We stand with our fellow Floridians, particularly those on the west coast who experienced the wrath of Hurricane Ian. Becker has been around for 50 years and will be here long after the storm has passed. We all hope and pray that loss of human life and physical injury will be minimal. “Stuff” can be fixed or replaced, even buildings, though it is rarely quick or easy. As we turn our eye to recovery, we are here to help.
In this Issue
Electronic voting offers a convenient method for casting your “ballot”. How can you bring electronic voting into your community? Jennifer Biletnikoff discusses in, “Electronic Voting in Community Associations Are the Days of Paper Ballots and In-Person Meetings a Thing of the Past?”
Associations must continue accepting payments directly from a delinquent owner even when the account is turned over to an association’s attorney for collections. Joy Mattingly breaks down what the statute says in, “Acceptance and Application of Payments is ALWAYS the Right Answer.”
Every five years the Department of Business and Professional Regulation updates the permitted estoppel fees. Learn about these changes in, “Estoppel Fees Have Increased” by Robert Caves.
Claims of breach of fiduciary duty is at the heart of, “THIS CASE: Perlow v. Goldberg.” from Jay Roberts. Find out why this case is important.
Check out this month’s Did You Know section to learn more about the important role an insurance adjuster plays in the aftermath of a disaster. The firm’s affiliated public adjusting company, Association Adjusting, can provide a preliminary assessment free of charge. If your property has incurred damage, please contact Association Adjusting at 844-394-2518.
If you have new members on your board or a new manager for your community and want them to be part of our Community Update, have them subscribe here:
EDITORS
Before the 2020 pandemic, annual membership meetings were a time for owners to get together and discuss community issues while anxiously awaiting for election ballots to be counted. However, COVID-19 changed the manner in which association meetings were held. With restrictions on large group gatherings and strict quarantine requirements, many associations limited in-person attendance, requiring some members to participate “remotely” via Zoom and other similar platforms. Now that things have returned to normal (for the most part), are the days of in-person only meetings and paper ballots/proxies also going to return?
Acceptance and Application of Payments is ALWAYS the Right Answer
By: K. Joy Mattingly
Assessment payments are the life blood of every community association, and the recovery of delinquent assessments is the primary goal for every community association. However, many associations, and their management companies, refuse to accept direct payment from delinquent owners once the account is turned over to their attorney for collection proceedings. Many associations place a “collections hold” on the account, which can prevent an owner from making payments through online portals and, in some instances, results in the association’s bank rejecting an owner’s automatic payments. Not only do these actions prevent the association from receiving much needed funds, they can also result in the association running afoul of Florida case law.
By: Robert Caves
In 2017, the Florida Legislature amended the community association statutes to formalize the estoppel certificate process and to establish the amount association were permitted to charge for providing the estoppel certificate. Prior to 2017, the statutes stated that associations could charge a fee for providing an estoppel certificate but did not specify the amount of such fee. Commencing in 2017, the fee for an estoppel certificate was capped at $250, with additional amounts permitted when the unit in question was delinquent or the estoppel certificate was requested on an expedited basis. Further, the legislature provided that every 5 years the Department of Business and Professional Regulation would adjust the amount of the permitted estoppel fees equal to the annual increases for the 5-year period in the Consumer Price Index.
Perlow v. Goldberg
700 Sd.2d 148 (Fla. 3d 1997)
Claims of breach of fiduciary duty is at the heart of THIS CASE. Mr. Perlow brought a breach of fiduciary duty lawsuit against to condominium association directors personally, alleging the directors’ failure to properly administer insurance proceeds from Hurricane Andrew. The trial court dismissed the lawsuit with prejudice and Mr. Perlow appealed.
On appeal, the Perlow Court examined the three relevant Florida statutory acts which govern condominium association governance; to wit: The Florida Condominium Act, The Florida Not For Profit Corporation Act, and The Florida Business Corporation Act. The Court noted that each of the relevant portions of these laws require more than simple negligence before personal liability for monetary damages attached. Lastly, the Court which expressed the longstanding Florida common law proposition that association directors are immune from individual liability, absent a crime, fraud, self-dealing or unjust enrichment. Accordingly, the Perlow Court upheld the dismissal of the breach of fiduciary duty lawsuit.
So why does THIS CASE matter? Florida law is protective of voluntary community association directors. However, that protection is not unlimited. Crime, fraud, self-dealing, or actions of unjust enrichment could lead to personal liability. Additionally, even though Florida law is protective of directors who do the “right thing”, that does not stop expensive lawsuits claiming breach of fiduciary duty from being filed. Because of this, it is important that the association carry adequate insurance to provide a legal defense in case such lawsuits are filed. If you have questions about the actions being taken or uncertainty about actions you are about to take, please consult your community association attorney.
Question of the Month
Q: I recently contacted my condominium association to get an account status for refinancing my mortgage. I was charged $299.00, which seems like a lot. Is this a valid charge?
Mixed Messaging on Solar Panels Penalizes Florida
Homeowners Seeking to Save Energy
Miami Herald
By: Donna DiMaggio Berger
Florida homeowners who thought they were saving money and, perhaps, the environment by installing solar panels have been shocked to learn that many insurers will not insure their roofs if they have solar panels.
In an op-ed for the Miami Herald, Becker Shareholder Donna DiMaggio Berger, dissects the conflict that solar panels can cause between insurers and homeowners. While homeowners do have a right, insurers often cite risk of injury, the use of the building for commercial purposes, and the risk of roof uplift during heavy winds. Until Florida’s legislature acts, environmentally minded homeowners could find themselves stuck in the middle.
Community association boards and managers should ensure that their communities have adequate disaster planning measures in place as hurricane season approaches. To help you in weathering the storm, check out Becker’s Hurricane Guide which provides important tips and information to help protect your community.
For more information, contact your Becker attorney.
CALLING ALL BOARD MEMBERS AND COMMUNITY MANAGERS
As leaders in Community Association Law, we not only helped write the law – we also teach it.
Did you know Becker provides over 200 educational classes per year throughout the State of Florida on a variety of topics ranging from board member certification to compliance, and everything in between? Our most popular classes are now available online!
IMPORTANT NOTE: Our online class library is currently unavailable while we work to process any outstanding CAM credits by the September 30, 2022, license renewal deadline. Our online classes will be available again in early October. Thank you for your understanding.
Can They Do That?
Becker’s “Can They Do That” video series tackles some of the unique problems that homeowners and renters face today. We answer your questions, no matter how far-fetched they may seem. From service animals to nudists in your community, we get to the bottom of it and let you know – “Can They Do That?”
Becker Steps Up to the Mic with Podcast,
‘Take It To The Board with Donna DiMaggio Berger’
Think you know what community association life is all about? Think again. Residents must obey the rules, directors must follow the law, and managers must keep it all running smoothly. Take It To the Board explores the reality of life in a condominium, cooperative or homeowners’ association, what’s really involved in serving on its board, and how to maintain that ever-so-delicate balance of being legally compliant and community spirited. Leading community association attorney Donna DiMaggio Berger acknowledges the balancing act without losing her sense of humor as she talks with a variety of association leaders, experts, and vendors about the challenges and benefits of the community association lifestyle.
CURRENT EPISODES:
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- Royal Service with James Donnelly
- Fiscal Finesse with Nicole Johnson-Pendergrass
- Nuisance or Necessary: Solving the “Pet” Problem with JoAnn Burnett
- The Technology Tango with Brett Fielo
- Community Immunity with David Ramsey
- Considering the Cost of Counsel with Denise Lash
- Rules & Refereeing with Howard Perl
- The Mental Health Challenge with Chris Ayub
- Reserve Funds & Studies with Robert Nordland
- Association Advocacy with Commissioner Mary Molina-Macfie
- The Job of the Journal with Michael Hamline
- HR Hacks with Jamie Dokovna – Part 1
- HR Hacks with Jamie Dokovna – Part 2
- The Art of Community Design with Patty Mowry
- Heart of Service with Stephanie Maher
- The Making of a Manager with Otto Freund
- Happy Holidays, Healthy Communities with Andrew Fortin
- Ensuring Community Association Safety with Platinum Group Security
- Building Basics with Construction Counsel Patrick Howell
- Keeping Cool with Jane Gilbert, Chief Heat Officer, Miami-Dade County
- 2022 Legislative Session in Florida Wrap Up with Yeline Goin, Becker & Poliakoff
- The Current Crisis with Florida’s Real Property Insurance with Andrea Northrup, Vice President of Insurance Office of America (Part 1)
- The Current Crisis with Florida’s Real Property Insurance with Andrea Northrup, Vice President of Insurance Office of America (Part 2)
- The Smoker’s Dilemma with Dennis Eisinger of Eisinger Law
- Assessing Collections with Joy Mattingly, Becker & Poliakoff
- Mapping the Terrain of Landscaping for Community Associations with Brian Steele, Director of Operations, East Coast Facilities
- Successful Community Association Living Starts With the Purchase Decision with Marisa DiLenge, Founder of DiLenge Real Estate Team (Part I)
- Successful Community Association Living Starts With the Purchase Decision with Marisa DiLenge, Founder, DiLenge Real Estate Team (Part II)
- To Lend or Not To Lend with Brewster Cole, First Vice President, Valley National Bank
- Florida Representative Dan Daley on How We Get the Laws We Get
- A Novel Approach: Coaching for Community Association Boards with Carmelo Millimaci, Senior Coach, Ackert Inc.
- Taxes, Taxes, and Fewer Taxes with Marty Kiar, Broward County Property Appraiser, Part 1
- Taxes, Taxes, and Fewer Taxes with Marty Kiar, Broward County Property Appraiser, Part 2
- Parliamentary Procedure: How to Keep Your Meetings on Track with Parliamentarian Jim Slaughter
DID YOU KNOW?
Association Adjusting Provides Free Assessments of Property Damage
If your property has incurred damage from Hurricane Ian, the firm’s affiliated public adjusting company, Association Adjusting, can provide an assessment of your property damage free of charge. Click to watch a video that provides more information on what an insurance adjuster does, and what to do when an insurance company won’t pay enough. Call Association Adjusting at 844-394-2518.
