2 of reopening after being in Phase 1 since May 11, 2020. Some salient aspects of Phase 2 which are likely to be germane to associations are as follows: CDC social distancing guidelines as well as CDC cleaning and disinfecting guidelines remain in effect.Mandates on wearing facial coverings remain in effect and unchanged by entry into Phase 2.Restaurants and food establishments including clubhouses, banquet halls, and ballrooms may increase indoor service up to 50% seating capacity, bar top meal service may be resumed, and parties of no more than ten people will be permitted provided that separate parties are spaced at least six feet apart from each other.Restaurants and food establishments may be open for dining at all times except between 12:00 a.m. and 5:00 a.m. Take out and delivery services are permitted after dining hours.Spas, acupuncture establishments, massage establishments, gyms, and fitness centers may resume operating at full...