Florida Community Association Law

Who is David Stern?

2011-02-06T13:35:00.000-08:00

The following article reminds me of the film "Usual Suspects" where Kevin Spacey played a character named Verbal, but in actuality was the evil Keiser Sose..."Who is Keiser Sose? was a classic line. The following is the story of a man known by name and not much else, David Stern; while not as violent or wealthy as the man in the movie, he seems to be just as much as an enigma.

Click here for the story....

Fallout from implosion of Stern law firm

2011-01-10T13:22:00.000-08:00

The rule is the inverse of the factor applied to atomic weapons....for each time multiple of 7 since an explosion, the fallout is 1/10 as deadly....here, for each 7 weeks things seem to be 10 times as bad as they were before.

We have found that there are hundreds of cases being assigned out of that office and almost none of the law firms taking them on has any clue what's going on, so they are dragging things out even longer. result?

Move Move Move, we are always in a race to the Courthouse steps...

District Court Upholds Bad Faith Dismissal with attorney fees

2011-01-07T11:20:00.000-08:00

several years ago, the Firm was among the first in the country to start looking into the "Robo-signers" and, even worse, the mortgage foreclosures that were filed in Bad Faith because the plaintiff was attempting to foreclose a mortgage that it did not have an assignment of the original documents.

We now have over 300 of these actions pending, and recently the Second District Court of Appeal ruled in favor of our right to be awarded attorney fees when a mortgage foreclosure action is dismissed because the plaintiff never had the right to sue in the first place.

The Appellate Court ruled that when a lawyer starts the foreclosure, the client must possess the right to enforce the mortgage against both the borrower and the Association. The Court made it clear that the Association was correct in resisting the foreclosure, and the trial court dismissed the lawsuit (which allowed the Association to move ahead with its own collection action against the delinquent owner and indirectly benefited the delinquent owner by having the mortgage foreclosure dismissed). However, the trial court denied attorney fees for this effort.

The Appellate Court strongly disagreed with the trial court and stated:

"Here, as in Barthlow, J.P. Morgan's mortgage foreclosure action was
unsupported by the material facts necessary to establish the claim because J.P. Morgan
lacked standing when the action was filed. For the purpose of awarding fees under
section 57.105(1), it does not matter that J.P. Morgan may be able to prevail in a new
action to foreclose. Thus the circuit court erred as a matter of law in concluding that
J.P. Morgan's ability to file a new foreclosure action disentitled Country Place to an
award of attorney's fees. Accordingly, we reverse the circuit court's order to the extent
that it denies Country Place's motion for attorney's fees. On remand, the circuit court
shall enter an order in accordance with section 57.105(1) awarding Country Place its
attorney's fees in the amount of $6945"

this is a significant ruling because I believe that we are the only firm who defends these bad faith mortgage foreclosures on a full contingency. The client is never exposed to attorney fees, and the dismissal of the mortgage foreclosure freeze up the Association to demand payment from the delinquent owners and in fact freeze up those owners from a foreclosure as a result of our actions, giving them more time, and perhaps freeing up more assets to be able to meet their obligations to the Association. The cite of the case is as follows:

COUNTRY PLACE COMMUNITY
ASSOCIATION, INC., v. J.P. MORGAN MORTGAGE
ACQUISITION CORP., Case No. 2D10-569

Are emails Official Records?

2010-03-24T16:41:00.000-07:00

Many Directors communicate by email; it's more convenient than the telephone and aids in effective operation of the association. Recently the DBPR came down with a decision on the issue and stated that emails on the private computers of directors are not Official records (compare that to elected officials where all emails are official records)

Humphrey vs. Carriage Park Condominium Association, Inc., Case Number 2008-
04-0230 (Campbell, Final Order, March 30,2009), held as follows with respect to condominium
board emails:

The e-mails requested in this case are those existing, if at all, on the personal computers of individual directors. These are not official records of the condominium association. The property of an individual director does not become the property of the association because of his office on the board.

Just as a statement by an individual director cannot bind the board, an e-mail from or to a director, is not a record of the association. Even if directors communicate among themselves by e-mail strings or chains, about the operation of the association, the status of the electronic communication on their personal computer would not change.

Similarly, an e-mail to an individual director or to all directors as a group, addressed only to their personal computers, is not written communication to the association. This must be so because there is no obligation for a director to turn on personal computer with any regularity, or to open and read e-mails before deleting them.

Because there is no evidence the e-mails requested by Petitioners ever became official records, there can be
no penalty for failure to allow inspection of them

Order of Battle in foreclosures

2010-02-22T15:43:00.000-08:00

As you know, it is the policy of my firm to advance all fees and costs in collections and foreclosure actions. Part of the problem we face is that we have "gone down the rabbit hole," as in Alice in Wonderland. Try as we might, it's nearly impossible to keep up with spending approximately $700 per foreclosure and out-of-pocket costs advanced by the firm to initiate foreclosures against delinquent owners. That poses the question for a number of clients, namely if they provide a cost deposit, can we get there matter faster? The answer is of course, yes. We fund our clients foreclosures out of operating income, and are spending about $5000 a week in the outgoing costs, but we still are finding it hard to keep up. Recently, a client posed an interesting question that I thought I would share with you. Here's the e-mail, followed by my response:

On Wed, Feb 17, 2010 at 9:11 PM, Client name wrote:

Hi Bob,

Thank you for sending us your ledger and allowing us access to the new website. The information has been extremely helpful.

The board would like your recommendations on which units we should pay $700 in costs upfront to expedite the process.

Thanks again for your attention to our concerns. We look forward to continued progress with you.

Sincerely,

Hey (Client) , that is a business judgment; I really don't have the time to analyze each of your delinquencies....I suggest the following as a guide..

Are there rented units? They can all be sued at once and I can have a receiver appointed to collect the rent. I need that info stat.....

Second if there are units in mortgage foreclosure, do I have copies of all complaints? We have found that 60%++ of all foreclosures are brought in bad faith; watch this video (a link to my website, which links to about 30 YouTube videos), in fact watch all my collection videos!!! Maybe we can set aside the foreclosure, allowing a clear path to our own foreclosure...

Any delinquency not in foreclosure is an obvious choice...

As to those in foreclosure go to the Pinellas clerk's web site and see if you can tell how fast or slowly the action is going, and watch my video "foreclosure in a foreclosure", both parts.....

Let me know if I can be of further help...., Bob

CCFJ incites hate speech

2010-02-09T16:50:00.000-08:00

I am a fan of sorts of the site, www.ccfj.net. I appreciate Jan Bergmann's point of view but I disagree with it. Recently I asked him to stop referring to "Gestapo" Boards. That type of reference has no place in disagreements about operations of community associations. When I suggested to him that it is offensive and that many of my relatives were murdered by Germans he took offense as not every German participated in the war (crimes) and there were even some "Righteous Gentiles" and people who actively opposed the Nazis....nevertheless nothing any board has ever done comes close to what the Gestapo paerticipated in.

Jan disagrees with me telling me I need a history lesson; here's my history lesson for everybody who uses "Gestapo" or "Nazi" in ANY political discourse: STOP IT! It adds nothing to the debate and incites violence towards directors who risk enough of theor time to try to do the best for their boards. Let Jan know if you agree with me...

Supreme Court and Protestants: down to one

2009-12-11T14:05:00.000-08:00

Take a look at the Supreme Court: 22% Jewish; 11% Hispanic; 11% African American; 22% 66%...Catholic(!)....when Justice John Paul Stevens retires there will not be a single protestant on the Court. Just a generation ago it was thought that a single Catholic was too many and Heaven forbid a Latino Catholic woman!

Read this interesting article on Slate about the issue of religion and the Supreme Court...

Defamation in the Association

2009-11-20T13:46:00.000-08:00

The topic of what, if anything to do about idiots who say and print defamatory remarks about directors and other in the context of community association operations is far too common.

Here is an actual inquiry and my reply, which accurately sums up my analysis of the issue...

On Fri, Nov 20, 2009 at 3:47 PM, XXXXXXXX wrote:

Dear Bob:

I received a copy of a letter that has been mailed out to [all] homeowners. I feel it is a defamation against me. Do I need Board approval to send it to you for your advise? If there is a charge for this question, please bill me seperately from the Association.....

Hi XXXXX; I'd be happy to take a look at it, but here is my view on the matter. Under Florida law, defamation is an action where the party who prevails cannot recover legal fees. Unless a letter causes you great financial (as opposed to emotional) harm, it is never cost effective to sue.

The case can go on for a year, cost you $50,000 (easily) and what financial damages can you prove and then collect?

If you get fired from your half million dollar a year position as Secretary of the Association (ha!) then it would be worth suing; I suggest you see what kind of reception the letter gets and let's decide what do to....the fact is that most people who read the rants of fools end up concluding that the fools are not worth listening to....

The beginning of the end of segregation

2009-11-17T04:40:00.000-08:00

On Nov. 13, 1956, the Supreme Court upheld a ruling that found the segregated bus laws in Montgomery, Ala., to be unconstitutional. The city of Montgomery, Alabama's bus system forced blacks to sit at the back of the bus and, if all the seats were taken, give up their seats to whites. It began with the arrest of a 15 year old, Claudette Colvin, and culminated with tthe arrest of Rosa Parks. The rest is history...

Mechanics liens and your association

2009-11-15T09:29:00.000-08:00

Every so often it's worth repeating that protecting the association and its' members from payment claims by subcontractors and material suppliers is an important aspect of any contract work subject to the mechanic's Lien laws. Any time certain improvements (repairs and replacements count too) are made in excess of $2500, the Association must take steps to prevent being liable to pay twice for the work and materials. This involves, among other things, recording and posting a Notice of Commencement and obtaining partial and final payment affidavits, and paying attention to those "Notice to Owner" documents that may arrive in the course of the work.

The following case deals with a direct claim by a contractor, but lays out the circumstances under which an unpaid contractor, subcontractor or material supplier can obtain a lien and foreclose on the condominium parcels. Be careful!

TRINTEC CONSTRUCTION, INC., PETITIONER,
v.
COUNTRYSIDE VILLAGE CONDOMINIUM ASSOCIATION, INC., RESPONDENT.

A Writ of Certiorari to the Circuit Court for Miami-Dade County, Mary Barzee-Flores, Judge. Lower Tribunal No. 06-24673.

Elder & Lewis and David R. Elder and Kerry H. Lewis, for petitioner.

Peter V. Fullerton, for respondent.

The opinion of the court was delivered by: Salter, J.

Before RAMIREZ and SALTER, JJ., and SCHWARTZ, Senior Judge.

Trintec Construction, Inc. seeks certiorari from a circuit court order discharging its recorded mechanic's lien claim. We grant the writ, quash the order below, and thereby reinstate Trintec's claim of lien.

I. The Roof Work and the Lawsuit

The respondent, a condominium association, contracted with Trintec for roof repairs to multi-unit buildings in thirteen separately-declared, but collectively-managed, condominiums. The written contract between Trintec and the Association included a recital that the Association was the governing body for all of the affected buildings, and the contract was signed by the president of the Association.

In April 2006, Trintec claimed non-payment and default, and it recorded a claim of lien for approximately $1.3 million the following month. The property description within the lien identified the entirety of each of the thirteen condominiums by recorded declaration, rather than the individual units and common area parcels in the condominium buildings where the work was performed. In late 2006, Trintec filed a lien foreclosure complaint and lis pendens against the Association and the property as identified in the claim of lien.

The trial court initially granted the Association's motion to dismiss the complaint without prejudice, allowing Trintec twenty days within which to amend. That order did not identify any deficiency in, or grant any relief regarding, the recorded claim of lien. The Association then sought and obtained an emergency hearing to "clarify" the trial court's ruling as it pertained to the lien.*fn1 The Association persuaded the trial court to enter a further order dismissing and discharging the lien "without prejudice." The trial court accepted the Association's argument that the individual unit owners were indispensable parties to the lien foreclosure action, and that Trintec's statutory mechanic's lien claim could not proceed without the joinder of those unit owners.

Trintec's motion for clarification and to vacate the further order discharging Trintec's lien was denied in February 2008, and Trintec then filed its petition here.

II. Analysis

This Court initially denied the petition without prejudice to Trintec's right to amend its complaint, claim of lien, and lis pendens to conform to a more specific property description as detailed in Royal Ambassador Condominium Ass'n v. East Coast Supply Corp., 495 So. 2d 932, 935 (Fla. 4th DCA 1986). Trintec moved immediately for clarification of that order, however, based on its concern that by statute it could no longer amend its recorded claim of lien. We then directed the Association to file a response to Trintec's petition and its motion for clarification.

The parties' written submissions disagree regarding the primacy of the condominium law provision regarding mechanic's liens, see section 718.121, Florida Statutes (2006), versus section 713.08, Florida Statutes (2006), the mechanic's lien law requirements themselves. In essence, the question is whether the "owner," for purposes of the lien law's application to a condominium property and improvements to its common elements, is: (a) each and every unit owner in the condominium; or (b) the condominium association created by the declaration. The Association argues that the mechanic's lien law's use of "owner" means each individual condominium unit owner, such that those owners are indispensable parties.

We consider in turn section 718.121(2) of the Florida Statutes; the applicable provisions of Chapter 713; Florida Rule of Civil Procedure 1.221, entitled "Homeowners' Associations and Condominium Associations"; and the decisional law regarding these provisions, in order to harmonize all of them in a fair and practicable way.

A. Section 718.121(2)

Section 718.121, entitled "Liens," protects unit owners by limiting the manner in which liens may be imposed upon condominium property after the declaration of condominium has been recorded. First, section 718.121(1) requires the unanimous consent of all unit owners for the imposition of any lien against "the condominium property as a whole," and it further provides that "liens may arise or be created only against individual condominium parcels." This affords a basis, for example, for an individual unit owner to record a mortgage lien over his or her unit.

Section 718.121(2) addresses mechanic's liens in particular and under the scenario involved here:

Labor performed on or materials furnished to the common elements are not the basis for a lien on the common elements, but if authorized by the association, the labor or materials are deemed to be performed or furnished with the express consent of each unit owner and may be the basis for the filing of a lien against all condominium parcels in the proportions for which the owners are liable for common expenses.

Finally, section 718.121(3) confirms that if a valid lien encumbers multiple condominium parcels, each owner of an encumbered parcel may exercise the rights of a property owner under Chapter 713*fn2 "or by payment of the proportionate amount attributable to his or her condominium parcel" (entitling the payor to a lien release for that parcel).

In this case, clearly the Association authorized Trintec to provide the labor and materials for the roof work. The express consent of each unit owner is thus "deemed" to have been given, and Trintec could properly file a lien against all condominium parcels in the proportions for which the owners are liable for common expenses. See § 718.121(2).

B. Chapter 713

Turning next to the mechanic's lien law itself, we consider the validity and enforceability of the actual claim of lien filed by Trintec. Sections 713.08(1)(d) and (e) specify that a recorded claim of lien "shall" state a description of the real property sufficient for identification and the name of the owner. Trintec's claim of lien described the entire condominium by identifying each declaration of condominium in its entirety, and it identified the owner as "Countryside Village Property Owners Assoc[iation]" at the address of the Association's designated representative identified in the contract.

Section 713.08(4)(a) provides that an omission or error within a claim of lien "shall not, within the discretion of the trial court, prevent the enforcement of such lien as against one who has not been adversely affected by such omission or error." The Association's response commendably concedes that it cannot show any such adverse effect in this case.*fn3 Section 713.08(4)(b) permits the amendment of a lien "during the period allowed for recording such claim of lien, provided that such amendment shall not cause any person to suffer any detriment by having acted in good faith in reliance upon such claim of lien as originally recorded." Because that period had expired,*fn4 Trintec could not record an amended claim of lien adding the unit owners at the time the trial court discharged Trintec's lien. Section 713.08(4)(c) directs that a claim of lien "shall be served on the owner," raising again the need to determine the "owner" of the condominium roofs.

Section 713.11, entitled "Liens for improving land in which the contracting party has no interest," precludes the attachment of a mechanic's lien to land if the contracting party for the labor and services has no interest in that land. In this case, however, the Association has an "interest" in all of the condominium parcels--the declaration grants the Association unique rights regarding the common elements, and Chapter 718 permits the Association to impose and collect liens on the units for unpaid assessments.

C. Florida Rule of Civil Procedure 1.221

A further source of guidance is found in Florida Rule of Civil Procedure 1.221, entitled "Homeowners' Associations and Condominium Associations." After control of a condominium association has been turned over by the developer to the unit owners, the association is a proper party to "institute, maintain, settle, or appeal actions or hearings in its name on behalf of all association members concerning matters of common interest to the members, including, but not limited to: (1) the common property, area, or elements; (2) the roof or structural components of a building, or other improvements . . . ." Fla. R. Civ. P. 1.221.

So it is clear that, if the Association is unhappy with the roof work performed by Trintec, the Association can bring an action as a single plaintiff on behalf of the affected unit owners. The unit owners themselves need not join that lawsuit as plaintiffs. The issue before us, however, is whether the converse applies--if Trintec sues the Association, may it sue the Association as the representative of all affected unit owners without naming and serving each such unit owner as a separate defendant? The Association maintains that due process and the lien statute require the identification of each unit and the joinder of each unit owner in any such action. That argument seems reasonable, particularly in a state in which many unit owners spend part of the year away from their unit and in which condominium associations are occasionally dysfunctional. If the Association is correct on this point, the statutory period for amending the lien and filing against each owner has long since expired and Trintec will no longer have a statutory lien.

But Trintec's argument is also reasonable--the Association is the democratically-elected representative of the owners; the owners empowered the Association to enter into a contract; and the cost and delay inherent in identifying, pleading against, and serving a multitude of owners (and then substituting a new owner for a predecessor during the pendency of the case as units are sold or otherwise transferred) would be substantial. Moreover, the Association has a statutory duty to keep the unit owners apprised of the lawsuit and their exposure:

In any legal action in which the association may be exposed to liability in excess of insurance coverage protecting it and the unit owners, the association shall give notice of the exposure within a reasonable time to all unit owners, and they shall have the right to intervene and defend.

§ 718.119(3), Fla. Stat. (2006) (emphasis added).

Just as the Association was empowered to contract for the roof work for the benefit of the unit owners, then, it seems that the Association is the logical entity to manage and defend the lawsuit relating to that work. If the unit owners decide to exercise their statutory rights under Chapter 713, they can do so, and they have an absolute right under section 718.119(3) to intervene in the lien foreclosure and contract lawsuit brought by Trintec.

In adopting the precursor to Florida Rule of Civil Procedure 1.221, the Florida Supreme Court concurred with the position of The Florida Bar's Consumer Protection Law Committee that the rule, "expressly declaring condominium association members a class as a matter of law without the necessity for pleading or proving the traditional seven class action elements," adequately protects the individual association members "from capricious or arbitrary class actions by the governing authority of the association through provisions of Chapter 718 . . . as well as decisions which impose a fiduciary duty upon the governing body of such associations to afford due process and equal protection to its members." In re Rule 1.220(b), Fla. Rules of Civil Procedure, 353 So. 2d 95, 97 (Fla. 1977).

D. Applicable Case Law

In Graves v. Ciega Verde Condominium Ass'n, 703 So. 2d 1109 (Fla. 2d DCA 1997), the Second District considered a similar set of facts. Graves entered into a contract with Ciega Verde Condominium Association to repair exterior siding on the condominium buildings. Graves filed his mechanic's lien foreclosure claim and lis pendens against the unit owners, however, as well as the association. He sued the association as class representative for all unit owners on the basis of rule 1.221. The association alleged in its affirmative defenses that the claim of lien was improperly served on the unit owners. Graves prevailed on a companion contract claim in arbitration, and then moved in the circuit court to confirm that award and set a trial date for the lien foreclosure claim. Graves obtained a judgment and a sale date, but new counsel for the unit owners then persuaded the trial court to dismiss the individual unit owners because they had not been served within 120 days from the filing of the complaint. By that time, Graves could not bring a new action against the individual unit owners because the applicable statute of limitations had expired.

The Second District reversed, holding that the trial court "obtained jurisdiction of the unit owners because they constituted a class because of their membership in the Ciega Verde Condominium Association." Graves, 703 So. 2d at 1111. The Court held that Graves was not required to join or serve the individual unit owners. It found that "[t]he concerns of due process are sufficiently addressed by the fiduciary duty that the board of directors have [sic] to the members of the association." Id. at 1112.

In this case, Trintec did not name or join the individual unit owners (as Graves had), but rule 1.221 and the Graves decision do not require those procedural steps. Indeed, in Cooley v. Pheasant Run at Rosemont Condominium Ass'n, 781 So. 2d 1182 (Fla. 5th DCA 2001), the Fifth District affirmed a trial court ruling that the unit owners were not proper defendants in a personal injury lawsuit brought against the condominium association for injuries allegedly sustained upon common elements. The trial court dismissed the claims against the unit owners with prejudice and indicated that their joinder might be subject to fees under section 57.105 of the Florida Statutes. Id. at 1185 n.1.

Finally, in Four Jay's Construction, Inc. v. The Marina at the Bluffs Condominium Ass'n, 846 So. 2d 555 (Fla. 4th DCA 2003), the Fourth District reversed a final judgment that dismissed with prejudice a balcony contractor's claims for breach of contract, quantum meruit, unjust enrichment, and promissory estoppel against all owners of record of individual condominium units as a class. The condominium association had been named and served as the class representative. In that case, there was apparently no claim for the foreclosure of a mechanic's lien, but the Court held that "unit owners may be sued, pursuant to [rule 1.221], with the association as representative." Id. at 556.*fn5

Upon consideration of the applicable condominium and mechanic's lien provisions, rule 1.221, and prior decisions, it seems clear that Trintec is entitled to proceed against the Association as the representative of all unit owners. Trintec is not required to join the individual owners as indispensable parties. As noted, the unit owners are free to intervene in the lawsuit below. They are also free to exercise their rights under Chapter 713, including the right to "bond off" their proportionate share of the lien amount*fn6 to facilitate a sale, refinancing, or other transaction. The unit owners also have remedies against the Association and its officers and directors if the lien against their unit resulted from improper action or omission of the Association.

III. Conclusion

This is an appropriate case for the exercise of our certiorari jurisdiction. The competing interests of the contractor and the individual unit owners are substantial and each worthy of protection; it is understandable that the trial court would consider the unit owners' interests paramount. Nevertheless, the order discharging Trintec's recorded lien departs from the essential requirements of the law, as detailed above, and relief is necessary to prevent the loss of the contractor's statutory remedy. We therefore grant the petition and quash the order discharging Trintec's claim of lien, with the result that the claim of lien is reinstated.*fn7

Petition granted; order of discharge quashed.

Opinion Footnotes

*fn1 The Association's motion to dismiss requested dismissal of the complaint; it did not request the discharge of Trintec's claim of lien. The Association did not file a separate motion regarding its "emergency" request for clarification of the order dismissing the complaint.

*fn2 These rights include, for example, the right to "bond off" the lien claim (section 713.24), and rights to a final affidavit (section 713.06), and a list of subcontractors and suppliers (section 713.165).

*fn3 If the Association had alleged an adverse effect, an evidentiary hearing would have been required to resolve that question of fact. See Royal Ambassador, 495 So. 2d at 935.

*fn4 Section 713.08(5) allowed 90 days from the date Trintec's "final furnishing of the labor or services or materials." Trintec's original claim of lien was recorded during that period.

*fn5 The Fourth District certified to the Florida Supreme Court as a question of great public importance [w]hether rule 1.221 authorizes plaintiffs to sue individual owners of condominium units (to the extent of their interest) as a class of defendants, by suing the condominium association as class representative, as distinguished from simply suing the condominium association as contracting party, in a controversy concerning matters of common interest.
Four Jay's, 846 So. 2d at 559. The supreme court did not accept jurisdiction.

*fn6 It bears repeating that a unit owner's unit is only subject to a non-recourse percentage of the total lien amount (if ultimately allowed by the trial court) "in the proportion for which [the] unit is liable for common expenses." Royal Ambassador, 495 So. 2d at 934. A unit owner is not personally liable for any obligation incurred by the Association beyond "the value of his or her unit." § 713.119(2), Fla. Stat. (2008).

*fn7 Trintec's amended complaint, if filed, is not before us. We note that the original complaint fails to include a specific allegation identifying the Association as the representative of the class of condominium unit owners pursuant to rule 1.221, or to confirm Trintec's representations in its submissions to this Court that the lien claimed on each unit is limited to that unit's proportionate share of common expenses. It would unquestionably aid the trial court, any further appellate review, and any examiner of title to an individual unit, for Trintec to provide express allegations on each of these points in an amended pleading.

What directors can learn from the Supreme Court

2009-11-14T15:46:00.000-08:00

This link relates to for profit directors, as well as a good overview of the Supreme Court and how it works. Its worth a read. Many directors of community associations do not understand the magnitude of the asset base they are responsible for. Even a "small" community with 30 homes each worth $200,000 is responsible for operating a $6 million asset. This goes to my saying that professional management is not a cost, but an asset, so you can be prepared to be at your best at your meeting....click on the highlighted underlined sentence above!!!!!

Cutting services to delinquent owners

2009-11-02T14:46:00.001-08:00

In this economic climate clients are frequently asking if certain services can be shut off. Most frequently, we are asked if the cable television paid for on a bulk basis can be shut off in a condo community. The answer is "no" because that is not a remedy granted by law. Condominiums only exist because there is a law that provides for their existence and the rights and remedies of owners and associations are set forth therein. The law simply does not allow it. Recently an HOA amended its documents to provide for authority to install individual water meters and cut off water to those people who did not pay. A trial judge refused to allow the association to do so, apparently for equitable reasons. Perhaps the judge's thoughts were the same as the Supreme Court of New Hampshire which recently ruled that an owner cannot shut off the cable of a non-paying tenent as it amounted to what is known as "constructive eviction."

read on---

CONCORD, N.H. -- The New Hampshire Supreme Court has ruled that cable television is a protected utility service under state law that can't be shut off during landlord-tenant disputes.

The court on Friday reversed a trial court judge's decision to dismiss a claim by Christopher Lally, who was being evicted by his landlord last year and lost the cable connection. The landlord, Lauren Flieder, argued that the cable provider told her Lally's apartment was receiving the service through an illegal connection, so she disconnected the wire.

The state Supreme Court found the law regards cable TV as a protected service and that Flieder's action basically amounted to a self-help eviction, which is illegal in most states, including New Hampshire. It sent the case back to the trial court for further review.

Deed restriction issues..

2009-11-01T12:13:00.000-08:00

I just do not understand how people think they are not subject to the deeed restrictions they are subject to. Violators become the subject of court action and newspaper articles...I recall that Dr. Faye mayberry did her thesis on the issue of how many read the restrictions that come with condominiums (prospectus, sales contract declaration,. etc...). The percentage was...

Less than TWO!

Recruiting HOA Board Members: How to Succeed

2009-10-30T12:32:00.000-07:00

One of the most difficult parts about community association operations is how to groom leadership for the future. While my friends at www.ccfj.net and and some of their followers may believe that directors all need to be thrown out and that most boards are "Condo Commandos" the vast majority of directyors I jhave dealt with in almist 30 years(!) of this practice would gladly step aside if someone half as dedciated and hard working as they are would volunteer.

From a Political Science perspective, I cna see how Communism failed, partly because the party could never afford to groom leadeers, as the leaders would then be powerful enopugh to replace one set of tyrants with another, commmunity associations are more like local governments in New hamoshire, where citizen initiatives and citizen inout are apramount.

Of course there is the element of complexity that has been introduced by our friends in the Legislature over the past 10+ years, as well as the DBPR, and the notion of th e"carefree lifestyle" that has always sold people on Florida, when it comes right down to it, it seems that the more dedicated job the directors do and the more well run the community is, the less likely it is that others will take their turn at the helm. Read on for how one community did it....

This from our friends at www.HOALeader.com

For a new article we asked board members from around the country to share their tips on recruiting good HOA board members. This week's tip is from Karla Jo Helms, a board member at Sunset Point Town Homes in Clearwater, Fla.

She told us, "I get people to volunteer by picking the happiest, most productive people I know--because in my observation, happier, busier people get things done and complain the least-- and elicit their help by pushing their "responsibility buttons."
In other words, most people want to help, so asking them to help is pretty easy.

"But I also tell them that one thing to think about is that if they don't help, someone else will step up to do the job in a
way that could make their lives hell. It's happened. You know the people who have nothing better to do than to sit on their porch or by their window and document every tiny infraction, making the neighborhood a living hell. That usually does the trick.

"Another key factor is the property manager. We hire a real stickler for the law and any rules that could get us in trouble with state or federal agencies if not followed. I like that. It's his job to make sure rules are followed, handle most everything for the board, keep us in line, and let us know the law. That's a big factor in getting volunteers.

"If you don't have a property manager, the board's workload is much greater, and your likelihood of getting and keeping
volunteers will be much lower. We pay $500 per month for ours, but he saves us soooo much money every year with insurance negotiations, hiring workers, handling all our potential liability issues, and so on. And I don't get homeowners coming to my door to tell me anything. It all goes to the property manager."

Karla Jo concluded, "It didn't used to be this easy for us. The recipe for us has been having great volunteers who get things done, reserves in the bank, and making sure the laws and rules are followed. It's a pretty happy neighborhood now."

Find out what four more board members and association experts had to say about their experience. Read our new article:
http://www.hoaleader.com/members/350.cfm

What else is new? Defective construction shows up in NYC condos

2009-10-25T11:04:00.000-07:00

This is from the New York Times:

October 25, 2009

Your New Condo Leaks? Join the Club

By VIVIAN S. TOY

ROOFS and windows that leak whenever it rains.

Heating and air-conditioning units that can’t quite heat or cool the entire building.

Balconies with flaking concrete and wobbly railings.

These kinds of complaints have become more and more common in recent months, according to lawyers and engineers who represent owners of sleek new condominium units across the city.

They say the wave of development in New York City that started in 2004 and crested in mid-2007 has resulted in a wave of accusations about defective construction and building design.

“There’s always an underlying number of lawsuits about defects,” said Stuart M. Saft, a real estate lawyer and the chairman of the Council of New York Cooperatives and Condominiums, “but about a year ago the number started to increase. And over the next two years there’s going to be an explosion, because of all the buildings that were built at about the same time.”

He noted that buildingwide problems often don’t become apparent until people have lived in a building for a while. Legal action is often delayed because sponsors typically control a condo board for a year or more after a building opens and can block attempts by residents to file complaints.

But since condo owners have a three-year statute of limitations for suing a developer or construction contractors for negligence, many people who moved into new buildings in 2007 — when about 7,000 condos came on the market — are realizing that they will soon run out of time.

A negligence lawsuit charges a sponsor or contractor with causing harm or damage to condo owners. If the owners believe a written agreement has been violated, another legal strategy is to sue a sponsor for breach of contract. The statute of limitations for breach of contract is six years.

Lawyers at several firms said that the volume of condo defect work had doubled in the last year, adding up to dozens of buildings with construction problems. In most cases, the condo owners hire lawyers to add muscle to their complaints, in the hope of getting the necessary work done. In a few instances they have filed suits. Lawyers say that condo owners are reluctant to talk about the defects in their buildings, fearful that publicity will decrease the value of their properties.

Water leaks and climate control problems top the list of complaints. Many of the recently built glass towers are especially prone to temperature issues, because air-conditioning units are too small to combat the punishing summer sun, and heating systems can’t make up for a lack of insulation during the cold months.

But lawyers and engineers said that they had also come across buildings with more serious defects that violate the city’s building code. The most common code violation involves inadequate fire-stopping components — building materials that are used to fill empty spaces where fire or smoke can spread between floors and apartments.

Howard L. Zimmerman, an architect whose firm is checking about 35 new condo buildings for construction problems, said that his workers had found fire-stopping violations in about a third. He said his firm has clients in buildings of five to 300 units, throughout Manhattan and in Brooklyn and Queens.

According to Mr. Zimmerman, the most common problem is found behind the walls of apartments, where, say, no caulking material has been used to seal a two-inch space between a pipe and a concrete wall. That unsealed space, he said, “is where smoke and fire can travel quickly,” and it could also allow smells to float through a building. “Odor migration has been a tremendous problem, and if you buy a $3 million apartment, you probably don’t want to smell your neighbor’s smoking or the restaurant downstairs.”

Mr. Zimmerman says that the Department of Buildings can miss these kinds of lapses because architects or engineers hired by the sponsor are allowed to vouch for certain aspects of construction. “There was supposed to be somebody on the job who signed off that this was all installed before the walls got covered up,” he said. “As nutty as it sounds, just because you have a certificate of occupancy doesn’t mean you have a building that’s code compliant.”

He and real estate lawyers said that even when a condo board discovers building code violations, it is often reluctant to alert city officials because the board then becomes responsible for correcting the problem as well as for paying any fines.

James P. Colgate, an assistant commissioner at the Department of Buildings, says that condo boards are not under any obligation to report code violations. But when they do, the department may decide to investigate whether an engineer or architect improperly certified work at the building.

As for problems like water leaks, Mr. Colgate said that a certificate of occupancy was not the same thing as a guarantee. Such a document “certifies that the building is substantially in compliance with rules governing its construction,” he said, “and even if workmanship in a building may not be superb and you get those kinds of issues, the building might still be in compliance.”

When a building is clearly out of compliance, talk quickly turns to lawsuits.

Steven D. Sladkus, a real estate lawyer at Wolf Haldenstein Adler Freeman & Herz, said that he represents an Upper East Side building where the developer put only one layer of wallboard between the floors, instead of the two layers required by city code to create a fire-resistant barrier. “The board knows that’s a serious code violation, and it’s prepared to do the work and sue the developer and hope for reimbursement,” he said.

Mr. Sladkus said that the board hoped that the New York State attorney general’s office, which oversees condominium offering plans, would press the sponsor to do the work.

It will be expensive and disruptive, he added, since contractors will have to remove ceilings and recessed lighting to install the fire-stopping materials.

At the Slate Condominium, a 12-story glass-walled tower in Chelsea where in 2007 one-bedroom apartments sold for as much as $1.4 million and two-bedrooms for as much as $1.9 million, the condo board filed a lawsuit in March accusing the sponsor, Chelsea Luxury Condos, of using defective materials and of not living up to promises made in the offering plan.

“The unit owners have not only personally observed a number of defective and unsafe conditions in the building, but they have suffered a plethora of dangerous conditions,” the suit states. The complaint lists incomplete fire-stopping in hallways, and uneven floors and water damage in various places. Problems common to individual units include warped floors and balcony doors, nonworking electrical outlets, rusted kitchen faucets and water leaks.

Most people moved into the 26-unit building in 2007, and the apartment owners took control of the condo board in April 2008. Debra Guzov, the lawyer representing the condo board, would not comment on the case.

Anna A. Higgins, the lawyer representing the sponsor, said the sponsor had hired its own engineer to inspect the building, and “our position is that the problems listed are mostly punch-list items and are not considered defects, but things that are under warranty and therefore the responsibility of the subcontractors.”

The sponsor has, in turn, brought several of its building and electrical contractors into the suit as third-party defendants, charging they were negligent. “This is a reputable building and company,” Ms. Higgins added. “And they take these matters very seriously.”

The sheer volume of new buildings that went up during the condo construction boom is the main reason for the increase in defective buildings, lawyers and engineers said.

“It happens in every cycle,” Mr. Saft said. “At the beginning of the cycle, workers are underemployed, then suddenly they’re busy, and at the height, there are too many projects and not enough workers. Then what happens is shoddy workmanship, and when you have sponsors running out of money, they start to cut corners.”

Andrew P. Brucker, a real estate lawyer with the New York law firm of Schechter & Brucker, said that the boom had prompted people with no experience in real estate to start building condos. “When the market was hot,” he said, “anybody who had a couple bucks suddenly became a developer, thinking they’d get rich. When the market was strong, if you complained about something, sponsors would fix it, but then the market started to tank and brand-new buildings aren’t selling out, so there’s no money to do that anymore.”

The more unusual problems that Mr. Brucker has encountered include a building whose developer built an illegal pool and another whose developer put the building’s electrical system in a closet inside an apartment. The pool, he said, was never approved by the Buildings Department and may have to be removed. The electrical closet may also be illegal, because it may not be easily accessible in an emergency. In both cases, the solutions will entail costly projects.

When it becomes clear that a building has problems that go beyond punch-list items — a kitchen drawer, say, that won’t stay shut or a closet door that sticks — the first thing owners should do is hire an engineer.

“You have to get a top-to-bottom assessment of the building — the interior, the exterior, all the systems,” Mr. Sladkus said. “That creates a record and tells the board where things stand.”

The sooner this is done, the better, he added, because it takes away a sponsor’s potential claim that problems were caused by the apartment owners. Depending on the size of the building, an engineering report could cost $10,000 to $50,000.

Filing a lawsuit is usually a last resort because it can be costly and take years to resolve. Lawyers say the condo board’s first course of action should be to try to negotiate with the sponsor, with a goal of having the sponsor make the repairs or pay a settlement to get the work done.

If that fails, lawyers said, a condo board can file a complaint with the attorney general’s office, which can help to mediate a dispute and press developers to make repairs. The office can, but rarely does, file its own lawsuit against a developer. But lawyers say that the attorney general has been inundated with complaints; it can take months just to find out if the office will take on a building’s case.

“The attorney general will look at life, health and safety issues and things like whether a temporary certificate of occupancy is current,” said Jeffrey S. Reich, another real estate lawyer at Wolf Haldenstein. “But it’s hard to get them motivated to roll up their sleeves on minor issues.”

Lawyers believe that the attorney general’s office is more likely to act on behalf of smaller buildings, because it recognizes that litigation could be prohibitively costly for buildings with relatively few unit owners.

That presumption is well illustrated by one case in which Mr. Reich represents the owners in a large luxury building that he had hoped the attorney general would see to. But, he said, “the sponsor’s attorney went to the attorney general and said they should not take the case because the apartments are larger than regulation basketball courts and the owners are titans of finance who are fully capable of pursuing it in court.”

Mr. Reich said he was able to persuade the office to keep pursuing the complaint only because an aspect of law was involved that could not be addressed in court because it fell under the attorney general’s jurisdiction.

A spokeswoman for the attorney general encouraged condo owners facing building problems to contact the office’s real estate finance bureau.

The attorney general’s Web site states that when the office receives a written complaint about a building, “we usually demand that the sponsor provide a written response to the allegations. Sometimes, this alone causes the sponsor to repair the defects.”

If that fails, the site states, the office may send its own engineers to inspect the property or have the two sides jointly hire an engineer or architect to evaluate the building and suggest solutions.

Sometimes, even when an early settlement offers the promise of resolution, unit owners still end up in court.

At the Broadway Arms, a 12-unit building that opened in Williamsburg, Brooklyn, in late 2004, the owners took control of the condo board fairly quickly. When they noticed the leaking roofs, shoddy balcony railings and a faulty ventilation system in 2005, they hired an engineer to review the building.

By July 2006, the condo board had reached an agreement with the sponsor, Broadway Driggs Associates, to fix many of the problems the engineer had found. But Alan Winkler, the condo board’s lawyer, said that the work was never completed and that the board decided to sue the sponsor in late 2008 for failing to live up to the offering plan and the settlement agreement.

Mr. Winkler said that the sponsor had repaired the balconies and done some work on the building’s upper roof, but that a lower roof still had leaks, and various problems persisted in the common areas. “At this point,” he said, “there shouldn’t be any contention as to whether this work needs to be done.”

The sponsor denied the charges in court filings and has accused its building contractor of walking off the job. The contractor in turn has denied that in court papers and has claimed that the sponsor owes him $200,000.

Charles L. Mester, the sponsor’s lawyer, said, “A lot of the problems were fixed and it’s just an opinion of some other experts that what was done should have been done another way.” He added that the $200,000 figure “has no basis in anything.”

Five years after they moved into the building, the owners “would like to resolve this quickly,” Mr. Winkler said. “But they want to make sure they get the value they were promised for their units when they bought it.”

Home

ARC Guidelines for HOA's

2009-10-12T06:59:00.000-07:00

In July 2007 the Legislature modified the requirements for enforcable ARC guidelines: I have a video explaining the issue , click here.

This from a California court:

Member Must Pay Association's Attorney Fees

Facts: A member obtained the approval of the association to build a house, a retaining wall, and a barn on his lot located in the community. The governing documents require that work on any construction projects must be completed within a year of approval. Even so, two years after approval, the member still had not begun construction of the house, and the association gave the member notice that it would begin mediation proceedings to resolve the construction delays. The member did not heed the notices, the mediation proceedings fell through, and the association sued the member, requesting an injunction to require him to stop construction on the improvements on his lot and to substantially build the house within the year. The association requested further that if the member did not substantially build the house within the year, then the association would have access to the member's property and would be able to tear down the improvements on his lot.

The trial court, in its ruling, provided specific deadlines for the member to meet. If the member did not meet these deadlines, the association was allowed to come onto the property and demolish the half-completed structures. The court also awarded attorney fees to the association. These orders were made pursuant to California state law, which states that in an action to enforce governing documents, the prevailing party shall be awarded its attorney fees. Because the association did not receive the exact injunction it requested, the member appealed the attorney fee award.

Ruling: A California appeals court agreed with the lower court's decision to award the association with attorney's fees.

Reasoning: The appeals court ruled that the trial court's ruling embodied the association's “main” litigation objective. The association clearly received a more favorable judgment at trial, one that contemplated demolition. And the court stated that even after the modified injunction, demolition of the member's structures remained a substantial possibility.

My Take: members always almost always take the position that "It's better to ask for forgiveness than permission" and argue that an order requiring removal of an improperly built home constitutes "economic waste" I beg to differ; if you want enforceable requirements, get squared away ASAP with your policy under the law, set objective standards, and enforce them...REMEMBER: there is no such thing as "ugly" any more....

Insurance Company not required to defend personal injury suit

2009-10-12T06:55:00.000-07:00

This from my friends at Community Association Management Insider

This must have been a horribly maintained" pool....

Facts: A member was injured as a result of exposure to unsafe sanitary conditions in the community swimming pool. Specifically, the member contracted a viral infection from contaminants in the swimming pool's water. The viral infection was identified as the coxsackie virus, which was contracted from ingesting the community's swimming pool water. According to an expert's report, proper chlorination of swimming pool water is an effective way to kill harmful microbes, including the virus that caused the member's injury.

The member sued the association for damages, and the insurer then asked a judge for a ruling without a trial stating that it had no duty to defend the association against the member's lawsuit. The insurer relied on the language of the association's policy. The policy contained a pollution exclusion that stated that the insurance did not apply to “bodily injury which would not have occurred but for the discharge release or escape of pollutants at any time.” The policy defined “pollutant” to mean any solid, liquid, gaseous contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals, and waste.

Ruling: The Florida district court granted the insurer's request for a judgment without a trial in its favor.

Reasoning: As defined under the plain language of the policy, the meaning of the term pollutant includes contaminant. And the court stated that cases from its jurisdiction have ruled that similar pollutant clauses encompass microbes such as the ones that injured the member. The evidence showed that the substance in the swimming pool was a viral contaminant and a harmful microbe. Therefore, the pollutant exclusion applied in this case.

First Specialty Ins. Corp. v. GRS Mgmt. Assocs., August 2009

Some sanity in foreclosures

2009-10-06T15:24:00.000-07:00

We have often been before judges who have "compassion" for "the little guy" when foreclosures take place; often these become situations where "helping " one person burdens others who actually are responsible and pay. Here's what the Third District Court of Appeal had to say about one trial judge who wanted to show "compassion"...emphasis is mine...

Third District Court of Appeal

State of Florida, July Term, A.D. 2009

Opinion filed September 30, 2009.

Not final until disposition of timely filed motion for rehearing.

________________

No. 3D09-2405

Lower Tribunal No. 08-7159

________________

Republic Federal Bank, N.A.,

Petitioner,

vs.

Joseph M. Doyle and Blanca Alicia Doyle,

Respondents.

On Petition for Writ of Certiorari to the Circuit Court for Miami-Dade

County, Valerie Manno Schurr, Judge.

Carlton Fields and Matthew J. Conigliaro (St. Petersburg) and Charles M.

Rosenberg, for petitioner.

Barry L. Simons, for respondents.

Before GERSTEN and LAGOA, JJ., and SCHWARTZ, Senior Judge.

SCHWARTZ, Senior Judge.

We treat the petition for writ of mandamus as one for certiorari and deny the

petition.

Following a November 4, 2008 final judgment of foreclosure, and after

several delays – caused in part by the filing and the dismissal of a frivolous

bankruptcy petition on the eve of a previous sale and a foul-up or two in the clerk’s

office – the trial court on July 29, 2009, entered an order fixing August 27, 2009,

as the date of the sale. On motion of the defendants, however, apparently on the

basis that in the case, like this one, of the foreclosure of a residence she routinely

grants continuances of the sale rather than see “anybody lose their house,” the trial

judge granted a continuance until October 1, 2009. fn.1

We deny the petition.

Although granting continuances and postponements are, generally speaking,

within the discretion of the trial court, the “ground” of benevolence and

fn. 1 The court’s remarks on the issue included the following:

I was trying to make everybody happy.

. . . .

We have so many foreclosures here and I give

continuances on these sales. I just do.

. . . .

Unless it is so abundantly clear to me that it is just an

abuse of the process, I give extensions on these because I

don’t want anybody to lose their house. If there is any

chance that he can do this deal, get the money and try to

save this home, you know, people are having a hard time

now. They are having a difficult time. Everybody

knows it. Businesses are failing. People are losing

money in the stock market. You know, unemployment is

high. It’s just everybody knows that we are in a bad time

right now and I hate to see anybody lose their home.

compassion fn.2 (or the claim asserted below that the defendants might be able to

arrange a sale of the property during the extended period until the sale) does not

constitute a lawful, cognizable basis for granting relief to one side to the detriment

of the other, and thus cannot support the order below: no judicial action of any

kind can rest on such a foundation. This is particularly true here because the order

contravenes the terms of the statute that a sale is to be conducted “not less than 20

days or more than 35 days after the date” of the order or judgment. § 45.031(1)(a),

Fla. Stat. (2008). See also Kosoy Kendall Assocs., LLC v. Los Latinos Restaurant,

Inc., 10 So. 3d 1168 (Fla. 3d DCA 2009); Comcoa, Inc. v. Coe, 587 So. 2d 474

(Fla. 3d DCA 1991).

The continuance thus constitutes an abuse of discretion in the most basic

sense of that term. As the Court stated in Canakaris v. Canakaris, 382 So. 2d 1197,

1203 (Fla. 1980):

The trial courts' discretionary power was never intended

to be exercised in accordance with whim or caprice of the

judge nor in an inconsistent manner. Judges dealing with

cases essentially alike should reach the same result.

Different results reached from substantially the same

facts comport with neither logic nor reasonableness. In

this regard, we note the cautionary words of Justice

Cardozo concerning the discretionary power of judges:

The judge, even when he is free, is still not

wholly free. He is not to innovate at

pleasure. He is not a knight-errant roaming

at will in pursuit of his own ideal of beauty

fn. 2 See also the term referred to in Cooper v. Brickell Bayview Real Estate, Inc. 711

So. 2d 258, 258 n.1 (Fla. 3d DCA 1998).

or of goodness. He is to draw his inspiration

from consecrated principles. He is not to

yield to spasmodic sentiment, to vague and

unregulated benevolence. He is to exercise a

discretion informed by tradition, methodized

by analogy, disciplined by system, and

subordinated to “the primordial necessity of

order in the social life.” Wide enough in all

conscience is the field of discretion that

remains.

B. Cardozo, The Nature of the Judicial

Process 141 (1921).

See Storm v. Allied Universal Corp., 842 So. 2d 245, 246 n.2 (Fla. 3d DCA 2003)

(trial judge refused to preclude plaintiff, who misled and deceived the defendants,

the jury and the trial court, from further litigation “to give the Plaintiff the break of

his life”); Arango v. Arango, 450 So. 2d 583 (Fla. 3d DCA 1984) (trial judge

reduced attorney’s fee award to spouse of attorney on ground of “professional

courtesy”). See also Flagler v. Flagler, 94 So. 2d 592, 594 (Fla. 1957) (“[C]ourts

of equity have [no] right or power under the law of Florida to issue such order it

considers to be in the best interest of ‘social justice’ at the particular moment

without regard to established law.”); Nordberg v. Green, 638 So. 2d 91 (Fla. 3d

DCA 1994) (trial court may not decline to follow controlling law on ground it

considers its application "inequitable" in particular case), review denied, 649 So.

2d 233 (Fla. 1994).

Although we thus thoroughly disapprove of the order, in view of the fact

that the postponed sale is due to take place within a few days of this decision, no

useful purpose will be served by formally quashing the order or ordering the sale to

take place on an earlier date with all the procedural complications which would

then result. For that reason alone, relief will be denied. We do emphasize that

there are to be no further postponements of the sale.

Petition denied.

Aas usual Israel gets no credit...

2009-09-25T07:17:00.000-07:00

As seen in www.strategyPage.com:

COUNTER-TERRORISM: No Credit Where Credit Is Due

September 25, 2009: For political, diplomatic and anti-Semitic reasons, it's not likely that the Israelis will get the credit they deserve for the defeat of Islamic terrorist groups throughout the world. But it was Israeli concepts and tactics that helped bring Iraq IED (roadside bomb) casualties down from a high of 84 a month in May of 2007, to a low of 9 in May of 2008. While the new armored vehicles (MRAPs) and other technology (jammers and UAVs) played a role, it was the Israeli concept of going for the brains behind the bombs, that tore the heart out of the Islamic terrorist organizations in Iraq. The same approach is being used successfully elsewhere, from Somalia, to Saudi Arabia, to Afghanistan and on to the Philippines and Indonesia. Islamic nations tend to credit the United States (if they credit any foreigners at all) for these successful tactics. But it was Israel that pioneered this approach, and made it clear that it worked, and how.
The armed forces of the U.S. and Israel have long worked together, to exchange tactics, techniques and technology. One of the items the Israelis shared was the tactics they developed to defeat a Palestinian suicide bombing campaign that began in 2000 (after Palestinian radicals refused to accept a recently negotiated peace deal).
The Palestinian terrorist groups still say they are going to destroy Israel. But as a practical matter, the current round of Palestinian terrorist violence is over. You can see this by the sharp decline in successful terrorist attacks, and the frequent pronouncements from the terrorists groups that they are going to behave, for a while anyway. What the terrorists really want is to avoid any more of the Israeli tactics that shut down their terrorist operations. This included going after terrorist leaders and technical specialists, and either capturing or (failing that) killing them. Raids and air attacks were made against buildings used by the terrorists, and tight security on Israelis borders were instituted. This last measure crushed the Palestinian economy, which put popular pressure on the terrorists to stop their attacks, and promise to keep it that way.
The Israelis also set up an increasingly effective intelligence system inside Palestinian territories. What the Israelis basically did was "take the war to the enemy." This is an application of the old maxim, "the best defense is a good offense." This particular war is still going on, but the Israelis only adopted their winning tactics in 2003 and two years later the terrorists were rendered largely ineffective.
Egypt and Algeria defeated Islamic terrorists during the 1990s using traditional methods (attacking everything in sight), and it took longer and was bloodier. The Egyptians defeated the Moslem Brotherhood (and the survivors fled to help found al Qaeda). Algeria finally defeated a similar movement only in the past year, the Egyptian campaign took most of the decade. Syria crushed the Moslem Brotherhood in the early 1980s, after five years of violence. These three Arab nations are all police states, and were able to deploy large numbers of police and soldiers that spoke the same language as the terrorists. Israel also had a large number of terrorists who spoke Arabic. Many had grown up in Arab countries, or had parents who had done so. What all these successful campaigns had in common was aggressive tactics that took the battle to the enemy.
For the rest of the world, treating terrorism as if it were just a police matter, allowed the terrorists to continue building support, and the ability to launch more attacks. But by going into the terrorist neighborhoods, you disrupt their planning and recruiting efforts, and eventually destroy the network of support. The United States clung to the police approach throughout the 1990s, and the attacks continued. Only after September 11, 2001, was the war carried to the terrorist heartland, and the attacks in the U.S., and against American targets elsewhere, ceased. The terrorists were forced to defend their base, and in doing so they killed many Moslems, and turned Moslem public opinion against them.
But going into Iraq worked a lot more effectively when the Israeli tactics were applied. This not only killed or captured key terrorist leaders and technicians, but demoralized many potential Islamic terrorists. Al Qaeda was exposed as a bunch of remorseless murderers who enthusiastically killed Moslems as well as infidels (non-Moslems). That cost al Qaeda their public support in the Moslem world, while the Israeli tactics cost al Qaeda its key people.

New rules make it harder to finance condos

2009-09-23T10:03:00.000-07:00

From the Sun Sentinel:

Associations should check whether their properties are approved

Daniel Vasquez on condosCondo columnist

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It may be a buyer's market for those looking to purchase a South Florida condominium, but a new FHA rule putting an end to "spot approvals" for home loans may burst the shopping bubble and make it much more difficult to qualify for a loan.

By extension, the same rule may also mean more bad news for condo sellers, already suffering through a bad economy which has sent property values into the Dumpster, since it impedes buyers' ability to purchase. And the financial pain could eventually spread to all Florida homeowners by way of higher property taxes, say experts.

What is happening: Beginning Nov. 1, a new Federal Housing Administration rule goes into effect that disallows a loan process called "spot approvals," which gave loan underwriters the authority to approve individual units rather than an entire building.

The reason such authority was so helpful to buyers is the cost and paperwork for a condo association to get an entire building approved by the FHA is onerous at best, costing tens of thousands of dollars for appraisals, structural engineering reports and other reports.

Spot approvals, in comparison, only require an association representative to spend 15 minutes filling out a single-page form. Those loans are prized by buyers because they generally have lower interest rates and require much lower down payments, about 3.5 percent of the purchase price compared with conventional bank loans, which may require up to 30 percent down.

Now, without spot approvals, condo buyers and owners will not be able to get an FHA loan for units in a non-approved building and will have to rely on conventional bank loans or pay cash, said Theresa M. Schmitz, a senior underwriter for Amerifirst in Fort Lauderdale.

"This poses a potential downward trend in condo values because many people can't afford to put such a large down payment down on a condo," Schmitz said. "And if there is a smaller pool of buyers, the market value of condos will decline even further and a condo unit will only be worth what a cash buyer is willing to pay for it."

Ripple effect: It also stands to compound the current real estate market problems that have caused cities to raise tax rates, Schmitz said. "Single family homeowners may think this doesn't affect them, but indirectly it will. When the condo assessed valuations plummet, our collective tax base will decline. Single family homeowners will pick up the slack with a hike in the millage rates and property taxes."

What you can do: Board members should check the federal Housing and Urban Development (the department that oversees the FHA) website https://entp.hud.gov/idapp/html/condlook.cfm to determine whether their condominium complex is on HUD's approved list.

Daniel Vasquez can be reached at condocolumn@sunsentinel.com or 954-356-4219 (Broward County) or 561-243-6686 (Palm Beach County). His condo column runs every Wednesday in the Local section and atsunsentinel.com/condos. Check out Daniel's Condos & HOAs blog for news, information and tips related to life in community associations at sunsentinel.com/condoblog You can also read his consumer column every Monday in Your Money and at sunsentinel.com/vasquez. The Sun Sentinel is hosting a Condos & HOAs Town Hall meeting on Oct. 29 at Nova Southeastern University. Submit a question for our panel of experts online athttp://www.sun-sentinel.com/condoquestions.

Green shoots in real estate? How about record delinquencies!

2009-09-23T07:04:00.000-07:00

If you watch the news or read the paper, both of whom depend on developers and real estate agents for advertising, you hear about the real estate market "bottoming out." While that may be true in Nashville, Fargo, or Charlotte, it is not the case here in Florida where the mortgage foreclosures keep coming in, up to 30 a day. Here is a tidbit from Reuters on mortgage delinquencies hitting a record high...

NEW YORK (Reuters) - High U.S. unemployment keeps pushing up the rate of mortgage delinquencies, which could in turn drive personal bankruptcies and home foreclosures, monthly data from the Equifax Inc credit bureau showed on Monday.

Among U.S. homeowners with mortgages, a record 7.58 percent were at least 30 days late on payments in August, up from 7.32 percent in July, according to the data obtained exclusively by Reuters.

August marked the fourth consecutive monthly increase in delinquencies, and the report showed an accelerating pace. By comparison, 4.89 percent of mortgages were 30 days past due in August 2008, while in August 2007, the rate was 3.44 percent, Equifax data showed.

The rate of subprime mortgage delinquencies now tops 41 percent, up from about 39 percent in each of the prior five months.

The results, which correlate with consumer bankruptcy filings, suggest U.S. homeowners remain under financial stress despite signs of improving sentiment and fundamentals in the U.S. housing market.

August bankruptcy filings were up 32 percent from a year earlier, compared with a 35 percent year-over-year increase in July.

Still, while more Americans were late with mortgage payments, they are keeping up with other bills. The proportion of credit card accounts at least 60 days past due was down in August for the third straight month, while subprime card delinquencies also fell.

That improvement in delinquency rates partly reflects risk-aversion among issuers, which have cut the number of cards by 82 million, or 19 percent, over the past year, while slashing credit limits by $721 billion, to about $3.6 trillion.

The number of new cards being issued is down even more dramatically. In June, 2.6 million new cards were issued, compared with 4.7 million a year earlier.

Lenders are increasingly targeting consumers with high credit scores, Equifax found. While in 2007, about one in five new cards went to people with a credit score above 760, such consumers account for two in five new cards in 2009. Equifax found similar trends in auto loans.

"The data from August further confirms that we're witnessing a dramatic change in consumer habits," said Dann Adams, president of Equifax's Consumer Information Solutions group.

Total consumer debt is down more than $300 billion, or almost 3 percent, from its peak in September 2008, Adams said, while the savings rate is nearing 5 percent, "a level we haven't seen in years."

Cancellation of Cable Contracts made by Developers

2009-08-28T04:56:00.000-07:00

My thanks to Terry Delahunty, a law school classmate of mine for the following. Go Gators!

NEW APPELLATE DECISION AFFECTING DEVELOPERS OF CONDOS
AND CONDO ASSOCIATIONS

An important Florida Appellate Court decision was issued Wednesday upholding the ability of a condominium association to terminate a cable agreement entered by the developer prior to turnover. Several trial courts have previously held that a condo association could use Section 718.302, Florida Statutes, to terminate a cable agreement entered by the developer prior to turnover of the condominium association to residents. Section 718.302, provides in pertinent part: "any contract made by an association prior to assumption of control of the association by unit owners other than the developer, that provides for the operation, maintenance, or management of a condominium association or property serving the unit owners of a condominium shall be fair and reasonable, and such grant, reservation, or contract may be cancelled by unit owners other than the developer: (a) ... by concurrence of the owners of not less than 75% of the voting interests other than the voting interests owned by the developer..."

In Comcast of Florida, L.P. vs. L'Ambiance Beach Condominium Association, Inc., No. 4D08-2326 (FL 4th DCA August 26, 2009), the District Court of Appeals for the Fourth District affirmed a Broward County Court decision finding that a condominium association could rely on Section 718.302 to terminate a cable agreement entered by the developer prior to turnover upon more than 75% of the unit owners voting to cancel the agreement. Comcast had argued that cable agreements are not for the "operation, maintenance, or management" of the association or property serving the unit owners and thus, 718.302 did not apply. Comcast also argued that Section 718.115(d), which provides expressly for terminating cable agreements at the next regular or special meeting after they are entered, should apply. The court rejected Comcast's arguments.

It is our understanding that this is the first appellate court decision in Florida upholding this application of Section 718.302, and thus, becomes a stronger state-wide precedent. Based on this decision, many condo associations will most likely try to get out of many current cable TV agreements, and cable operators and

developers may change their form agreements and business practices relating to entering into such agreements.

Foot dragging by foreclosing lenders

2009-08-28T04:43:00.001-07:00

This emphasizes my mantra to act quickly, always, but even more so now....

Postponing the Day of Reckoning

By Kate Berry, American Banker

August 26, 2009

Pick up just about any city's newspaper or turn on any news show, and if the topic is real estate, the banking industry is likely being lambasted for foreclosing on troubled homeowners.

But industry data and anecdotal evidence suggest banks and servicers have been dragging out the process – not rushing to kick people out of their homes.

Granted, the deferrals may not be motivated by compassion, or even political pressure. Rather, banks and mortgage investors want to avoid repossessing hundreds of thousands of homes, which would produce losses and hits to capital.

"The goal is to hold off on foreclosures and take losses as slowly as possible to keep balance sheets up," said Deborah Voelz, the chief financial officer of National Asset Direct Inc., a New York buyer and servicer of distressed loans. "Everyone is looking at what the ultimate loss is going to be and whether it makes sense to hold off another year or two and mitigate the results."

The foreclosure process -- and it is a process -- now takes, on average, 18 months to two years, up from 15 months a year ago, according to Amherst Securities Group LP. Backlogs in county courts and at servicing companies, along with local government moratoriums, have contributed to the delays. But plenty of signs indicate that the mortgage companies themselves are in no hurry to seize their collateral.

Rick Sharga, a senior vice president at RealtyTrac Inc., an Irvine, Calif., company that monitors foreclosure filings, said banks often start proceedings but then decide "they don't want the property" and suspend the process indefinitely.

Of the 2.3 million homes that received foreclosure notices last year, one-third had been repossessed by yearend, according to RealtyTrac.

Banks also "are allowing borrowers to be delinquent for longer and longer periods of time before initiating foreclosures," Sharga said.

Tom Booker, a senior vice president in the default information unit at First American Corp. in Santa Ana, Calif., concurred. "There are borrowers who are six or eight months in default; they may have exhausted their workout options; but they're put on a forbearance plan because it's an interim to a final resolution, which is foreclosure," he said. "Banks don't want to take the losses now."

Bottom Line Secrets on age restricted communities

2009-08-28T03:47:00.000-07:00

Paradise or Purgatory? Is a Retirement Community Right for
You?

Andrew D. Blechman
Americans have retired in droves to age-restricted communities ever
since six model homes opened in Sun City, Arizona, in 1960
-- the first such development in the world. Today, as Sun
City plans a 50th anniversary celebration for its more than
40,000 inhabitants, some 1,500 "leisure retirement
communities" have become a way of life for nearly 12
million people.

While age-restricted communities tend to cluster in sunny
states, they're proliferating everywhere. You may be
surprised to learn that 60% of new retirement communities
are being built in the North. Massachusetts, where I live,
contains 150, with about 200 more proposed.

The largest age-restricted (and gated) retirement community
in the world is The Villages in central Florida.
One-and-one-half times the square mileage of Manhattan and
currently housing 70,000, this flock of "villages" lured
former neighbors of mine, the Andersons, several years ago.
In a one-month stay at The Villages, two weeks of which
were spent at their new home, I did my preliminary research
for Leisureville: Adventures in America's Retirement
Utopias, a study of retirement communities around the
country. My goal: To understand the appeal of a unique way
of living that has been luring our elders away.
http://link.bls.bottomlinesecrets.com/r/HQLGBI/260AZ/5R9NB/MSB3H/HD7PC/SN/t/

INDEPENDENCE AND COMMUNITY

The most prominent type of retirement community, and the
one I studied for my book, focuses on recreation. The
amenities are plentiful, with little waiting for a tennis
court or tee time... and a constant influx of new residents
that encourages bonding and creates instant community.

Grown children feel relieved that Mom and Dad are busy and
happy. Some communities contain continuing-care facilities
for residents who become unable to care for themselves.

While these communities vary widely, they share attributes
that say "paradise" to some -- and "purgatory" to others.

A CERTAIN AGE

Designed for those who prefer a child-free environment,
retirement communities address the needs and desires of the
older set. Minimum age requirements -- usually age 55 --
are strictly enforced. At least one member of each
household must be the minimum age or older. (Filling the
house with unrelated roommates is not allowed.) Guests,
including relatives, under age 18 or 19 may visit for only
a predetermined number of days per year.

Pros: Residents relish the novelty of having their needs
treated as a top priority. A child-free environment ensures
more peace and quiet than ordinary neighborhoods provide.
Seniors feel safe surrounded by age peers.

Cons: Grandchildren's visits are limited. They can never
move in, whatever the family situation. People who enjoy
mingling with others of all types and ages might find the
setting too limiting.

RECREATION 24/7, INCLUDING SEX

Golf, tennis, swimming, Bingo, dances and hobby groups
dominate daily activities in leisure-oriented communities.
An active singles scene includes the never married, the
divorced, the previously widowed and those widowed after
moving in. A relaxed social atmosphere with no work
responsibilities tends to encourage sexual freedom. I have
observed that a good number of older gentlemen, and some
women, regularly seek and find sex partners.

Pros: Life can be all play -- a common retirement fantasy.
Tennis courts, swimming pools and gyms aren't overrun by
the young. Recreational facilities are designed for
less-than-perfect eyesight and physiques.

Cons: People who are less focused on sports and hobbies may
feel alienated, as may retirees who derive significant
pleasure from high culture -- opera, theater, classical
music, a superb public library. Widows and widowers who
haven't dated in 50 years and who dismiss the use of
condoms as solely for contraception are unaware that
sexually transmitted infections, including herpes, syphilis
and AIDS, have infiltrated the senior singles scene.

NEW CONSTRUCTION, LOTS OF RULES

Many retirement communities, being built in ever-increasing
numbers, boast that everything is new. The older ones were
built just as fast and not all that well.

Also, home owners must respect many rules ("deed
restrictions").

Examples: Exterior paint colors and even the height of
shrubs may be prescribed... pets limited to two... lawn
ornaments and window air conditioners banned.

Pros: Modern amenities, including plenty of bathrooms and
closets. Homes designed with few stairs and universal
accessibility.

Deed restrictions ensure that neighborhoods remain clean
and neat. Many home owners consider mandatory conformity a
small price to pay for knowing that they'll never see their
neighbors' car on blocks, swing sets in the yard or gnomes
on the lawn.

Cons: Slapdash construction, including modern versions of
old designs built with today's questionable workmanship,
often lacks charm. Each community's success hinges on
perpetual investment and care by the managing owner. You
may never know whether the developer is about to declare
bankruptcy, as some have, leaving behind partially
completed, thinly populated "communities" with houses that
will probably become increasingly difficult to sell.

PRIVATE OWNERSHIP

The communal areas of most recreational retirement
communities -- the golf courses, the downtown, the streets
-- as well as the empty lots and unsold houses are owned by
their builders (or whomever the builders sell them to).
Special zoning arrangements (these communities bring in
lots of tax revenue for local jurisdictions) may permit
community rules to sidestep state and county laws in many
aspects of life.

Pros: Many residents, delighted with their low per-home
property taxes, feel confident that the owners have a
personal stake in meeting community needs.

Cons: Residents trade the ballot box for the suggestion
box. Residents with a gripe plead their cases before a
corporate board, not elected officials. Don't look in the
local paper or at public meetings for discussions of
serious issues.

Expect to live under a form of "taxation without
representation." Through steadily increasing maintenance
fees, the owners can charge residents for, say, new golf
courses and recreation centers.

ADVICE FOR POTENTIAL BUYERS

If age-restricted retirement community living attracts you,
visit several, staying for a while if you can arrange it. I
learned far more during my four weeks with the Andersons
than any official tour could have shown.

Generally, these communities have wonderful recreational
amenities. But is the intellectual spark bright enough for
you? Can you find a group that reads the kinds of books you
like? Other questions to consider...

Where do you want to be in 20 years? How would you feel
about being far from your family and old friends later in
life?

Can you imagine aging happily there? Might you "age in
place" instead, perhaps having your current home
retrofitted?

Will your house purchase be a good investment, bringing
decent value if you sell?

OT but important

2009-08-24T14:17:00.000-07:00

To the extent that anybody actually reads my missives, this is an important one, non condo/hoa related..

I am sickened by comparisons of President Obama to Hitler, including a portrait of him with a similar mustache, and other use of Nazi symbols at health care "forums" that trivialize the memory of those who died in the Holocaust.

I am disgusted by the constant use of the use of the term Holocaust except as it related to the attempt of Nazi Germany to extinguish Jewish DNA, as well as others who were so cruelly put to death.

In the weeks leading up to the assassination of Israeli Prime Minister Rabin, many opposed to his policies, solely on the right of the political spectrum, demonstrated with pictures of Rabin with a Hitler moustache, Nazi swastikas, etc., etc. That type of speech encourages people at the fringes of society to conclude that they must "stop" the actor, which lead to his murder. I am deeply afraid of what might happen if the same rhetoric continues here.

One person I discussed this with even commented that Obama is a Socialist, and the Nazis were the "National Socialists" so they are one and the same; what a sap. Nazis were fascists, but the use of the name again dupes to dupes into thinking that this is "Socialism." Some elements of Socialism were present but it was a far cry from what we see in Sweden, but I digress...

I think it's time that we speak out and demand that this vilification stop immediately. This is largely a product of the right wing, and while I am mindful of the people who called President Bush a Nazi, the rhetoric has been ratcheted up to 11.

This type of arguably protected speech under the Constitution puts Jews front and center in the Health Care discussion, like it or not. There is NOTHING that compares to the Holocaust ("Palestinians" compare their treatment under Israeli rule as a "holocaust" if so why are there 2 million of them now and just 250,000 of them in 1948? The Jews of Poland and Europe could have flourished under such treatment!). Why must symbols of the destruction of Jewish society in Europe be used by people in this debate? Shame on you!

Stop it now!

Fair Housing Discrimination-Familial Status

2009-08-23T09:10:00.000-07:00

Be careful when dealing with rules concerning children; for example pool rules should not prohibit infants, but instead require "incontinent persons" to wear leakproof pants; if the pool is x deep a rule requirung that anybody less than that number of inches tall must be accompanied by soemone taller than that to avoid familial status discrimination.

From the Community Association Management Insider:

The U.S. Department of Housing and Urban Development (HUD) recently announced that it is charging an Atlanta condominium association, a local real estate company, and its agent with housing discrimination for refusing to sell to families with children.

The Fair Housing Act prohibits a housing provider from discriminating against families with children unless the housing meets certain requirements for housing for older persons.

According to the charge, the agent had advertised a condominium for sale and conditioned the sale to those without children. A fair housing agency then sent testers to inquire about the condo. When a tester told the real estate agent that she had children, the agent allegedly told her that no children were allowed and refused to show her the unit. During HUD’s investigation, the agent admitted that several prospective buyers with children under the age of 14 inquired about the property and she told them about the restriction. The property was eventually sold to a single female without children.

The HUD charges will be heard by a United States Administrative Law Judge unless any party to the charge elects to have the case heard in federal district court. If an administrative law judge finds after a hearing that discrimination has occurred, he or she may award damages to the complainant for its loss as a result of the discrimination. The judge may also order injunctive relief and other equitable relief to deter further discrimination, as well as payment of attorney fees.

AP story on foreclosure crisis in Chicago Tribune

2009-06-11T14:28:00.000-07:00

Per the AP, here is another story on the association collection crisis...

Homeowner associations foreclosing on residents behind in their fees

By PAUL J. WEBER | Associated Press

2:30 PM CDT, June 11, 2009

IRVING, Texas (AP) -- Thousands of Americans who have generally kept up with their mortgages are still in danger of losing their homes because they made a fateful trade-off in this shaky economy -- they let their homeowner association dues slide.

Many homeowners are learning to their surprise that condo and neighborhood associations that oversee security patrols, mow lawns, plant flowers and clean the community swimming pool may have the right to foreclose when dues aren't paid. That right is often written into the purchase agreement signed by the homeowner.

Among those who have been threatened with foreclosure is Lacey Pilat, who lost her job catering lavish corporate parties and nearly lost her two-story house in this Dallas suburb.

"Basically, our landscaper was foreclosing on the house," said Steve Pilat, her husband. "That's the way we looked at it."

These foreclosure actions do not necessarily pit neighbor against neighbor. Many homeowner associations have turned the job of collecting member dues over to outside management companies. And to them, it's strictly business, not personal.

Homeowner association boards and their management companies defend the practice, saying maintaining the neighborhood preserves everyone's property values.

"We have compassion for those folks. At the same time, we feel for the rest of the homeowners who are paying their dues," said Andrew Schlegel, executive vice president for Merit Property Management, which manages more than 140,000California homes in community associations.

In California, associations can foreclose only after 12 months of missed fees or $1,800 in back dues.

"No one wants to do this," Schlegel said. "It's only coming up when people are completely obstinate about it."

In fact, most people end up saving their homes. Homeowner association boards -- particularly those that have lost many of their dues-paying members to the housing collapse and the slumping economy -- often work with down-on-their-luck neighbors to come up with some sort of compromise. That's what happened with the Pilats.

Gauging the number of foreclosures nationwide by homeowner association is difficult. But in Texas, foreclosure attempts initiated by homeowner associations in 19 counties are up 30 percent from two years ago, according to Dallas-based Foreclosure Listing Services.

In the San Antonio area alone, foreclosure actions by homeowner associations jumped to 170 in April from 21 in April 2008, according to RexReport.com.

In Florida, attorney Bob Tankel, who represents hundreds of homeowner and condo associations, said he has increased his staff from three to 16 in the past 18 months to handle a mounting caseload of 3,500 open collections. About one-fifth of those cases have reached foreclosure, he said.

In California, Schlegel said more than 6 percent of the homes that his company manages are in some stage of delinquency with regard to membership dues, up from around 1 percent in previous years.

More than 59 million people live in more than 300,000 association-governed communities nationwide, according to the Community Associations Institute, the nation's largest group for homeowners and condo boards.

In many of these foreclosure cases, the homeowner's name is on the mortgage, and the mortgage is held by a bank or other lender. But the purchase agreement says the homeowner association can haul the homeowner into court and begin foreclosure proceedings for nonpayment of dues.

If the house is foreclosed on, it is sold off, and the homeowner association takes what it is owed from the proceeds. Proceeds also go to the bank to pay off the mortgage.

About four months after Pilat lost her job, the management company for the Beacon Hill homeowner association sent her a foreclosure notice in April after several attempts to collect her $450 annual dues, which paid for the mowing of front lawns. The amount she owed snowballed to $1,800 after penalties and fees.

The management company eventually agreed to let the couple pay the debt over time. The Pilats cut a check for $600 in April that drained their checking account but saved the house. They are slowly paying off the $1,200 debt.

Pilat had fallen a little behind on the mortgage, too, but the bank was working with her to keep her house.

The Pilats said their neighbors on the homeowner association board never got involved in the dispute over dues; it was handled by the management company. Neither the company nor the homeowner association returned calls for comment.

The foreclosure actions have renewed long-standing complaints that homeowner associations are often made up of power-drunk residents who enjoy lording it over their neighbors and zealously enforce the rules regarding such things as the height of the grass, the color of the house, the flying of flags and the way the porch is furnished.

"You have a number of them being run like little totalitarian regimes," said Texas state Rep. Burt Solomons, who has unsuccessfully tried passing association reforms for years in the Legislature. "Their argument is that if you don't like it, move."

Near Sacramento, Calif., unemployed state employee Pam Spanier was served with a foreclosure notice after falling more than seven months behind on her $115 monthly dues, which pay for Internet access and a golf-cart security patrol. She owes a total of $2,100, including attorney fees and fines. She is still in her home.

"I'm going to continue to look for a job and hope for a miracle," she said. "If it forecloses, it forecloses."

Collectible Costs and realted matters

2009-06-09T13:56:00.000-07:00

We often get requests to pass on management company charges in collection actions; while I am sympathetic to the costs that are incurred, this email with the names modified to protect the guilty sums up the position on the issue quite well...

Hi Jennifer;

Jenny asked me to respond to the inquiry you had regarding the issue of informing you that we cannot collect the $10 per month collection "fee" that #$@&^!@ Management imposes on delinquent accounts. The following is why.

The law says this:

720.3085

(3) Assessments and installments on assessments that are not paid when due bear interest from the due date until paid at the rate provided in the declaration of covenants or the bylaws of the association, which rate may not exceed the rate allowed by law. If no rate is provided in the declaration or bylaws, interest accrues at the rate of 18 percent per year.

(a) If the declaration or bylaws so provide, the association may also charge an administrative late fee in an amount not to exceed the greater of $25 or 5 percent of the amount of each installment that is paid past the due date.

(b) Any payment received by an association and accepted shall be applied first to any interest accrued, then to any administrative late fee, then to any costs and reasonable attorney's fees incurred in collection, and then to the delinquent assessment. This paragraph applies notwithstanding any restrictive endorsement, designation, or instruction placed on or accompanying a payment. A late fee is not subject to the provisions of chapter 687 and is not a fine.

The question then becomes what is a "cost"? I think the Legislature has given us some guidance in section 720.3085 (4) Fl Stat. which says:

(a) Provide the owner with 45 days following the date the notice is deposited in the mail to make payment for all amounts due, including, but not limited to, any attorney's fees and actual costs associated with the preparation and delivery of the written demand.

So here we have the same statute referring to "costs" and "actual costs" and not defining either of them.

For guidance we need to turn to the language of the Fair Debt Collections Practices Act, which states as follows (remember attorneys are "Debt Collectors" as defined in the Act, so this limits us):

§ 1692f. Unfair practices

A debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:

(1) The collection of any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law.

The instrument creating the debt is between %$#@&*! management (or management company and the Association; the debtor is not a party to that obligation. Therefore the amount is only collectible if it is allowed by state law.

"Costs" as they are generally referred to are subject to the Uniform Guidelines as to Cost Awards, promulgated by The Supreme Court. As you can see, very few "costs" that we may consider as being recoverable, such as photocopies, are actually recoverable. In my opinion, the distinction between the reference to "costs" and "actual costs" is crucial. An "actual cost" is a cost imposed in connection with preparation and dissemination of the initial 45 day letter as set forth above. That is a cost we already protect.

However any other charges imposed over and above that which is allowed by state law (as the "actual costs" are) and not part of the agreement between the debtor and creditor are NOT recoverable and subject at least my law firm to an action for violation of the fair Debt Collections Practices Act.

Hope this helps, Bob Tankel

Governor Signs SB 360, Vetoes SB 714

2009-06-03T13:06:00.000-07:00

I tell ya, I have less and less respect for elected people every day...Gov. Crist signed the Growth Management, which was sponsored by Sen. Mike Bennett, R-Bradenton, on Monday, despite opposition from Tom Pelham, the Secretary of the Department of Community Affairs. The law will remove transportation concurrency requirements in the state’s dense urban land areas-- tracts with an average of at least 1,000 people per square mile or in counties with populations of at least 1 million and replace it with a “mobility fee system.”

It will directly affect eight of the state’s largest counties and nearly 250 municipalities across the state. Get ready for worse traffic, overburdened schools, &tc., &tc., all in the name of Economic Recovery."

The law also will exempt from the development of regional impact process dense urban areas or parcels classified as “urban infill”, “community redevelopment” or those that are part of an urban service area. It allows for a two-year extension of permitted projects. It passed the Senate on a 30-7 vote. The House passed it by a 78-37 tally. In the meanitme SB 714 that had a LOT of good things in it and was the ONLY community association related bill, and was passed unanimously by both houses was vetoed, go figure...

Atlantic Beach passes law making landlords responsible for repeat criminal renters

2009-06-03T12:45:00.000-07:00

I doubt that this is constitutional, but when has that ever stopped any Legislative body? I guess it applies to HOA's and Condo Associationw who may rent properties acquired by foreclosure, but it doesn't give much, if any leverage when owners don't do it.....

ATLANTIC BEACH, Fla. – June 3, 2009 – Despite criticism from Realtors and others, the City Commission Tuesday unanimously approved an ordinance that requires landlords to evict repeat criminal offenders who rent properties in the Mayport Road area. Landlords who don’t comply will face city fines and penalties. While real estate agents and others have called the measure unfair, Mayor John Meserve said the action simply reflects state law. “The language of how we enforce laws on those people who have rental properties that continue to rent to bad people and don’t clean up their act when talked to about it, that’s taken from state statute,” said Meserve. But during a public hearing before the commission last week, some property owners said they’re worried about being singled out and that evicting a renter is complicated, whether they break any laws or not. “It doesn’t say anything about convictions,” said Peter Sapia, who owns several rental properties in Atlantic Beach and throughout the Beaches. “Without a conviction, my attorney told me I cannot do anything.” Atlantic Beach Community Redevelopment Coordinator Dale Hatfield is handling the urban revitalization of the Mayport corridor, which includes neighborhoods about two blocks to either side of Mayport Road. He said the city will help landlords deal with law-breaking renters as each case comes up. “We are going to provide support to that landlord,” said Hatfield. “We’re going to talk to them about seven-day notices. We’re going to talk them about how to evict persons and we will go with them, if they need it, to show them how this process is done.” Hatfield, who is still a city police officer, said evictions involve a different level of “proof” than a criminal case since evictions are civil issues. A burden of “guilt” isn’t necessary, he said. The revamped ordinance seeks to get landlords to evict troubling tenants, especially in the neighborhoods surrounding Mayport Road. Atlantic Beach targeted that area for urban renewal in early 2008 and officials hope their efforts can reverse decades-old blight and crime. Some of the ordinance changes in the city’s code call for the resurrection of the Public Nuisance Control Board, which convened one time in 1990 to address one complaint but essentially dissolved after that. The city wants the Code Enforcement Board to double as the nuisance board to address complaints with tenants. The board would be able to impose additional penalties on landlords if repeat criminal offenders are not evicted. Still, Jacksonville Beach Realtor Jeanell Wilson said Atlantic Beach’s new measure seems to place blame on landlords and not those who actually violate the law. “It seems to be holding the landlord responsible for the actions of the tenant,” said Wilson. “We can’t control the actions of the tenant.” Hatfield said while the city is focused on revitalizing the Mayport Road area, they still want to be an advocate for landlords and focus on the tenants who have been involved in crimes ranging from drug dealing to prostitution in the corridor. “We will go in and do an undercover sting of some kind and someone will be arrested. It doesn’t matter if they’re convicted or not, it matters that they’ve done it in the presence of a police officer,” said Hatfield. “If something’s been done on their [the landlord’s] property, we notify them and help them. If they don’t do anything to abate that problem, then they can be held liable.”

The Florida Times-Union, Jacksonville, Drew Dixon. Distributed by McClatchy-Tribune Information Services.

Please email Gov. Crist to Veto SB 360

2009-05-31T15:06:00.000-07:00

The legislature has passed SB 360 which will help destroy the Florida I have grown to love since moving here 34 years ago. Enough has been lost to dredge and fill, filling in wetlands. "mitigation" and other destruction of the Florida that used to be. Please email him TODAY...

Charlie.Crist@MyFlorida.com

How to monitor the Stimulus money

2009-05-28T15:09:00.001-07:00

Here are a couple of links at both the federal level and Florida level as to spending the stimulus money. I see that Governor Crist managed to put his face twice on the page, I wonder if that has anything to with him running for Senate and will now be a one term lame duck governor for the next two legislative sessions.....

I hope that the Chinese are willing to continue to lend us the money to pay for all of this.....

I told ya so...

2009-05-27T11:49:00.000-07:00

Those "Green Shoots" will probably die in the chill of Round 3 of the Foreclosure debacle:

From November to February, the number of prime mortgages that were delinquent at least 90 days, were in foreclosure or had deteriorated to the point that the lender took possession of the home increased more than 473,000, exceeding 1.5 million, according to a New York Times analysis of data provided by First American CoreLogic, a real estate research group. Those loans totaled more than $224 billion.

During the same period, subprime mortgages in those three categories increased by fewer than 14,000, reaching 1.65 million. The number of similarly troubled Alt-A loans — those given to people with slightly tainted credit — rose 159,000, to 836,000.

Over all, more than four million loans worth $717 billion were in the three distressed categories in February, a jump of more than 60 percent in dollar terms compared with a year earlier.

it's worse than we thought.....

2009-05-26T14:09:00.000-07:00

Some time ago I posted a chart link that suggested a huge wave of ARM resets that Credit Suisse thought would be over some time in 2010, now they re-cast that opinion and it is worse! Click here and be ready to be ill...

Memorial Day and my letter to Casey's Big Report

2009-05-25T13:51:00.000-07:00

Sorry to stray from my usual topic, bit I felt compelled to share this...

Dear Mr. Galland

I happened to read your most recent missive in "The Room" on May 25, Memorial Day in the United States. As I think about the tens of thousands of men and women who died in the so ...... "that this nation, under God, shall have a new birth of freedom -- and that government of the people, by the people, for the people, shall not perish from the earth." (President Abraham Lincoln, Gettysburg Address) I was struck by the tone of you column. Maybe it's because I'm a relatively new subscriber, but it seems decidedly hostile to our form of government, any government. If you like a place where the people have freed themselves of excess governmental intrusion onto their lives, look to Somalia, Afghanistan or any of several dozen countries where, with enough money and a big enough private army, (probably 2 dollars a soldier per day, maybe quite a bit less!) you can do just about anything....set up your own mining company, stock exchange, pharmaceutical company, bank or investment house. You could make your own laws, and set up the regulatory framework.

In the meantime rather than rail about how stupid people are here in the US daring to express that they are "Socialist in attitude." Maybe they are! Is it due to inadequate education, or could it be that they are aware that the current system just blew a $13 Trillion hole in our economy and so far, only Bernie Madhof seems to be held accountable. With losses of that magnitude, and the devastation it has showered on the US, is there any doubt that the current system is broken?

My grandfather was a Russian Jew who spoke no English and I am proud of my country, proud of what I have accomplished, paid back every cent of the loans the government granted me so I can earn enough to be in the top bracket of taxpayers, and create a lifestyle that 90%+ of the people on earth do not have in terms of "creature comforts." Freedom of speech and religion are keenly important as if recognition of private property ownership and a stable regulatory environment.

I think your reporting is interesting, and I am worried about the debt; when George H.W. Bush and later, the Clinton-Gore years took steps to actually curb entitlements, the budget deficit shrank. It does not take rocket science to clean up the mess as raising the retirement age and shaving costs in Medicare will keep them solvent for another hundred years. We need relatively marginal changes to the system, that will affect current and future "welfare recipients" (after all that is what those people are) and that will put tens of trillions of dollars back into the system.

One doesn't need to be a Socialist to realize that marching out Bjorn Lonborg to support a proposition that Carbon pollution is a waste, is as irresponsible in support of your position as anything anybody on the "Left" does. Climate change a Soviet plot? Really now! I'm almost ready to get out a tin foil hat for you. Perhaps it is wrong. I believe that the cost of being wrong, is less than the people you oppose being right. We need to transform our "energy policy" from one based on the House of Saud, and "Drill baby Drill!" to one that frees up our energy here, encourages conservation (It is after all, a "virtue, as former V.P Dick Cheney said, which means, I guess, that people can strive for it, but not be bound by it) and stops sending hundreds of billions of dollars a year to less than savory people, and would allow us to save another hundred billion a year in "defense costs by having to be the policeman in the Middle East.

I'm sorry for the rant, but castigating the citizens of the US for reacting to 8 years of a regressive president, a Congress that abdicated it's obligation to us for a solid 6+ of those years is not the way to get my attention as an investor. We the people elected the current government, and we have a responsibility to hold it accountable, for good and bad policy decisions. Reasonable people can differ but we need a way to bridge the gap between the failed policies of the past, and the way to the future. Polemics and people like Rush Limbaugh (and Randi Rhodes, but nobody listens to her) need to be marginalized.

Please stick to reporting the facts at hand, even those of us with our hearts on the left and wallets on the right would benefit.

God Bless America, Bob Tankel

SB 2080 a/k/a "Florida Friendly" Landscaping...

2009-05-21T05:51:00.000-07:00

This is looked to as something "good for community associations. Besides being unconstitutional as it will retroactively impair thousands of existing contracts, clearly prohibited by the Florida Constitution, Howard Troxler put it best in his column today; it's a bulldozer in sheep's clothing...

PS did you know the word "Xeriscape" is a trademark oof the Colorado Water Authority, so every time you use it you owe them a dime .............(maybe more>>>)

Please email the Governor and ask him to veto the bill....Charlie.Crist@MyFlorida.com

On the other hand, I wouldn't just veto SB 2080 — first I'd jump up on the desk, stomp up and down on the bill, crumple it up and set it on fire. Then I'd veto it. This bill represents the Legislature at its worst — an innocent bill promoting "Florida friendly" landscaping, amended at the last minute for a different purpose. The amendment hands over the power to issue state permits — for water use and for wetlands destruction — to the executive directors of the state's five water districts. Hey, I don't even like the state's appointed water boards. But at least they meet in the sunshine and have public input. Audubon of Florida calls it "the worst bill of the session." Veto material? Sure. The worst? Nah. As Yoda assured Obi-Wan Kenobi in The Empire Strikes Back: "There is another." But that's a topic for another day.

Thnking of renting space for cell antennas?

2009-05-14T12:42:00.000-07:00

From Community Association Insider; here in Florida, a vote of the members is required, FYI.

Issue Date: April 2009, Posted On: 3/26/2009

Avoid Pitfalls When Leasing Condo Roof Space to Wireless Providers

In these challenging economic times, some condo associations are stretched to think of new ways to offset dwindling assessments. One potentially lucrative option is to lease rooftop space for antenna installation. The proliferation of cell phones, broadband, paging, wireless Web, and related technologies has driven the demand for wireless companies to increase their coverage areas and data transmission capacities.

Wireless providers require towers and other elevated spaces to install the equipment needed to serve their subscribers. Although independent structures have been built to house the necessary transmission equipment, many high-traffic areas simply do not have sufficient unoccupied land to build on. Therefore, installing mini-towers and inconspicuous transmission equipment on top of existing buildings has become an increasingly popular alternative.

Of course, the viability and value to wireless companies largely depends on the location of your buildings. Condominium buildings located near a high-traffic area will usually generate the most revenue. And usually, wireless companies will approach your association about leasing rooftop space after they have conducted surveys to determine where a need exists for additional transmission sites and the most advantageous locations for equipment placement are determined.

Many associations are at a disadvantage against the wireless companies because they may not be familiar with rooftop leases and the typical contractual sticking points involved. Although a cell phone service provider's offer to lease a portion of your building's rooftop may seem like easy money, if an association agrees to the provisions in a standard rooftop lease without carefully analyzing each clause in the agreement, an association will probably regret the decision, says real estate attorney Mark Morfopoulous.

We will review the main clauses in a standard rooftop lease agreement and make suggestions for negotiating lease language that is more association-friendly than the industry's boilerplate.

Location and Installation of Antennas and Equipment

Standard rooftop lease agreements begin by broadly describing the location of the cell phone service provider's equipment, often referred to as Equipment Space, Antenna Space, and Cabling Space. This general language does not go far enough to protect owners. Therefore, when negotiating the Location and Installation clause, you should:

Make all installations subject to your prior approval. First, you should make sure that the location, type, weight, and size of all antennas, equipment, and shelters comprising the wireless company's facilities installed at any time during the lease term must be approved by the association prior to their installation.

Guard against damage. The installation of antennas, no matter where they're located on the roof, could damage the roof or other structural elements of the building. To protect your building, at a minimum, make sure that the cell phone service provider has adequate insurance to cover the risk in the event damage occurs.

Get detailed list of equipment. Today, the size and weight of the antenna(s) may be satisfactory. Tomorrow, however, the wireless company could install new antennas that are twice the size and weight of those originally installed. This may not be what you intended when you signed the lease. A larger antenna could be unsightly and block site line views. If new or additional antennas weigh more, they may cause damage to your building.

Maintaining and Repairing Company's Facilities

Although a wireless company should have the right to maintain and repair its facilities at a site, an association should have the right to approve the replacement or upgrading of any of the company's equipment in the event the equipment is not “substantially equivalent to” the equipment being replaced or upgraded.

Make company maintain roof, building integrity. With respect to the installation area, the company should agree to maintain the waterproof integrity of the building and the roof. In addition, a wireless company should not make any improvements or alterations to the site except as specifically authorized and approved by you.

Wireless Company's Entry onto Site

Standard rooftop leases give the company “24/7” access to their equipment. Although the cell phone service provider may have a legitimate interest in having round-the-clock access to its facilities, there are valid security reasons why an association would want to control such access.

Require notice. It is appropriate to require the company to give you 24 hours' advance notice of its need to access the roof, except in the case of emergencies in which instance, the company should call the association manager to give notice of its intent to enter the site.

Permits, Approvals, Authorizations

Standard rooftop leases state that before doing any work relating to the attachment of the antenna or the installation of any equipment, the company will obtain any and all governmental permits or approvals that may be required and provide you with copies of them.

Get expert's safety report, too. While obtaining governmental permits and approvals is a basic requirement for any radio antenna deal, a wireless company should also be able to deliver, at its sole expense, a report from a licensed engineering firm stating that the their plans do not pose any safety concerns to the building and the members. This report should attest that the site can safely accommodate the company's equipment.

A safety and engineering report can be used not only to satisfy you that the equipment is safe, but also to show the members in your building that you have performed the proper due diligence to ensure that the building is safe for all.

Make wireless company comply with report recommendations. In the event such reports call for modifications to the site to safely accommodate the company's equipment, the wireless company should be responsible for making such modifications at its sole expense before equipment is installed.

Get right to hire independent reviewer. In addition, an association should have the right to hire an independent engineering consulting firm specializing in the construction and maintenance of radio antenna equipment and/or radio frequency electromagnetic fields emissions to review: (1) the engineering report and safety report; and (2) the wireless company's work plan, as it may be revised from time to time, all at the wireless company's sole cost and expense.

Relocation of Facility

This provision is one of the most highly negotiated sections in a rooftop agreement. An association should at any time be able to require the company to remove or modify its equipment or relocate it to another area designated by you, if the equipment:

Causes physical damage to the structural integrity of the building;
Causes any interference; or
Creates or results in any noise, odor, or nuisance tending to disturb any member of the building or adjacent areas.

Spell out shut-off/restart terms. You should request that the company agree that it must immediately shut off the equipment upon notification of any damage or interference, and may restart modified or relocated equipment to test for any damage or interference only with your permission, which should not be unreasonably withheld.

Agree to compromise. On the other hand, the company will argue that it intends to invest a substantial amount of money to install its equipment. Relocation of its antennas not only can be a huge expense, but may also render the site far less effective or even useless for its intended purpose. Further, if the wireless company is forced to shut off its equipment or render it inoperative for any period of time, that would affect its ability to provide cell phone service to its customers.

Therefore, a compromise may be to:

Allow the wireless company to terminate the lease if it has reasonable grounds to do so;
Provide alternate space for the equipment in the building; or
Consider sharing the cost of removal and/or relocation of the equipment.

Assignment and Sublet

Standard rooftop agreements usually state that the wireless company “shall not assign this Lease or sublet, mortgage, or hypothecate this Lease or the Premises without the Association's written consent, which may not be unreasonably withheld, delayed, or conditioned.”

Be aware that many cell phone service providers will attempt to co-locate with other cell providers at one site and reap huge profits that the association will not participate in—unless the lease requires the wireless company to pay the association a portion of those profits.

Inserting a profit-sharing formula into this provision could be an answer to this problem, but there are other issues to think of as well: Will the new subleasor install equipment that will interfere with the facilities of others at the building? Are the additional frequencies safe? Will the new equipment damage the building, be an eyesore, or block site lines? These are some of the matters you should consider when negotiating a standard assignment and sublet clause.

Insider Source

Mark Morfopoulos, Esq.: Meislik & Meislik; 66 Park St., Montclair, NJ 07042;http://www. meislik.com.

Are we back to Hoovervilles?

2009-04-10T14:38:00.000-07:00

What in the world is going on, what with homes in foreclosure being squatted in? This is just unbelievable. 9 years ago we had a budget surplus as far as the eye could see, more income equality, and we squandered it down a hole....

Deutsche bank says Crisis "Far from Over"

2009-04-08T14:03:00.000-07:00

And this is news???!!! I can't tell you how many foreclosures come through my door where Deutsche ban as trustee fro (fill in the blank) is the Plaintiff. No assignment of mortgage, no good faith effort to find a lost note, who are they kidding? Matbe we should all just be like French Peasants and buy gold to stuff in our mattresses...these "Masters of the Universe" ought to be in irons....

Shadow inventory of unsold foreclosed homes

2009-04-08T13:59:00.000-07:00

Here is an article from the san Francisco Chronicle describing the glut of unlisted homes that have already been foreclosed on. Here in Florida, I have no idea about a glut of foreclosed homes in inventory BUT there are probably TEN THOUSAND where the lenders are dragging their feet and don't want to even take title.....

The riskiest 25 markets in the US

2009-04-08T13:56:00.000-07:00

This article is from Forbes, where I'm sure that the answer to the problem is the flat tax. Florida has about as many cities as anybody, including Miami, at #2, with 33% non-prime loans...

Click through the article to see the list....

To protect and serve????

2009-04-01T12:46:00.001-07:00

The forced privatization of municipal services on associations continues unabated as Bill McCollum, Public servant and "conservative" issued an Attorney General opinion that municipalities can require condominium associations to hire private security guards. So now owners get to pay not only full bore property taxes to help fund police departments, but can rest easy knowing that they have to pay twice for security. This is ridiculous, and part of an ongoing asssult on condo associations by regulation minded elected officials at all levels of government.

Amazing..you buy a condo and lose your rights under the Equal Protection Clause of the US Constitution....

Number: AGO 2009-08
Date: February 23, 2009
Subject: Municipalities, security services for condominiums

Mr. Hans Ottinot, City Attorney
City of Sunny Isles Beach
18070 Collins Avenue
Sunny Isles Beach, Florida 33160

RE: MUNICIPALITIES – CONDOMINIUMS – POLICE POWERS – HOME RULE POWERS – authority of municipality to require condominiums to provide security services on condominium property. Ch. 718, Fla. Stat.

Dear Mr. Ottinot:

You have requested my opinion on substantially the following question:

Is the City of Sunny Isles Beach authorized to enact an ordinance requiring a condominium association located within the city limits to furnish security guard services upon their premises to curtail the incidence of crime?

In sum:

The City of Sunny Isles Beach appears to have the authority pursuant to section 2(b), Article VIII, Florida Constitution, and section 166.021, Florida Statutes, to adopt an ordinance requiring condominium associations within the jurisdiction of the city to furnish security guard services upon their premises to curtail the incidence of crime.

According to your letter, the city is facing an increase in the number of crimes occurring in certain areas of the city including several high rise apartment complexes and condominiums. The city's police department responds to reported crimes and uses its best efforts to eliminate and curtail crime throughout the city. However, you state that the city's police department cannot maintain a constant presence within a condominium or apartment complex. The city is considering adopting an ordinance that would require condominium associations and apartment complex owners to furnish security guard services upon their premises to curtail the incidence of crime. You are particularly concerned that Chapter 718, Florida Statutes, the "Condominium Act" may preempt or conflict with any proposed local legislation.

Initially, I must advise you that my response is limited to a consideration of municipal home rule powers issues as they relate to your question. Any consideration of whether the particular ordinance enacted may be violative of constitutional guarantees, such as equal protection, or touch on such constitutional issues as impairment of contract would require an examination of the actual terms of any such ordinance and the legislative history related to its enactment. This information has not been provided to us and we cannot speculate on the enactment or content of the proposed ordinance. In addition, the City of Sunny Isles Beach is located within Miami-Dade County, a constitutional charter county.[1] This office has not been advised of any provision of the Dade County Charter that could affect the proposed ordinance and therefore no comment is expressed regarding any possible preemption or conflict issues in that regard.

Section 2(b), Article VIII of the Florida Constitution provides, in part that:

"Municipalities shall have governmental, corporate and proprietary powers to enable them to conduct municipal government, perform municipal functions and render municipal services, and may exercise any power for municipal purposes except as otherwise provided by law."

The Florida Supreme Court has stated that this constitutional provision "expressly grants to every municipality in this state authority to conduct municipal government, perform municipal functions, and render municipal services."[2] The Court stated, in State v. City of Sunrise, that the only limitation on the power of municipalities under this constitutional section is that such power must be exercised for a valid municipal purpose. As determined by the Court, "[l]egislative statutes are relevant only to determine limitations of authority" and municipalities need no further authorization from the Legislature to conduct municipal government.[3]

Pursuant to section 166.021(1), Florida Statutes, municipalities are granted "the governmental, corporate, and proprietary powers to enable them to conduct municipal
government, perform municipal functions, and render municipal services, and may exercise any power for municipal purposes, except when expressly prohibited by law." Subsection (3) of the statute prescribes limitations on the subjects that municipal legislation may address:

"The Legislature recognizes that pursuant to the grant of power set forth in s. 2(b), Art. VIII of the State Constitution, the legislative body of each municipality has the power to enact legislation concerning any subject matter upon which the state Legislature may act, except:
(a) The subjects of annexation, merger, and exercise of extraterritorial power, which require general or special law pursuant to s. 2(c), Art. VIII of the State Constitution;
(b) Any subject expressly prohibited by the constitution;
(c) Any subject expressly preempted to state or county government by the constitution or by general law; and
(d) Any subject preempted to a county pursuant to a county charter adopted under the authority of ss. 1(g), 3, and 6(e), Art. VIII of the State Constitution."

The relationship between local and state legislation was specifically discussed by the
Florida Supreme Court in City of Miami Beach v. Rocio Corporation:

"The principle that a municipal ordinance is inferior to state law remains undisturbed. Although legislation may be concurrent, enacted by both state and local governments in areas not preempted by the state, concurrent legislation enacted by municipalities may not conflict with state law. If conflict arises, state law prevails. An ordinance which supplements a statute's restriction of rights may coexist with that statute, whereas an ordinance which countermands rights provided by statute must fail."[4]

The City of Sunny Isles Beach, therefore, may legislate on any matter upon which the Legislature may act, so long as its ordinance does not forbid what the Legislature has expressly licensed or authorized, or permit what the Legislature has expressly forbidden.[5]

The issue of conflict between local ordinances and state law was addressed in Jordan Chapel Freewill Baptist Church v. Dade County.[6] The court in Jordan Chapel stated that:

"Legislative provisions are inconsistent if, in order to comply with one provision, a violation of the other is required. . . .[T]he sole test of conflict for purposes of preemption is the impossibility of co-existence of the two laws. Courts are therefore concerned with whether compliance with a County ordinance requires a violation of a state statute or renders compliance with a state statute impossible."[7] (emphasis supplied in original)

Chapter 718 of the Florida Statutes, is the "Condominium Act."[8] The purpose of the act, as provided by the Legislature and recognized by the courts, is to recognize the condominium form of property ownership and establish a detailed scheme for the creation, sale, and operation of condominiums.[9] As specifically set forth in section 718.102, Florida Statutes, the purpose of the act is:

"(1) To give statutory recognition to the condominium form of ownership of real property.
(2) To establish procedures for the creation, sale, and operation of condominiums.

Every condominium created and existing in this state shall be subject to the provisions of this chapter."

The operation of a condominium is accomplished by the condominium association, a Florida corporation which can be either a for profit or not for profit.[10] The owners of the units are shareholders or members of the association and the officers and directors of the association are charged with a fiduciary relationship to the unit owners.[11] The powers and duties of the condominium association include those described in section 718.111, Florida Statutes, and "except as expressly limited or restricted in this chapter, those set forth in the declaration and bylaws and chapters 607 and 617, as applicable."[12] The association's powers include, but are not limited to, the maintenance, management, and operation of the condominium property.[13]

The only provision of the Condominium Act which specifically mentions security services is section 718.115, Florida Statutes, relating to common expenses. Pursuant to section 718.115(1)(a), Florida Statutes:

"Common expenses include the expenses of the operation, maintenance, repair, replacement, or protection of the common elements and association property, costs of carrying out the powers and duties of the association, and any other expense, whether or not included in the foregoing, designated as common expense by this chapter, the declaration, the documents creating the association, or the bylaws. Common expenses also include reasonable transportation services, insurance for directors and officers, road maintenance and operation expenses, in-house communications, and security services, which are reasonably related to the general benefit of the unit owners even if such expenses do not attach to the common elements or property of the condominium. However, such common expenses must either have been services or items provided on or after the date control of the association is transferred from the developer to the unit owners or must be services or items provided for in the condominium documents or bylaws. Unless the manner of payment or allocation of expenses is otherwise addressed in the declaration of condominium, the expenses of any items or services required by any federal, state, or local governmental entity to be installed, maintained, or supplied to the condominium property by the association, including, but not limited to, firesafety equipment or water and sewer service where a master meter serves the condominium, shall be common expenses whether or not such items or services are specifically identified as common expenses in the declaration of condominium, articles of incorporation, or bylaws of the association." (e.s.)

Thus, security services generally are considered common expenses which are reasonably related to the general benefit of the unit owners and must be provided on or after the date control of the association is transferred from the developer to the unit owners or must be provided for in the condominium documents or bylaws. However, as the statute makes clear, expenses for services required by a governmental entity shall be considered common expenses whether or not those services are specifically identified in the condominium documents.

With the exception of the statute discussed above, no provision of Chapter 718, Florida Statutes, speaks to a requirement for providing security services on condominium property. Thus, I cannot say that the subject is preempted to the state or would conflict with any current statutory provision in the Condominium Act. In light of the home rule powers of the municipality, it would appear that the City of Sunny Isles Beach has the authority to enact such an ordinance.

I would also note that the courts of this state have recognized the broad scope of municipal police powers and it appears that the legislation you propose has been advocated in the interest of the public health, safety, and welfare. It is generally the case in Florida and elsewhere that "assuming a regulation is necessary for the welfare of the public, and is not physically invasive or confiscatory of some existing property right, it is probably within the government's 'police power' to enact it."[14]

However, while Florida municipalities enjoy broad powers to adopt police power legislation, those powers must be exercised within the limits of the Florida Constitution. Thus, a police power ordinance is subject to the constitutional limitations provided by Article I, section 2, Florida Constitution, that any such legislation not be unreasonable, arbitrary, or capricious, and that the means employed by the legislative body have a real and substantial relation to the object sought to be attained.[15] Thus, without comment on the policy of enacting such an ordinance, in considering the proposed ordinance, the City of Sunny Isles Beach should be mindful of whether such an ordinance imposing a security requirement on a particular form of multi-family residential ownership, that is, a condominium association, would pass constitutional muster as applying equally and uniformly to all persons similarly conditioned.[16]

While this office has identified no Florida case law considering the issues surrounding adoption of a local security requirement for condominium property, several cases from New Jersey discuss a number of issues presented by such legislation. In 1993, the Supreme Court of New Jersey reviewed an ordinance passed by the City of Newark requiring certain private property owners to provide armed security guards on their premises for certain periods during the day.[17] The Newark ordinance was challenged by apartment owners who argued, among other things, that the ordinance was an improper attempt by the city to delegate its governmental duty to provide police protection. The New Jersey courts recognized that local governments bear the burden of providing police protection and that this duty may not be transferred to private citizens. However, as the Court had noted in a line of cases,[18] local governments may call on private citizens to provide assistance in the performance of that duty. Thus, the New Jersey Supreme Court held that "[t]he requirement of an armed security guard for plaintiffs' buildings in no way constitutes an abdication of the City's own duties; rather, it manifests a rational legislative determination that a certain class of buildings poses special risks of crime and that the municipal police alone cannot possibly deal with all the crime in the City in a timely manner."[19]

Accordingly, it is my opinion that the City of Sunny Isles Beach appears to have the authority pursuant to section 2(b), Article VIII, Florida Constitution, and section 166.021, Florida Statutes, to adopt an ordinance requiring condominium associations within the jurisdiction of the city to furnish security guard services upon their premises to curtail the incidence of crime.

Sincerely,

Bill McCollum
Attorney General

BM/tgh

--------------------------------------------------

[1] See Art. VIII, s. 6(e) and (f) and s. 11, Fla. Const.

[2] State v. City of Sunrise, 354 So. 2d 1206, 1209 (Fla. 1978).

[3] Supra at 1209. See also City of Miami Beach v. Forte Towers, Inc., 305 So. 2d 764 (Fla. 1974).

[4] City of Miami Beach v. Rocio Corporation, 404 So. 2d 1066, 1070 (Fla. 3d DCA 1981), petition for review denied, 408 So. 2d 1092 (Fla. 1981).

[5] See generally 12 Fla. Jur. 2d Counties and Municipal Corporations, s. 187.

[6] 334 So. 2d 661 (Fla. 3d DCA 1976). And see City of Kissimmee v. Florida Retail Federation, Inc., 915 So. 2d 205 (Fla. 5th DCA 2005) (generally the fact that local legislation imposes additional requirements on a person or business is not evidence of conflict); F.Y.I. Adventures v. City of Ocala, 698 So. 2d 583 (Fla. 5th DCA 1997) (if no issue of preemption, conflict with state statute is given a very strict and limited meaning; they must contradict each other in the sense that both legislative provisions cannot co-exist, i.e., in order to comply with one, a violation of the other is required).

[7] Id. at 664.

[8] See s. 718.101, Fla. Stat.

[9] See, e.g., Neuman v. Grandview At Emerald Hills, Inc., 861 So. 2d 494 (Fla. 4th DCA 2003); Raines v. Palm Beach Leisureville Community Association, Inc., 413 So. 2d 30 (Fla. 1982) (purposes of Ch. 718, Fla. Stat., are to give statutory recognition to condominium form of ownership and to establish procedures for creation, sale, and operation of condominiums).

[10] Section 718.111(1)(a), Fla. Stat.

[11] Id.

[12] Section 718.111(2), Fla. Stat.

[13] Section 718.111(3), Fla. Stat.

[14] See, e.g., Lee County v. Sunbelt Equities, II, Ltd. Partnership, 619 So. 2d 996 at 1006 (Fla. 2d DCA 1993); Dragomirecky v. Town of Ponce Inlet, 882 So. 2d 495 (Fla. 5th DCA 2004) (regulations duly enacted pursuant to lawful authority that relate to the public health, safety, morals, or general welfare are presumptively valid).

[15] See State v. Leicht, 402 So. 2d 1153 (Fla. 1981), cert. denied,102 S.Ct. 1611, 455 U.S. 989, 71 L.Ed 2d 848 (1982); Rainey v. Nelson, 257 So. 2d 538 (Fla. 1972); Iacovone v. State, 639 So. 2d 1108 (Fla. 2d DCA 1994), affirmed, 660 So. 2d 1371 (Fla. 1995); City of Panama City v. Head, 797 So. 2d 1265 (Fla. 1st DCA 2001).

[16] See Haber v. State, 396 So. 2d 707 (Fla. 1981); City of Panama City v. Head, supra; 515 Associates v. City of Newark, 623 A.2d 1366 (N.J. 1993).

[17] 515 Associates v. City of Newark, 623 A.2d 1366 (N.J. 1993).

[18] See e.g., Sunrise Village Associates v. Borough of Roselle Park, 438 A.2d 945 (Law Div. 1980), affirmed, 438 A.2d 944 (App. Div. 1981), cert. denied, 446 A.2d 144 (N.J. 1982); and Hudson Circle Servicenter, Inc. v. Kearny, 359 A.2d 862 (N.J. 1976).

[19] 515 Associates v. City of Newark, 623 A.2d 1366, at 1372-1373 (N.J. 1993).

Quoted in HOA Leader/sex offenders and how to deal with them

2009-03-20T12:39:00.000-07:00

This is a post from the HOA Leader:

Does Your HOA Have a Policy About Sex Offenders? Should It?

==============================

===================================

The issues surrounding sex offenders moving into a community are
always difficult. Fear and emotion understandably run high.

How can you help your homeowners association deal with this
challenging issue? Should you create a policy? If so, what should
it say? What can a policy do?

This is another area where state laws vary, so you should start
by determining what your state's rules are. Some states allow
HOAs to create restrictions. Florida, for example, is one of them.

Bob Tankel, principal at the law firm of Robert L. Tankel P.A. in
Dunedin, Fla., told us that if an association in Florida wants to
keep anyone who has been convicted of a crime and has served his or
her time out of the association, "it has to be voted on by the
members and in the governing documents. I strongly urge that
associations consider a document amendment to deal with the issue."

"If it's not in your governing documents," adds Tankel, "work
with legal counsel and local law enforcement to determine the
best route of notification, if any. There's no standard protocol
for what to do about sexual predators or offenders within a
community association. It's not defamation to tell people that
someone is a convicted criminal, but it may be beyond the
association's jurisdiction."

Get more info--including 5 tips for protecting your homeowner
association residents from a sex offender--in our new article
(free access): http://www.hoaleader.com/public/242.cfm

Best regards,
Matt Humphrey
President

Here's Your Sign...

2009-03-19T08:34:00.000-07:00

Bill Engvall one of the Redneck Comics has a routine that goes like this:

Stupid people should have to wear signs that just say, "I'm Stupid"

That way you wouldn't rely on them, would you? You wouldn't ask them anything. It would be like, "Excuse me...oops, never mind. I didn't see your sign." ...

This was received today from a person who has a license from the State of Florida to engage in managing condominium associations....

Would it be wrong of me to assume that the Bank Washington Mutual that took title of Unit A-2 1997 Main street. will be paying the assessment from here on out until the sale of the unit?

Sincerely,

A licensed manager, LCAM

Here's YOUR sign......

Proposed Texas constitutional amendment would prohibit HOA foreclosures

2009-03-13T09:11:00.000-07:00

This has to be be the most stupid idea in the world; let people who pay for their assessments, and on time, suffer for the people who don't pay. The legislator has apparently never met anybody who operates a community association. If this was ever enacted in Florida, you might as well turn out the lights and throw away the keys....

It could be worse, I guess.

2009-03-05T19:59:00.000-08:00

Was it Randy Newman who sang of Cleveland, a la Paris, City of Lights, City of magic? Ahhh yes it was.

I came across this article and wondered if it is the tale of Lehigh Acres in a year or two, maybe Miami.....

I guess things could be worse, read it and weep for the people of Cleveland.....

Deja Vu All Over Again

2009-02-27T12:15:00.000-08:00

I'm not really a fan of the republican mantra that they are "shocked, absolutely shocked" to see what a mess we're in, when it was caused by reckless tax cuts and a Congress full of willing participants in creation of the mess we find ourselves in that date back to 2000-2006. Where is their "bi-partisanship"?

Setting that aside I find it interesting that they report that MORE THAN HALF of all reworked mortgages are back in default again within six months. Yet these same people threw $350 billion down the drain with Messrs. Bush and Paulson without any oversight. We need the Presdient to ask Mr. Giuliani if he is willing to go after the "usual suspects" like Mr. Thain and others who sacked the institutions they worked at and let them join Dennis Koslowski in the pokey

"Free Fallin"

2009-02-26T07:21:00.000-08:00

Like the Tom Petty song, real estate prices are in a free fall in Lee County. Again, this shows the need to be absolutely vigilant about staying on top of your receivables.

Down and down we go, where we stop...Nobody knows

2009-02-23T14:04:00.000-08:00

here is a sign of the times taken off Craigslist, sick, sick, do these idiot owners know they can be held liable for a deficency judgment? Probably not or if they do, what do they care?

Facing Foreclosure? I will buy your a/c unit (SW Florida)

Reply to: serv-1046637202@craigslist.org ^{[Errors when replying to ads?]}
Date: 2009-02-23, 9:48AM EST

Are you facing foreclosure? Do you need cash? If you still have legal possession of your home we will buy your Air Conditioning unit, appliances, cabinets, marble countertops etc.
Email us with your make, model, size and year of a/c unit for a price quote. CONTACT US VIA EMAIL with your #.....WE WILL CALL YOU BACK

Lee County foreclosures-15 seconds, 2 questions and 45 days to get out!

2009-02-19T14:19:00.000-08:00

For an interesting description of how the court system at ground zero of the mortgage meltdown is trying to cope with the greatest Ponzi scheme in history (maybe the second greatest, after Social Security) as reported by the Wall Street Journal, click on this link to read about the "Rocket Docket" that has beeen adopted by the court system...

State Farm To Exit Florida

2009-02-13T15:51:00.000-08:00

Good riddance, the Legislature either has to get off it's collective rear end and team up with our empty suit Governor and press for a national catastrophis insurance program, or agree that the sate witll say pay either the first $35 Billion in hurricane related dmanges or will pay everythign above say $100 Billion; either way there is no metric to use for determining the possible extent of a huge hit and all insurance will vanish.

-NEWS FROM THE FLORIDA OFFICE OF INSURANCE REGULATION-

FOR IMMEDIATE RELEASE

February 13, 2009

Contact: Ed Domansky

850-413-2515

Edward.Domansky@floir.com

Florida Insurance Commissioner Approves State Farm Withdrawal Plan, With Conditions

TALLAHASSEE, Fla. – Florida Insurance Commissioner Kevin McCarty today announced that he has conditionally approved the withdrawal plan submitted Jan. 27 to the Office of Insurance Regulation (Office) by State Farm Florida Insurance Co. (State Farm Florida) and State Farm Mutual Automobile Insurance Co. (State Farm Mutual). Today’s order allows the State Farm companies to move forward with their plan to withdraw from the Florida property insurance market, but stipulates several key conditions with which the company must comply.

Commissioner McCarty’s conditional approval order states in part:

State Farm Florida shall surrender its Certificate of Authority within 30 days;
State Farm shall facilitate the orderly transition of policies from State Farm Florida to the private marketplace in a method directed by the Office and shall not place any of the policies in Citizens;
State Farm shall not interfere with the appointment of its agents to other private insurance companies to place State Farm Florida policies directly with those other private insurance companies;
In an effort to minimize the impact of market disruption on all of its policyholders, State Farm shall issue pro-rata refunds of premium to any policyholder seeking to voluntarily cancel or non-renew a policy and will not short-rate the return premium for any policy in any line, whether it be automobile, boat, or property insurance coverage;
State Farm shall consider all offers to buy or assume all or part of its business. A copy of any such offer shall be provided to the Office within 48 hours of its receipt.

“I could not approve the withdrawal plan State Farm submitted, because, as Florida law states, I believe that plan was ‘hazardous’ to State Farm policyholders and to the public,” said Commissioner McCarty. “State Farm intended to dump all of its customers into Citizens; and that is not acceptable for their customers or for the people of Florida. We have private companies that are eager to grow their businesses, and I expect State Farm to fully cooperate in facilitating a smooth transition of their policyholders to those companies.

The law governing the withdrawal of an insurance company and the Office’s review of a withdrawal plan can be found in section 624.430(2), Florida Statutes.

State Farm now has 21 days to review Commissioner McCarty’s Order and to decide whether to abide by it or to request an administrative hearing by filing a petition with the Office.

A detailed chronology of all events associated with recent State Farm issues is available on the Office Web site, www.floir.com and in the Office’s Jan. 12 news release announcing Commissioner McCarty’s Final Order denying State Farm’s 47 percent average statewide rate increase.

About the Florida Office of Insurance Regulation
The Florida Office of Insurance Regulation (Office) has primary responsibility for regulation, compliance and enforcement of statutes related to the business of insurance and the monitoring of industry markets. The Office protects Florida consumers through regulatory oversight of: insurance company solvency, policy forms and rates, market conduct performance and new company entrants to the Florida market. For more information about the Office, please visit www.floir.com. If you would like information about the Cover Florida Health Care Access Program, please go towww.coverfloridahealthcare.com.

# # #

--------------------------------
Edward C. Domansky

Director of Communications

Florida Office of Insurance Regulation

200 East Gaines Street

Tallahassee, Florida 32399

850-413-2515

www.floir.com

Lehigh Acres, Ground Zero

2009-02-10T17:54:00.000-08:00

Nothing more to say...greed, recklessness, irresponsibility, bad government, a perfect storm, coming soon to all of the Sunshine State....Lehigh Acres

Foreclosures? Want to vomit? Read on!!

2009-02-09T17:30:00.000-08:00

Want to know how sick the system is? Below is just part of one day's analysis of the status of mortgage foreclosures we answered and are monitoring. As you know, we were recently forced to start charging a flat fee of $150 to answer and monitor these cases. I have 2 full time people doing this. I think we just passed a BILLION Dollars in foreclosure defenses, over 3,200 at about $300k each...

Here is how to read them:

date-initials of my employee-action taken-followup

FC= foreclosure; MSJ= Motion for Summary Judgement' OC= Opposing Counsel.

This is absolutely sickening! When we call the plaintiffs lawyers, they pull the file and move; if not they only move if their clients scream at them, and because Uncle Sam is bailing everybody out , what do the "lenders" care? They've already raped the investors, and sliced and sliced up the packages of these worthless mortgages.

The lawyers for the plaintiffs are totally under water, and their clients don't really want the properties anyway, what with having to pay back assessments, ongoing assessments, property taxes, maintenance &tc., &tc......

These matters are moving at about the speed of molasses, which is why I beat the drum about moving aggressively against delinquent owners, and having clients consider authorization of their own foreclosures even when the first mortgage holder starts foreclosure. This is done on a not to exceed fee of $1500, including costs. We can usually go start to finish in 5-7 months and the associations can then rent out the properties. Remember, no guarantees, but if your association sits on it's hands, you will get death by slicing

I believe it will get worse as the lenders all wait for Uncle sam to see how much they can sucker the taxpayers for in a bailout. Current valuation is about 22 cents on the dollar wait, it gets worse, I think we are half way through, maybe. Just wait until all of the resets on loans come this year, and all of the foreclosed properties get on the market at 50% of their former "value."

12-06-07-GT-Opened Mtg FC file. XXXXXX's office answered complaint 10-11-07.

docket pulled - nothing since answered filed. Check status 2mos.

02-20-08-GT-Per Gail, OC is awaiting hearing date for MSJ. Check status

2mos.

08-08-08-GW-Pulled docket nothing since April. Status 2 mo

08-29-08-GW- MSJ filed. check 1 mo for hearing date

02-02-09-GW- Nothing on docket since 8/08. Check 2 mos

2-06-07-GT-Opened Mtg FC file. XXXXXXX's office answered complaint 10-11-07.

docket pulled - nothing since answered filed. Check status 2mos.

02-20-08-GT-Per Gail, OC is awaiting hearing date for MSJ. Check status

2mos.

08-08-08-GW-Pulled docket nothing since April. Status 2 mo

08-29-08-GW- MSJ filed. check 1 mo for hearing date

02-02-09-GW- Nothing on docket since 8/08. Check 2 mos

04-09-08 LAP Answered Complaint. Check status 3 mos.

08-08-08-GW- Pulled docket. Nothing since April. Check 2 mos

11-21-08-GW- MSJ filed. Check 2 mos for hearing date

02-09-09-GW- Check 2 mos for hearing

12-03-07-GT-Answered Mtg FC complaint. Check status 3mos.

03-04-08-GT-MSJ was set for 02-28-08. Check status 2mos.

08-13-08-GW- Sale date Septemebr 8, 2008. Check 1 mo for CT

09-09-08-GW- OC filed Motion to cancel sale. Check 1 mo for resch.

02-09-09-GW-Case reopened 9/08. Nothing filed since 9/08. Check 3 mos

03-16-08-GT-Gail answered Mtg FC complaint 03-07-08. Check status 3mos.

08-08-08-GW- Pulled docket. Service being perfected. Check 2 mo

02-09-09-GW- MSJ filed 11/08. Check 1 mo for hearing

03-16-08-GT-Gail answered Mtg FC complaint 02-12-08. Check status 3mos.

05-22-08-GT-MSJ hearing set for 07-03-08. Check status 2mo.

08-08-08-GW-Pulled docket. Nothing since April. Check 2 mos

02-09-09-GW- Pulled docket. MSJ filed 4/08 nothing since. Emailed atty for

status

03-16-08-GT-Gail answered Mtg FC complaint 03-04-08. Check status 3mos.

04-20-08-GT-Owner filed BK 04-09-08.

08-20-08-GW-OC filed Amended Amts Due and Owing. Check status 2 mos

08-22-08-GW-BKR discharged July 20, 2008.

02-09-09-GW- Defaults being filed 1/09. Check 2 mos for MSJ

11-21-07-GT-Answered Mtg FC complaint. Check status 2mos.

01-28-08-GT-Stern's office is perfecting service and entering defaults.

Check status 2mos.

08-08-08-GW- Nothing on docket since December. Check 2 mos

02-09-09-GW- Cas dismissed 8/14/08. File closed

11-16-07-GT-File pulled for case status update. Docket shows no movement

since 04-03-07.

11-28-07-GT-Emailed status request to Echevarria.

11-29-07-GT-Per plaintiff's atty, this file is on BK hold. Check status

3mos.

03-04-08-GT-No movement on docket since 04-03-07. File to Gail to call OC.

03-07-08-GT-Per Gail's email from OC, file is still on BK hold. BK is

active. Check status 3mos.

10-24-08-Amending MSJ Check 3 mos for hearing Check 2 mos

02-05-09-GW- BKR terminated. Check 2 mos

02-09-09-GW- 10/08-Lenders atty amending MSJ and reschedule sale date.

03-09-08-GT-Gail answered Mtg FC complaint 02-12-08. Check status 3mos.

06-27-08-GW-Sale date 7/23/08. Check 1 mo for CT. No fax sent per Kathy.

08-04-08-GW-Sale to third part for $99,700. Check 1 mo for CT

4-18-08 LAP Answered Complaint. Check status 3 mos.

02-09-09-GW- Nothng on docket since 7/08. Check 2mos

12-27-07-GT-Answered Mtg FC complaint. Check status 2mos.

03-02-08-GT-OC is preparing defaults. Check status 2mos.

04-09-08-GT-BK filed 03-31-08.

05-22-08-GT-File was administratively closed but NOT dismissed. Check status

2mos.

09-18-08-GW-9/18/08 Hearing cancelled per phone call 9/17 from OC office.

Check status 2 mos

09-30-08-GW-Hearing cancelled. check 2 mos for reschedule

02-09-09-GW-Nothing on docket since 9/08. Court has the file as closed. No

dismissal filed. Check 2 mos

12-17-07-GT-Answered Mtg FC complaint. Check status 2mos.

03-02-08-GT-OC is preparing for defaults. Check status 2mos.

07-17-08-GW- Check status 2 mo

08-04-08-GW-MSJ hearing for 7/31/08 cancelled. Check status 2 mos

02-09-09-GW- Hearing cancelled. Notingo n docket since 7/08. Check 2 mos

01-07-08-GT-Answered Mtg FC complaint. Check status 2mos.

02-04-08-GT-Owner is in BK.

03-09-08-GT-File is on BK hold. Check status 3mos.

06-15-08-GT-BK was discharged 03-24-08. OC is restarting the Mtg FC action.

Check status 2mos.

06-18-08-GW-MSJ hearing 7/17/08. Check 1 month after.

09-15-08-GW- Hearing cancelled. check 2 mos for reset.

11-01-08-GW-MSJ filed Check 2 mos for hearing date

02-09-09-GW-MSJ hearing 4/21/09. Check 1 mo for sale date

01-21-08-GT-Answered Mtg FC complaint. Check status 3mos.

07-17-08-GW-Service being perfected. Check 2 mo

02-09-09-GW- Noting on docket since 6/08. called lender atty they are

preparing the MSJ in about a month Check 1 mo

09-10-08-GT-Opened FC file. Ran clerk search - clear. Ready for TS.

10-03-08-GT-Have not rec'd TS back from Mike. Check status 2wks.

10-09-08-GT-Updated clerk search - Mtg FC found. File converted to Mtg FC.

Check status 3mos.

10/28/08-GW-Ans Complaint. Check status 3 mos

03-18-08 LAP Answer Complaint - Check status 3 mos.

08-04-08-GW-MSJ hearing 9/22/08. Check 1 mo for sale date

10-18-08-GW-MSJ hearing 11/4/08. Check 2 mos for sale date

11-13-08-GW- Sale date 12/5/08. Check 1 month for CT

11-18-08-GW- Bankruptcy filed 11/5/08. Check 3 mos

12-01-08-GW- Foreclosure sale cancelled Check 2 mos

02-09-09-GW- Nothing on docket since 12/08. Check 2 mo

Race to the Courthouse Steps-2009 version

2009-02-06T13:57:00.000-08:00

The situation is bad in Florida. We are now handling about a BILLION dollars of first mortgage foreclosures. When an owner is delinquent, the board needs to consider moving as fast as possible in the collection and foreclosure process, and try to take title and rent the property before the "lender" finishes the foreclosure. The lender foreclosures are taking anywhere from 9 months to TWO YEARS, as they don't want to pay taxes, assessments, insurance, etc., etc. Watch my video here for more details.

See my other videos and articles on the issues of the day at www.condocollections.com

Chinese economy bad too, so are the "jokes"

2009-02-04T15:37:00.001-08:00

BEIJING (Reuters) - Millions of migrant workers may be out of a job and China's once booming economy may be locked in a downward spiral as the global economic crisis bites, but for a particular Chinese brand of humor it's been a boon.

Many of the jokes have been circulating online, or via text message in a country whose population is obsessed with their mobile phones.

A bank worker calls a colleague, goes one joke on the tiexue.net bulletin board.

"Hey, how's it been going?"

"Not so bad."

"Oh, sorry, I've definitely called the wrong number."

Others adopt a similar tone, but riffing off Communist propaganda slogans.

"In the face of the financial crisis, I have bravely stood up and am marching forward! That's because ... I can't pay back my loans and the bank has repossessed my car."

Internet use has exploded in recent years, but the government keeps a close tab on what appears, removing offensive comments or detaining those who criticize too much on certain sensitive topics, such as human rights.

This hasn't stopped people taking to the Internet to laugh about the crisis, or crack witticisms.

Other Chinese have been messing around with word games, albeit not to everyone's taste, the tonal Chinese language being a gift to jokers and wits alike because a single pronunciation can have several wildly different meanings.

A posting on popular Chinese website sina.com.cn cautions people about sending text message greetings for the Lunar New Year, which was marked last week, lest their meanings be misinterpreted.

The website has published a list of greetings not to send.

"Wealth surging in" is out, as it has the same pronunciation as "Lay-offs surging in."

Likewise, the website cautions people not to wish friends or family "May you have everything you wish for," fearing it could be interpreted as "Pay cut by 40 percent."

The issue has struck an especially raw nerve in China, where superstitions attached to the new year period are strong.

"The atmosphere in the office is very tense, and texts which in past years may have meant good luck are now being seen as a stroke of bad luck," the website paraphrased one worker as saying.

Another joke circulated by text message pokes fun at the fake money which is becoming a worry as incomes start to falter amid what the government calls the "financial tsunami."

"Two people produce fake 15 yuan notes," it starts, already unlikely in itself as there is no such thing as a 15 yuan bill in China.

"They decide to go to a remote mountain area to spend it and buy a candied melon slice for 1 yuan. They burst into tears when they get two 7 yuan notes in change," it ends, the joke being there is also no such thing as a 7 yuan note.

More Pain to come

2009-02-04T15:19:00.000-08:00

I read today that Credit Suisse expects about $350 BILLION in mortgage resets in 2009, the majority of which are option adjustable rate loans. What with depressed values and the end of the "teaser" rates, even with current low interest rates, I wonder how many people will be sending "jingling envelopes" to the loan servicers, knowing that their credit will not support a new loan, or that their LTV rate is negative 35%...batten down the hatches everyone.

Comply with the FDCPA when you collect!!!

2009-01-30T16:16:00.000-08:00

Several years ago, the collection of unpaid condominium association assessments was relatively simple. The procedure to collect remained the same, but with values rising by 2% per month or more, condominium associations who had to go through the foreclosure process, which occurred about 40 times (!) less often than they do now, were paid in full even at the sale, due to the rising price environment.

It has come to my attention that in this declining price environment, some management companies are adding certain fees to offset their internal costs of bookkeeping. I understand the problem that Community Association Managers face. In these unprecedented times, the cost of additional bookkeeping puts a strain on their budget, and the company has somewhat of a “no-win” choice: either find a way to isolate the costs of the extra bookkeeping, such as adding an “actual cost” into the 45-day initial demand letter in the homeowner association setting, (as allowed by law, at least for the time being) or force a rise in the basic management fee, thereby punishing the people who pay for the costs incurred by the people who don’t pay.

The problem arises when those management companies, or the attorneys who represent the associations, attempt to collect an additional fee or cost from the delinquent owner through the demand process. In my opinion, that is a violation of the Fair Debt Collections Practices Act (the “Act”). The Act provides that a debtor is only obligated to pay for debts that he/she legally contracts to pay. In the case of a Condominium Association, the legal contract and agreement thereto is the Declaration of Condominium and the Condominium Documents. Additionally, state law may allow imposition of other costs (the “actual costs” for HOAs, as referred to above).

In the condominium setting, however, there is no authority either under state law, the Act, or the documents to segregate a separate cost and impose that cost against debtors. Make no mistake; the issue is not whether the associations and their managers have the legal right to agree, by contract, for the association to pay the management company additional fees to pay for the costs of keeping track of delinquent owners. That is a matter of contract between the association and the management company. It is perfectly legal to charge an association, say $25 per delinquent owner. That is is a cost of the contract shared by all owners. The problem arises because neither the association, nor the management company, nor counsel for the association, can legally require that a unit owner debtor pay those fees.

I have always counseled my clients and their management companies not to ask for those fees when collecting, either in the initial demand sent by the management company or through legal counsel. While this may not create liability for the Associations, I believe it creates extensive potential liability for the lawyers and management companies who do so.

What’s the bottom line? Management companies and lawyers who demand that condominium unit owners pay additional fees and costs other than those allowed by law are exposing themselves to liability, with the result of possibly hundreds or thousands of individual lawsuits being brought against them for an alleged violation of the Act. While there have been some notable class action lawsuits involving the law firm of Katzman and Korr and my former law firm, Becker & Poliakoff, if I was a plaintiff’s lawyer, I would run an ad seeking out people who may have been charged those extra fees and proceed to bring a thousand actions, each on behalf of an individual owner, against entities who violate the law. While I don’t advocate this, and I certainly don’t wish it on any management company or any lawyer, I feel strongly that my clients and their managers should strictly follow legal guidelines for collections. Being aggressive and taking prompt action is one thing; violating federal and state laws is another.

Fannie Mae Piles On

2009-01-30T11:17:00.000-08:00

Having helped to create the economy threatening debacle we find ourselves in Fannie Mae (essentially an arm of the federal Government) now decides to make it more expensive to buy a condo.

The Federal National Mortgage Association or Fannie Mae has taken steps to make the cost of purchasing or refinancing a condo more expensive unless the purchase makes a sizable down payment.

With many lenders are already wary of condo loans because of their default rate, Fannie Mae has added a fee of .75 percent of the loan amount of a 30-year fixed mortgage, for borrowers who put down 25 percent of the purchase price or less, effective April 1. In other words, if a condo is priced at $300,000, with a mortgage of $240,000 (a 20 percent down payment), and Fannie Mae will be purchasing the loan from your lender, it will assess the buyer an additional $1,800.

Regulating political signs

2009-01-24T14:41:00.000-08:00

Now that the battles have ended everywhere but in minnesota (isn't it nice for Florida to be OUT of the spotlight?), it is a good idea to take a look at political signs and their regulation in community associations.

Owners may insist that they have "Freeedom of Speech" and they are correct, to a point. The First ammednment to the United States Constitution prevents THE GOVERNMENT from regulation certain types of speech, political speech having the most protection of all

While government entities can't restrict political speech on private property, homeowner associations are based on contractual agreements among owners to abide by common rules. Therefore, associations aren't bound by rules preventing governments from placing restrictions on political displays.

They are, however, governed by their state's law. In New Jersey, such bans are permitted. In the 2007 case of Committee for a Better Twin Rivers v. Twin Rivers Homeowners Assocication, the New Jersey Supreme Court held that associations could place reasonable limitations on political speech. Twin Rivers had limited signs to one per lawn and one per window and banned the posting of signs on utility poles and natural features within the community. The court found those limitations reasonable.

On the other hand, for example, since 2005 Texas law has prohibited associations from adopting or enforcing rules that prohibit owners from displaying political signs advertising a candidate or ballot initiative on their own property. The law covers the period from 90 days before an election to 10 days after. If a Texas association's governing documents don't ban political signs but only restrict how they're presented (in the ground or in a window) and their number, the association is probably on solid legal ground.

Washington also prevents associations from barring political speech. According to Washington statute, an association's governing documents can't prohibit the outdoor display of political yard signs by owners or residents on their own property before a primary or general election. However, Washington does allow reasonable regulations on the placement and manner of political sign displays.

There is no such protection in Florida. Remember that even if your documents allow your association to ban or regulate political signs, you may run into difficulties enforcing your rules. A McCain for President sign plainly fits the definition of a political sign, but it's arguable whether a peace sign is political. Case in point: In December 2006, a homeowners association in Pagosa Springs, Colo., asked a resident to remove a wreath shaped like a peace sign from her property. The association backed down after negative publicity, but the example highlights the fact that it's hard to decipher what signs even fit the definition of political.

Improper police behavior dismissed as "technicality"

2009-01-23T14:47:00.000-08:00

A few years ago, it was fashionable to state that criminals were getting off on a "technicality" like a violation of their rights under the constitution for illegal searches and seizures. The Supreme Court decided a case described by my friend and colleague, Todd Foster, below. It is a bad decision, but that's the kind of Court we get when we elect certain types of presidents......

While recently reading new cases, it occurred to me that you may be interested in new or significant developments in federal criminal law that I come across in my work. With that in mind, I have decided to send occasional emails summarizing interesting new cases from around the country.

Herring v. U.S. The Supreme Court, on January 14, 2009, constricted even further the right to suppress evidence illegally obtained by law enforcement. In this case, the Court held that even though the government conceded the defendant (Herring) had been illegally searched, the evidence would not be suppressed. Twenty five years earlier, in U.S. v. Leon, the Court held that evidence obtained by officers relying on an invalid judicial act need not be suppressed, as there is no deterrent value in punishing the police for relying on a judicial act. In Herring the defendant was illegally arrested on an invalid arrest warrant which the police "negligently" failed to purge from their system. Upon arresting Herring on the invalid warrant, officers found a gun and drugs, which formed the basis of the prosecution. Speaking for the 5-4 majority, Chief Justice Roberts found no deterrent value in suppressing this evidence either, as the negligent act of the police department in failing to clear the warrant was not sufficiently "objectively culpable" to require suppression.

A strong dissent authored by Justice Ginsburg points out that suppression is required to make sure the police act diligently. She argues the civil concepts of respondent superior and tort liability for negligence demonstrate that our system relies upon individuals and entities acting with care, and this ruling does not. She mentions frightening flaws in numerous government databases such as NCIC and the terrorist watch list, and wonders what the impact on individual liberties will be from a rule excusing scrupulous monitoring and updating of such databases.

I think the dissent has it right. Suppression issues involving clearly inadmissible evidence have now become much harder for the defense. When all else fails for the government, the prosecution can now argue that the officer was merely negligent, leaving the burden to the defense to show the wrongful act was done with a wrongful or reckless purpose.

Speaking of unlawful acts, the Court of Appeals for the Ninth Circuit earlier this month upheld the Medicare fraud conviction of a doctor despite the failure of the charging indictment to allege the essential element of willful misconduct and the judge's erroneous charge to the jury that the government need not prove the doctor knew his acts were unlawful. Finding these errors waived or excusable as harmless error, the Court upheld the conviction and the 180-month prison sentence. Might the result have been different had Dr. Awad been charged under a facially valid indictment, and the jury properly instructed? We will not know unless the case is re-heard or taken to the Supreme Court (U.S. v. Awad, No. 06-50578, Op. filed January 12, 2009).

Until next time,

Todd

Open season

2009-01-23T09:04:00.000-08:00

There used to be a saying that only widows and orphans were safe while the legislature was in session; the past 10 years have vitiated that concept, especially the upcoming Legislature who wants to punish those with the least in the state so the tax cuts given while JEB! was governor are maintained.

Senator Fasano has introduces a condo bill with some interesting changes for your perusal.

On the other hand, we may be only 1/3 through....

2009-01-22T13:41:00.000-08:00

“Credit losses could peak at a level of $3.6 trillion for U.S. institutions,” famous forecaster of doom and gloom Nouriel Roubini said this week, “half of them by banks and broker dealers. If that’s true, it means the U.S. banking system is effectively insolvent, because it starts with a capital of $1.4 trillion. This is a systemic banking crisis.”

Total financial write-downs and losses have now surpassed $1 trillion since the start of this crisis in mid-2007. That’s puts us barely a third of the way though this mess, if you follow Roubini’s logic.

Could this be the bottom?

2009-01-19T06:58:00.001-08:00

Centex has just sold a parcel of land it acquired in Palm Beach County for development ....read about it here, you might be surprised!

Renting/foreclosed properties

2009-01-18T09:16:00.000-08:00

It goes without saying that we are in a depression in the multifamily commonly owned property industry in Florida. The price and value of Condo, HOA and other types of property is in the process of reverting to the mean.

Now I am not a fortune teller, as that is contrary to my religion; additionally I have been right for the wrong reasons before and vice versa. All I know is that I saw a half -billion dollars worth of condo projects in Sunny Isles when I was in South Florida for the BCS that has not even been finished yet; they will be finished and sit empty until foreclosed on, and the lender, and then we the people will take the haircut now that all financial losses have been socialized and all profits were, of course, privatized. Prices will continue to tumble for a looooong time, IMHO. Assessments need to be collected more urgently than ever in the midst of this disaster.

What are ongoing associations to do?

Well for one thing, when you amended your documents 3, 4 and 5 years ago to prohibit rentals in the first "x" years of ownership or capped rentals at "x" percent of units, I hope you included a sentence that says "This shall not apply to the association."

I just took over representation of a community in Gibsonton where their lawyer helped them amend LAST JULY and did not place that language in the amendment. Now, I understand as well as anybody why my communities wanted that language; there were so many speculators buying property hat they were in danger of becoming filled with tenants who have little interest in the long term success of the community. However by doing so, the flip side is that in this extremely dangerous market, if the association forecloses and takes title to the property, it will face a political and perhaps a legal problem if it takes title due to a foreclosure and tries to rent pending foreclosure of the first mortgage.

What's the bottom line? No matter what your documents say, the association should aggressively foreclose and take title to units that do not pay. People need to know that they will not hold on to their property for long, and that the association will do everything it can to divest them from title, and rent the unit to recoup some of the lost payments.

That's all I have to say about that....

Dealing with "Prescription Pets"

2009-01-12T14:21:00.000-08:00

One of the hottest topics in Community Association Law is the owner who requests to keep a pet as a "Reasonable Accommodation" under the Fair Housing Act. Just because a member requests permission to keep an emotional support animal doesn't mean you have to grant it. Here are some questions you should ask when you get such a request. If the answer to any of these questions is no, you may be entitled to deny the request.

1) Is the member disabled? According to the act, someone is disabled when they have a physical or mental impairment that substantially limits one or more major life activities This determination is not for managers or directors to try and determine on its own. Community association managers and directors are mot experts and therefore aren't qualified to make medical diagnoses. They must instead seek the professional opinion of a health care provider. There are verification forms to do this.

2) Is the animal necessary to enable the member to enjoy his home and the common areas/elementsto the same extent that nondisabled members enjoy their homes? The act says that disabled people are entitled to reasonable accommodations when necessary for them to be able to enjoy their homes to the same extent that nondisabled people enjoy their homes. That doesn't mean the animal must be a medical necessity, or that it have any special training. The reasonable accommodation doesn't have to be therapy, medicine, or something the person couldn't possibly live without, only something that makes it easier for him to deal with the limitations of the disabling conditions. This includes companionship for people with anxiety or depression.

What's more, although many people think the only time the association has to let a member keep an emotional support animal is when the animal is the member's only available option, that's not true. The animal doesn't even have to be the easiest option for the association to be required to allow it. Just because an option that's easier on the association may exist, like taking drugs as opposed to a dog, or a goldfish as opposed to a cat—doesn't mean that the member has to accept that other option.

Courts usually use a balancing test, asking whether the disabled member derives some benefit from keeping the animal and, if so, at what cost to the association and other members.

3) Would letting the disabled member keep the animal impose an undue hardship on the association? Even if the animal would provide some benefit to the disabled member, if it's too expensive, disruptive, or destructive to keep around, the association may be allowed to refuse to make the accommodation. According to the act, the accommodation sought by the disabled member must be reasonable. A dangerous or untrained dog, or one that barks all night and keeps everyone awake, for example, might not be reasonable, and the association could refuse to allow the member to keep it. Also when outside of the home , the association may require that the animal be leashed and/or muzzled may be reasonable under the circumstances of an accommodation.

What to Do When You Get A Request

Here are four steps to take when a member requests permission to keep an emotional support animal.

1) Send a letter to member acknowledging request. When a member requests permission to keep an emotional support animal, send a letter acknowledging the request. Your letter, based on consultation with counsel, should explain the association's policy on reasonable accommodations, including emotional support animals. Specifically, the letter should say that the association complies with all Fair Housing laws and that if a disabled member requests permission to keep an animal, the association will grant the request if it determines that the animal is necessary to allow the member to enjoy his home to the same extent that nondisabled members enjoy their homes. Also, the letter should tell the member that the association will respond to her request within a uniform number, say 15 business days from the date it receives the information it needs to make this determination.

2) Verify the member's disability and need for the animal. Include an Emotional Support Animal Request Verification form for the member to give to his or her health care provider. In the letter, tell the member to sign the Member Release portion of the form and then to have her health care provider complete the rest of it and return it directly to the association.

The verification form tells the health care provider that the member has made a request for an emotional support animal and explain the association's policies regarding such requests. It should tell the provider how the act defines disability and ask whether, in the health care provider's professional opinion, the member is disabled. And it should ask the provider whether the member needs the animal to have an equal opportunity to use and enjoy the community.

The form should also ask the health care provider whether he would be willing to testify in any proceeding related to the member's need for the animal. This lets the provider know that you mean business, and may discourage members' friends in the health care field from writing false letters in support of the request. Show the verification form to your attorney before using it at your community.

3) If health care provider confirms member's disability and need for the animal, grant the request—unless compelling reasons exist to challenge it. Generally, you should accept the diagnosis of any qualified health care professional and allow the member to keep the animal if the professional believes that the member needs it. The health care professional doesn't have to be a doctor. HUD accepts complaints based on the opinions of Ph.D.s, certified social workers, or therapists, among others.

Only in extreme situations should you challenge the health care professional's diagnosis. It's generally recommended that associations not go behind the health care provider's determination or qualifications. If an association decides to reject such a request, it should do so only with an abundance of caution and with the active involvement of its attorney. Every Board should check with your insurance agent to confirm that you have coverage or at least a defense provided by your insurance policy if challenged.

4) Consider community circumstances to decide whether requested accommodation is reasonable. As explained above, an association doesn't have to make any accommodation that's unreasonable—even if the member is disabled and a health care professional verifies that the member needs the animal. Reasonableness always depends on your community's circumstances. The association might have to restrict the type of animal the disabled member can keep. It's important to be in regular communication with the member so that she understands your willingness to work toward any resolution that's reasonable.

If an animal is a nuisance, that is grounds to have the animal removed, regardless of whether it is an otherwise qualified support animal. Make sure that witnesses are willign to testify, and that the behavior is specifically prohibited by the documents or a rule.

A Dozen Thoughts On Israel's War on Hamas

2008-12-30T14:07:00.000-08:00

Daniel Pipes is quite correct in his recent analysis of the situation reproduced below in its entirety from his Blog:

1) Arab-Israeli warfare is not the conventional battle to control territory of old. Since 1982, the primary goal in this theater is to persuade the world of the righteousness of one's cause. (I.e., who has the more affecting casualites?)

2) Palestinians have proven themselves more competent at the p.r. battle than the Israeli government, winning public support everywhere — with the lone but decisive exceptions of Israel and the United States.

3) Secondarily, Hamas's defiance should be seen in light of Iranian ambitions to wear down the Israeli body politic.

4) Most Arab regimes so fear Tehran that they can barely bestir themselves to denounce Israel's war on Hamas, much less do anything.

5) The PLO's Mahmoud Abbas condemns Israeli actions as intensely as he roots for the Israel Defense Forces to destroy Hamas.

6) The moral opprobrium for Palestinian rockets raining down on Israeli towns falls entirely on the Palestinians and their enablers.

7) Israel has made astounding tactical mistakes, including the 2005 withdrawal from Gaza, long years of passively enduring rockets, and tacit acceptance of elaborate smuggling tunnels from Egypt to Gaza.

8) The IDF has learned from tactical mistakes made in 2006.

9) Still, the Israeli war effort remains problematic. For example, an unnamed Israeli defense official was quoted saying "Hamas knows our demands, and there's no use to talking about them publicly." Since when does one signal military intentions to the enemy and hide them from one's own population?

10) The Israeli goal should be victory, not ending terrorism.

11) The Bush administration must not save Hamas.

12) Nor should the Obama administration save Hamas.

Myths and Facts About Robert's Rules

2008-12-30T14:00:00.000-08:00

Myth #1
The only time the President of the association can vote at a Board meeting is to break a tie or in an election.

Fact: Robert’s Rules of Order provide that the President of an assembly is only entitled to vote when the vote is by ballot or where the vote would change the result, i.e. break a tie. However, in the community association context in almost all cases the President of the association is also a member of the Board of Directors. In essence he or she wears two hats – one as an officer of the corporation and one as a Director. Thus, at a meeting of the Board of Directors a President of an association who is also a Director has a fiduciary duty to vote on all issues properly before the Board.

Myth #2
A Director may abstain from voting on an issue.

Fact: Robert’s Rules of Order provides that a member who does not have an opinion on an issue may abstain from voting on the issue. However, in the community association context a Director may only abstain from voting if he or she has a legitimate conflict of interest directly related to the issue or subject being considered. An example of a conflict of interest, which would allow a Director to abstain, would be if the Board was considering hiring the Director’s spouse to be the manager of the association. asserting a conflict of interest must state the nature of the conflict on the record.

Myth #3
An abstention counts as a “Yes” vote.

Fact: An abstention does not count as a “yes” vote and in fact it is not counted at all. Robert’s Rules of Order and Florida law provide that a person who has not abstained because of an asserted conflict of interest is deemed to have agreed with the majority and thus cannot later claim to have been against the action. If, however, the Board is deadlocked because of an abstention then there is no majority and the motion fails.

Myth #4
The Board of Directors may use secret ballots to vote on any issue they deem appropriate.

Fact: The only time it is appropriate for secret ballots to be used is when the Board is electing the officers.

Myth #5
Members do not have the right to speak at meetings of the Board of Directors.

Fact: Under Robert’s Rules of Order members of an assembly have the right to speak. However, this is not always the case at community association Board meetings. In the condominium context pursuant to §718.112(2)(c), Florida Statutes, members have the right to attend meetings of the Board and to speak about all items on the agenda. The Board may, however, adopt reasonable rules governing the frequency, duration, and manner of unit owner statements. In the homeowner association context, however, while a member has the right to attend Board meetings he or she does not have the right to speak unless the association documents give members the right to speak at Board meetings.

Myth #6
All motions must be seconded.

Fact: Most motions do need a second in order to be considered by the Board. However, some motions do not need a second. Types of motions that do not require a second include: questions of privilege (i.e.: complain about the heat, noise, etc.), points of order (point out a rule violation to the chair), a call for division (requesting a voice vote be verified by having members raise their hands), points of information (requesting more information about a topic under debate), and objections to consideration of a particular matter.

Myth #7
All motions are debatable.

Fact: Robert’s Rules of Order does not require that all motions be debated. Types of motions that are not debatable include: motion to adjourn, question of privilege, motion to table consideration of an issue, motion to end debate on a main motion, point of order, a call or division and a request for information from the chair.

Myth #8
All meetings must be run according to Robert’s Rules of Order.

Fact: There is no law that requires community associations to operate their meetings according to Robert’s Rules of Order. Often times, however, the Declaration, Bylaws or Articles of Incorporation will require that meetings utilize Robert’s Rules of Order. However, this still does not mean that every single technical rule must be followed to the letter. In fact, Robert’s Rules of Order provides that smaller assemblies may operate with less formality. This would certainly apply to community association Boards, which generally have from three to seven Directors. Regardless of what degree of formality the Board utilizes, it is important to be consistent in the use and application of the rules.

Myth #9
Without a quorum, nothing can be done.

Fact: In the absence of a quorum, the Board or the members at a members meeting may not transact business but they may take measures to establish a quorum, fix the time to adjourn, adjourn, or take a recess. Additionally, it should be noted that there is no quorum requirement for the election of Directors of a condominium association but at least 20% of the eligible voters of the association must cast a ballot in order to have a valid election.

Myth #10
The Board of Directors can exclude members from attending the Board meeting by holding an “Executive Session.”

Fact: Under Robert’s Rules of Order, a Board may meet in “executive session” and thereby exclude members and keep the proceedings secret. However, in the community association context the only time a Board may meet in executive session is when the Board is meeting with the association’s attorney to seek legal advice with respect to proposed or pending litigation.

Israel's Right of Self Defense

2008-12-28T09:50:00.000-08:00

This is off topic, but it's my blog and I'll post what I want to...

The IDF recently moved to stop the terrorist Hamas leadership in Gaza from shooting thousands of rockets and mortars into Israel.

From the Jerusalem Post:

On Friday, a Hamas spokesman made Israel the following proposal: You keep the stream of humanitarian aid and supplies flowing into Gaza and we will keep launching rockets and mortars at Israeli civilians.

Islamic Jihad terrorists place rockets before firing them towards Israel on the outskirts of Gaza City.
Photo: AP

Slideshow: Cast Lead, day II

It was an offer Israel had little choice but to refuse.

For weeks Israel has been imploring Hamas to stop shooting across the border, to stop tunneling in preparation for the next round of violence, and to allow our farmers to tend their fields. The Islamists responded that they were not afraid of the IDF and that they reserved the right to resist "the occupation" - meaning the existence of a Jewish state. They brazenly told Israel to get used to the idea that no amount of humanitarian gestures would stem their behavior.

At 11:30 a.m. Saturday, Israel finally told Hamas that it would not be bled, slowly, to death. Thanks to excellent intelligence and superb training, a haughty enemy was caught off-guard. Targets up and down the Strip were hit and large numbers of Hamas personnel including senior military figures were killed. Key facilities were turned into rubble; well-camouflaged equipment was destroyed.

********************************************************************************

As for the media and the rest of the world, here is a little greeting for your holidays. We will not back down, we will not "Turn the other cheek" and are tired of being told to make "Painful concessions" for peace with people who want only to kill Jewish DNA. No porportionality, no triple standard that only Israel must adhere to.

Donald Trump's Defense to Foreclosures!

2008-12-21T12:42:00.000-08:00

Here is an article from the New York Times where Mr. Trump asserts that the recession and his company's inability to pay is an "Act of G-d". I bet we'll see the Twinkie defense used soon---"I had too many Twinkies so I had such a sugar rush that I didn't know that my payment would adjust to market rates in 3 years!!!

Who's On First?

2008-12-21T12:37:00.000-08:00

Here is a news item about a "dysfunctional" Tallahassee community association that ran up all kinds of legal fees in an unsuccessful attempt to enforce ARC 'requirements." They now seek bankruptcy protection, ha! Good luck with that!

I wonder if they saw my video on this at You Tube...

Not Even Half Way Through!

2008-12-15T07:15:00.001-08:00

For those of you who thought that we are seeing a light at the end of the tunnel in community association real estate, which was especially subject to speculation here in Florida, I respectfully suggest that you hunker down; it may be an oncoming train--bottom line? Get an aggressive collection policy and lock and load....

See more at my web site, www.condocollections.com

Last night 60 minutes aired a segment on the next wave of mortgage foreclosures expected to hit the U.S. The first wave that we have are still living through has to do with "sub-prime" mortgages. Starting in 2009 the variable arm loans and "Alt-A" loans will start to re-set. The statistics are showing that based on today's economy 70% of these loans will fail. The report focused on Miami-Dade and expected that area to be hit very hard. The hit is forecast to begin beginning first quarter 2009 through 2010. "Alt A" loans are defined as "a classification of mortgages where the risk profile falls between prime and sub prime. The borrowers behind these mortgages will typically have clean credit histories, but the mortgage itself will generally have some issues that increase its risk profile. These issues include higher loan-to-value and debt-to-income ratios or inadequate documentation of the borrower's income."

The 60 minutes report starts out: CBS... When it comes to bailouts of American business, Barney Frank and the Congress may be just getting started. Nearly two trillion tax dollars have been shoveled into the hole that Wall Street dug and people wonder where the bottom is.

As correspondent Scott Pelley reports, it turns out the abyss is deeper than most people think because there is a second mortgage shock heading for the economy. In the executive suites of Wall Street and Washington, you're beginning to hear alarm about a new wave of mortgages with strange names that are about to become all too familiar. If you thought sub-primes were insanely reckless wait until you hear what's coming."

The link below will take you to the full story where you can read it or watch the segment.

http://www.cbsnews.com/stories/2008/12/12/60minutes/main4666112.shtml

Victory In Iraq Day

2008-11-24T14:51:00.000-08:00

I'd like to give a shout out to the patriots at www.zombietime.com for proclaiming November 22, 2008 as Victory in Iraq day. I supported the war as it was proposed to us by the Bush Administration. I was amazed at the speed with which our brave troops broke into and past the Iraqi army and took the country by storm, so to speak.

I think Bremer and Rumsfeld, et.al. committed criminal indifference, if not worse, for the way in which the post military victory was handled, during which time we almost lost the war. The "Surge" was the only option left, and I'm certain that arming the Sunnis to the teeth and their revulsion to the tactics of al-Queda, along with the muzzling of Moktada al-Sadr, probably by al-Sistani, was a large part of the success of the Surge.

Regardless, we won the war; let's win the peace and get out of Dodge. It's time for the Iraqis to stand up and let us get home. Well done, ladies and gents, come home.

FYI, my law office alone shipped 200+ boxes of magazines, candy, cigarettes, etc. to our troops there and my heart goes out to their families. We owe them a debt of gratitude for deploying as the deadliest, most compassionate fighting force on earth, save perhaps for the IDF.

Way to go, huzzah!, now let President Obama get with the generals and find out how to get you home!!!

Feds stop loophole debt strapped consumers use

2008-11-24T13:02:00.000-08:00

here we go, homeowners underwater in debt have discovered a way out; find and buy a home in their community that is selling for half the price they paid 3 years ago, move out of their hopelessly overpriced residence and let the lender foreclose on the former abode. This is part ofthe 'cretive destruction" of capitalism, and one of the only way a "little guy" could game the system to save himself without help from Uncle Sam....Not so fast say the regulators....

Little guys, bend over, big guys, get your hands out....billions for you!!!

September 19, 2008

MORTGAGEE LETTER 2008-25

TO: ALL APPROVED MORTGAGEES

SUBJECT: Converting Existing Homes to Rentals—Underwriting Instructions

Through this Mortgagee Letter, the Federal Housing Administration (FHA) takes steps to immediately respond to an unscrupulous practice arising in the housing mortgage market that poses a risk to FHA, FHA-approved lenders, and consequently to FHA’s ability to help new homeowners.

Recently, FHA and others in the mortgage industry have observed an increasing number of homeowners who have chosen to vacate their existing principal residence and purchase a new residence. This has been occurring as some homeowners, given the rising price of fuel, are relocating to homes nearer their employment, or are taking advantage of other home buying opportunities arising in the marketplace.

Due to FHA’s concern that some homebuyers in these transactions may attempt to provide misleading information regarding the rental income of the property being vacated to qualify for the new mortgage, FHA is instituting underwriting guidance designed to assure that the homebuyer can make payments on the full debt service of both mortgages. Consequently, beginning with case number assignments on or after the date of this Mortgagee Letter and until further notice, the underwriting analysis may not consider any rental income from the property being vacated except under circumstances described in this Mortgagee Letter. The exclusion of rental income from property being vacated is being instituted on a temporary basis while FHA further analyzes this situation to determine whether permanent measures may need to be taken. This will assure that a homeowner either has sufficient income to make both mortgage payments without any rental income or has an equity position not likely to result in defaulting on the mortgage on the property being vacated. In either case, this guidance is directed to preventing the practice known as “buy and bail” where the homebuyer purchases, for example, a more affordable dwelling with the intention to cease making payments on the previous mortgage. Although the property being vacated will not have a mortgage insured by FHA, surrounding properties may and, thus, FHA may be indirectly negatively affected should that property result in a foreclosure.

Exceptions:

Rental income on the property being vacated, reduced by the appropriate vacancy factor as determined by the jurisdictional FHA Homeownership Center (see http://www.hud.gov/offices/hsg/sfh/ref/sfh2-21u.cfm) may be considered in the underwriting analysis under the following circumstances:

Relocations: The homebuyer is relocating with a new employer, or being transferred by the current employer to an area not within reasonable and locally recognized commuting distance. A properly executed lease agreement (i.e., a lease signed by the homebuyer and the lessee) of at least one year’s duration after the loan is closed is required. FHA recommends that underwriters also obtain evidence of the security deposit and/or evidence the first month’s rent was paid to the homeowner.

Sufficient Equity in Vacated Property: The homebuyer has a loan-to-value ratio of 75 percent or less, as determined by either a current (no more than six months old) residential appraisal or by comparing the unpaid principal balance to the original sales price of the property. The appraisal, in addition to using forms Fannie Mae1004/Freddie Mac 70, may be an exterior-only appraisal using form Fannie Mae/Freddie Mac 2055, and for condominium units, form Fannie Mae1075/Freddie Mac 466.

The guidance in this Mortgagee Letter applies solely to a principal residence being vacated in favor of another principal residence. This Mortgagee Letter is not applicable to existing rental properties disclosed on the loan application and confirmed by tax returns (Schedule E of form IRS 1040).

It is important to note that if the property being vacated had a mortgage insured by FHA, eligibility for a second FHA insured mortgage can only occur under the exemptions described in handbook HUD-4155.1 REV-5, paragraph 1-2.

If you have any questions regarding this Mortgagee Letter, call 1-800-CALLFHA.

Sincerely,

Brian D. Montgomery

Assistant Secretary for Housing-

Federal Housing Commissioner

Fannie Mae and Freddie Mac announce foreclosure suspensions

2008-11-24T11:55:00.000-08:00

It appears that the the now governmentally owned entities are either having a little less Scrooge in their hearts (unlikely) or are choking on REO property. My best guess is that they figure it's better to have occupied homes where people are maintaining the property instead of destroying it when they move out when served with foreclosure.

In either case, this means that community associations have a greater window of opportunity to require owners to pay or face foreclosure themselves. As I was quoted in the Tampa Tribune, "I'm not Snidely Whiplash" but people need to know that they cannot ignore the associations' demands to pay, or they will be foreclosed on.

This announcement means that if your association takes title as the result of a foreclosure, it has more time to rent the property on a short term basis.......

2008-11-23T10:28:00.000-08:00

2007 LEGISLATION AFFECTING COMMUNITY ASSOCIATIONS
1. ISSUES REQUIRING IMMEDIATE ATTENTION BY HOMEOWNERS' ASSOCIATIONS:

Provisions contained within two bills which were signed by the Governor on June 19, 2007 become effective on July 1, 2007, and require immediate attention by homeowners' associations. The first of these bills is critical to all homeowners' associations who exercise architectural control in regard to exterior changes that are made in the community. The second hill relates to collection of past-due assessments, which only impacts some associations.

A. ARCHITECTURAL CONTROL:

A new Section 720.3035 has been added to the Florida Statutes as this relates to homeowners' associations. This legislation indicates that the authority of an association or any committee to review and approve plans or applications for the location, size, type, or appearance of any structure or improvement, or to enforce standards for the external appearance of any structure or improvement, "shall be permitted only to the extent that the authority is specifically stated or reasonably inferred as to such location, size, type, or appearance in the Declaration of Covenants or other published guidelines and standards authorized by the Declaration of Covenants".

In my opinion, there must be detailed architectural standards contained in the Declaration, or in Rules or Architectural Guidelines which are authorized by the Declaration,and which have been adopted by the Board or an architectural committee (depending on the governing documents), in order to regulate alterations to properties in homeowners' associations.

First, homeowners' associations should make sure that they have authority for ACC, ARC or similar rulemaking, and if not to attempt to adopt an amendment immediately for this purpose.The associations also need to immediately attempt to develop detailed architectural standards for the location, size, type andappearance of any structures, improvements, or alterations.

The statute goes on to say that if the Declaration or any published standards or guidelines provide any options for the use of materials, or for the size of structures or improvements, or the design or location of the structures or improvements, the association or the committee cannot restrict the right of an owner to select from any of the options provided. Another change is to clarify that only one front setback may exist on a parcel, even if it is bounded by a roadway or easement.

The next subsection of this statute indicates that the rights of the owners to make improvements or alterations, subject only to the published guidelines and standards, is not to be unreasonably infringed upon or impaired by the association or any committee, and if such an infringement does take place, the adversely affected owner shall be entitled to recover damages, including costs and attorneys' fees, if it can be shown that the association unreasonably or willfully impaired the rights of the owners to make improvements or alterations.

The final subsection recognizes that standards and guidelines cannot be inconsistent with the Declaration of Covenants, so Declarations need to be reviewed to ensure consistency between any guidelines and the specific restrictions contained in the Declaration.

This requires that each homeowners' association review their Declaration and all of their written criteria in regard to architectural control, as well as the amendment procedures for the Declaration, and the authority to adopt rules and regulations. Any homeowners' association which needs legal input on this critical new law needs to contact their association attorney.

I strongly recommend that associations adopt a temporary "stop-gap" resolution or motion at a Board, ACC, or ARC meeting as soon as reasonably possible. We have wording we can suggest for this purpose.

Also, in some Declarations the architectural committee has the authority to adopt standards, rather than the Board. Boards need to consider assuming control of this process, if permitted by the documents, by designating the Board of Directors as the committee which will have the authority to adopt standards and approve future applications. The committee can be utilized as an advisory committee to assist the Board in developing standards and reviewing applications.

Equally important, but not part of the legislation, is how applications that do not meet your criteria need to be handled.

Some of the examples of architectural criteria which may need to be developed by homeowners' associations to the extent that these are not specifically spelled out in the Declaration include: paint colors (a specific palette of paint colors is recommended); locations for satellite dishes and antennas; criteria for fences; requirements for mailboxes; criteria for any improvements on patios or balconies, including screening or enclosures; and numerous other criteria and standards which include any potential exterior modifications or additions which an owner may wish to make.

This is a very challenging and burdensome new law which requires immediate attention for all homeowners' associations who wish to retain the right to exercise architectural control.

B. SENATE BILL 1844 — NEW COLLECTIONS NOTICE REQUIREMENTS FOR HOMEOWNERS' ASSOCIATIONS:

This is another significant change relating to homeowners' associations. A new Section 720.3085 has been created in the Florida Statutes which regulates the collection process for homeowners' associations, in regard to a number of issues. Among the changes included in this new statute is one which requires immediate attention.

In order to attempt to prevent premature foreclosures against homeowners, some new notice requirements have been added. The statute now requires that before a claim of lien may be filed against the lot or unit, a written notice or demand for past-due assessments and other amounts owed must be sent to the owner at least 45 days prior to the time that a claim of lien is filed. Any such demand must be sent by registered or certified mail, return receipt requested, and also by first-class United States mail,to the owner at his or her last address as reflected in the records of the association. If the address shown in the association's records is one other than the address of the unit or lot in the community, a copy of the demand needs to be sent to both the property address and the off-site address, by both regular and certified mail. The cost of the mailing can be included in the amount claimed in the letter. It is very important that associations keep proper records in connection with any such notices. This preliminary notice can either he sent by the association, before referring the matter to its attorney for collection, or otherwise the first notice from the attorneys' office will now need to be a 45-day demand letter, indicating that a claim of lien will be filed if payment is not made. It is suggested that associations or their management companies provide a final 45-day notice before referring the matter to the attorneys' office so that the attorney can then proceed with a claim of lien and another final demand letter. However, if associations prefer, the initial 45-day demand letter can he sent fromour office.

The statute also includes a requirement that no foreclosure suit may be brought until notice has been provided of the intent to foreclose, at least 45 days prior to the time that a foreclosure suit is filed. This means that there are now two 45-day notices which are required (one prior to the filing of a claim of lien, and one prior to a foreclosure suit). In order to prevent significant delays in collections for homeowners' associations, attention will need to be given to these time frames, and coordination between the association and the attorneys' office will need to be verified.

Finally, as to current delinquent accounts, a lien can be filed before July 1, 2007 without requiring a new 45-day notice; and a foreclosure suit can also be filed before July 1, 2007 without providing a new 45-day notice. For this purpose, all homeowners' associations should review the status of their delinquent accounts and determine whether they wish to file any liensor foreclosure actions prior to July 1, 2007.

OTHER LEGISLATION:

A. SENATE BILL 902:

Essentially, this same bill was passed by the Legislature last year, but was vetoed by Governor Bush since it contained some other provisions which were found to be objectionable. The new bill omitted the most objectionable provision, and this bill was signed by Governor Crist on June 19, 2007. There are several very significant changes which affect homeowners' associations, and one relating to condominium associations.

CONDOMINIUMS:

(1) LENDER CONSENT -- Section 718.1 10(1 1) of the Florida Statutes was amended, as this relates to condominium associations, to provide a more reasonable procedure for obtaining lender consents when these consents are needed to amend condominium documents. The legislation provides that as to any mortgages which are recorded after October 1, 2007, any requirement for lender consent is only applicable to changes which affect the priority of the mortgagee's lien or which otherwise materially affect the rights and interest of the mortgagees. As to mortgages recorded before October 1, 2007, existing provisions in the condominium documents are enforceable, but in connection with obtaining consents or joinders from lenders, the association is entitled to rely upon the public records to identify the holders of-outstanding mortgages, and they can use the address provided in the original recorded mortgage document or any assignment, unless a unit owner has other information. The association is required to write the owners and request the name and address where payments are currently being made. Therefore, notices are either to be sent to the address provided by the unit owner, or to the address shown on the public records if the unit owner does not provide alternative information. Notices are to be sent by a method that establishes proof of delivery (certified mail), and any mortgagee who fails to respond within 60 days from the date of mailing will be deemed to have consented to the amendment.

Any amendment adopted without the required consent of the mortgagees shall he voidable only by a mortgagee who is entitled to notice and an opportunity to consent, and any action to void such an amendment is subject to a five-year statute of limitations.

Finally, the legislation provides that notwithstanding any other provisions of this legislation, an amendment may be adopted to conform a Declaration of Condominium to the insurance coverage provisions in Section 718.11 1(1 I) without lender consent.

As to all condominium associations which have provisions in their documents which require lender consent for amendments, the Association may wish to consider the adoption of an amendment at this time. This legislative change makes it much easier for associations to obtain lender consent. One approach that we have taken previously for these types of Declarations is to change the procedure for future lender consents, so that only a majority of those lenders who provide contact information to the association need to consent, instead of 100 percent of the

lenders. It is also possible to modify the issues which will require lender consent in order to delete those types of amendments that the lenders are not concerned with. If your association has any requirements for lender consent for amendments, please contact your association attorney to discuss this further and to determine what action might be taken to take advantage ofthis new statutory change.

HOMEOWNERS' ASSOCIATIONS:

in addition to the new laws relating to architectural control which are discussed above, numerous other changes were made to the laws governing homeowners' associations by this bill, effective July 1, 2007. Some of these changes are as follows:

(I)COMMITTEES — Section 720.303 of the Florida Statutes was amended as this relates to committees. This merely confirms that committees must conduct their business in the same manner as a Board of Directors when a final decision will be made regarding the expenditure of Association funds, or with respect to a committee that has the power to approve or disapprove architectural decisions.

(2) FEES FOR PROVIDING INFORMATION -- An amendment was made to Section 720.303(5)(d) which authorizes homeowners' associations to charge a reasonable fee to a prospective purchaser or a lien holder in regard to providing information about the subdivisionor the association. This information is generally requested by lenders or title companies in connection with financing or real estate closings. The fee which is charged can be up to $150.00,in addition to the cost of photocopying, and any attorneys' fees incurred by the association in connection with the response. Remember that you can include attorneys' fees if you need your attorneys to review any response, or any particular questions that have been asked.

(3) BUDGETING AND RESERVES — A very significant change has been made to the budgeting provisions relating to homeowners' associations found in Section 720.303(6). This addresses reserve accounts for capital expenditures and deferred maintenance. Once an association provides for reserve accounts which are governed by the new statute, the association is to thereafter determine, maintain and waive reserves in compliance with these requirements. The legislation indicates that "an Association shall be deemed to have provided for reserve accounts when reserve accounts have been initially established by the developer or when the membership of the Association affirmatively elects to provide for reserves".If reserve accounts were not initially provided for by the developer, the membership of the association may elect to do so upon the affirmative approval of not less than a majority of the total voting interests of the association, either at a duly called meeting or by written consent. The approval is to indicate that reserve accounts will be provided for in the budget, and to designate the specific components forwhich the reserve accounts are to be established. Once the members have approved this, the Board must thereafter provide for the required reserve accounts in the budget each year thereafter. The reserves are to be computed based upon the estimated remaining useful life and estimated replacement cost or deferred maintenance expense of each reserve item.

Once reserve accounts are established which are governed by the new statute (it appears that membership approval is required to the extent that reserves were not established by the developer, regardless of whether the Board has subsequently funded reserves), then there is also an opportunity for the membership to vote (by a majority of members present at a meeting, in person or by proxy, provided that a quorum is attained) to waive reserves or to provide less reserves than required by the calculations.

There is also an option to have reserves calculated based upon a pooled analysis of two or more of the required assets, similar to condominiums. There is also now some statutory guidance providing that reserve funds, and any interest accruing on the reserve funds, must remain in the reserve accounts unless they are used for other purposes approved by a majority vote of the membership as described above.

For those associations which are not subject to the requirements for reserves (where the developer has not established reserves or where the Board does not submit this issue to the membership in order to determine which components of reserves should be funded in accordance with the statutory formulas and procedures), homeowners' associations can continue to utilize reserve funds, and provide for reserve funds in their budget, in accordance with the procedures which previously applied to these issues in the governing documents. There were no statutes which previously addressed the manner in which homeowners' associations were to fund or utilize reserve accounts. so this is an issue that would he controlled by the governing documents.

It is very important to address this issue in connection with the upcoming budget season, in order to determine whether the Board wishes to have the membership vote on the issue of establishing certain reserve accounts pursuant to the statutory formulas, or to otherwise determine the extent to which the new law affects the budget and reserve process

There is also an inherent complication in the new law since it requires some associations to fund reserves, but it recognizes that the funding is subject to any maximum increases which may be permitted for the budget of the association. Many homeowners' association documents do not provide limits on budget increases, while others do provide limits as to how much the budget can be increased each year, and the procedures which must be followed to exceed these limits. Unlike the condominium law relating to budget increases, reserves are not excluded in determining the increase in the budget for homeowners' associations, and this will undoubtedly cause some confusion in regard to the interplay between mandatory reserves and related limitations on budget increases. Membership votes will be required in most cases where the new law on reserves applies to a particular association.

(4) FINANCIAL REPORTING The financial reporting provisions for homeowners' associations have also been revised and these are now consistent with the condominium statute, providing for a report to be prepared within 90 days from the end of the fiscal year and to be provided to the members within 120 days after the end of the fiscal year or

such other date as provided in the Bylaws. Prior legislation established financial reporting requirements for homeowners' associations, so that financial reporting requirements are now very similar to condominium associations.

(5) ATTORNEYS' FEES – A minor change was made in regard to attorneys' fees in connection with an owner who prevails in a suit against an association. The statute has been adjusted to indicate that any owner who prevails is not only entitled to recover fees that he or she incurred, but also to be reimbursed for any assessments that the owner was required to contributeto in connection with the funding of the litigation.

(6) DEVELOPER AUDITS – There has been a change which requires developers to provide an audit from an independent CPA at the time of turnover, similar to that which is required for condominium associations. This applies only to associations which are incorporated after December 31, 2007.

(7) DEVELOPER GUARANTEES – There has also been wording added to Section 720.308 of the Florida Statutes to provide detailed criteria for guarantees of assessments in a homeowners' association.

(8) PRE-SUIT MEDIATION REQUIREMENTS – A significant change has been made which will make it easier to enforce violations in homeowners' associations, since the pre-suit mediation requirements have been changed. Instead of being required to file petitions with the State of Florida, an association now is required to make a written demand on the unit owner,indicating that if the owner fails to agree to participate in the mediation process within 20 days from the date of the letter, then the association may proceed with a lawsuit. There arc detailed provisions as to the type of wording which must he included in all letters. There are also provisions for the association to recover costs and attorneys' fees incurred in the pre-suit mediation process; time requirements within which the mediation process must be completed; and other provisions which should make it easier to attempt to utilize mediation prior to lawsuits,without incurring the unnecessary costs and delays which have been experienced in the mediation program administered by the State of Florida.

B. SENATE BILL 1844 – OTHER CHANGES RELATING TO COLLECTION OF ASSESSMENTS BY HOMEOWNERS' ASSOCIATIONS:

In addition to the new notice requirements for collections by homeowners' associations, outlined above, a number of other changes have been made which will impact the collection of past-due assessments by homeowners' associations. These are contained in Senate Bill 1844, also effective July 1, 2007.

(1)A provision has been added whereby a new owner is jointly and severally liable with the prior owner for all unpaid assessments that came due up to the time that title was transferred. It is not clear as to whether this applies to a purchaser at a foreclosure sale.

Community Association Collections for Dummies

2008-11-23T10:23:00.000-08:00

Here is a shortened version of what I prepared for a client, FYI---

When we are asked to file a lien we send it to the debtor Certified mail and regular mail. We send the original to be filed with the clerk of the court the same day. Law requires that we provide 30 days notice to debtor before filing suit.

Usually we get the return receipt back; sometimes there are issues with the debtors address; there is no one answer fits all. We move as fast as we can. We NEVER give less than the 30 day notice.

After we clear up the issue of notice we ask for approval to foreclose. I recommend that he board authorize management to do so as these are critical times in the industry and delay is bad.
After we get authority to foreclose, we filed the complaint with the court, lis pendens and serve the suit on the debtor. We wait until 30 days after service of the suit on the debtor (time for service varies, maybe out of state, avoiding the process server, whatever) before seeking a default from the clerk of the court if they do not answer.

Usually 3/4 of people who have not paid arrange to make payment at this point including all fees and costs, interest, etc.

If they continue to ignore us, we seek summary judgment; that usually takes 10 more days to get filed and a hearing date is set about 30 days later.

Usually 3/4 of the remaining people pay by this time or make arrangements to do so.
At the summary judgment hearing, we ask for sale of the unit on the courthouse steps to satisfy the amounts due. Usually the court sets it 30 days later.

If we go to sale, we bid up to the amount of the judgment; if someone goes higher, the association is paid in full as well as all interest, costs, etc...if not (about 1 in 200) the association takes title to the unit.

If there is a first mortgage it is subject to that mortgage, what most people do not understand is that no payments are required...no taxes, no insurance, only make sure liability insurance in place.

Usually at this point we try to rent it month to month just to recover lost assessments. I hardly ever ask for fees, and rarely ask for costs to be repaid, as by the time of sale I have about $800 in hard money paid out for the benefit of the association. Given the current environment, I am considering to ask to be reimbursed for my out of pocket costs if nothing is realized at the sale...that is done on a case by case basis.

More foreclosure woes

2008-10-17T10:12:00.000-07:00

It is reported that the president of The Venetia's association, angrily told a crowd of South Florida condo dwellers at a meeting this week that 134 units were not paying maintenance fees in the 382-unit building. Of those, at least 35 are in foreclosure, and the owners are not paying and the banks are dragging their feet on foreclosures.the hands of lenders who aren't playing fair.

The unpaid accounts have resulted in higher association fees for everyone and crippling special assessments to cover large one-time expenses like roof repairs. Less than a year ago, The Venetia had to pass an $8,000 special assessment on homeowners because, at the time, roughly a quarter of them were delinquent.

South Florida's foreclosure crisis is dealing its toughest blow to the hundreds of thousands of homeowners who live in condos. High foreclosure rates have made it difficult for many associations to make their budgets and provide services like cable, lawn care and pool maintenance.

Stay on top of your accounts receivable!

A downward spiral?

2008-10-16T16:34:00.000-07:00

The Miami Herald reports that in South Florida, 40% of homes purchased in the last 5 years are 'worth" less than is owed on them and 76%(!) of the homes sold since 2006 are. This is only the tip of th eiceberg, as the more homes that are foreclosed on by the "lenders" the more home prices will fall, as they are sold for anywhere from 25%-50% less than other homes in that neighborhood. That leads to less "comps" and less valuation, causing more people to default as they will end up being bailed out by the government, &tc., &tc.

Where will it end? Who knows. My advice continues to be for communioty associations to push hard for prompt, aggressive collections and foreclosures of their own as first mortgage foreclosures are now taking over 18 months in many cases....

Community Association Collections Crisis Worsens

2008-09-28T13:54:00.000-07:00

In the past few months, a huge issue has arisen that needs to be properly dealt with by community associations.

What to do about lender foreclosures?

This post examines the ways to handle the position of the association in such actions.

When a mortgage foreclosure is filed and served, the vast majority of the properties have no equity. On sale, the association will not get paid and its' lien will be wiped out. The ability to obtain a money judgment is available either as part of the foreclosure as a cross claim for damages, or down the road in a Small Claims Court action.

On defense of mortgage foreclosures I notice that some lawyers file a claim, and incurs the expense of a process server and charges the association for the legal fees and costs. I think this is a gross waste of time and money to get a money judgment against someone who is letting a $300,000 asset be taken in th esuit. "You can't get blood from a turnip" is th elegal doctrine here, I believe.....

While this is legally proper, in the short term, I think it is only $$$ in the pocket of the lawyer doing the work. While it may end up with a judgment in favor of the association that is good for 20 years (must be renewed periodically during that time) and may someday be paid off, the association has paid a heck of a lot of money relative to the claim for a piece of paper (the judgment) that may never be collected upon. The reason for my conclusion is that the present value of the money probably never works in favor of the association.

When I defend foreclosures, I do not do counterclaims for that reason; I think it is throwing good money after bad. It's not a situation where one approach is "proper" and one is "improper" it's just that associations are under siege and I see no benefit in charging hundreds of dollars in the context of defending and counterclaiming in a first mortgage foreclosure, with the hope that the amount due will be collected some time in the next 20 years....I answer the complaint and monitor it until the CT is issued.

More later on an aggressive approach in these turbulent times.

Buyers' Remorse or how to publish embellished ads

2008-09-17T13:44:00.001-07:00

A group of homeowners recently lost a bid to escape from their purchase contracts in Opera Tower. The advertising material spoke about an amenities that were alleged to be misleading, byt the judge, a Clinton appointee, ruled against them stating that they had full and correct descriptions in the Prospectus.

I am not sure why they did not sue under Section 718.504 which provides for a cause of action for false and misleading advertising.

Moral of the story: There is Moral hazard in many economic decisions; just because Uncle Sam will bail out AIG, doesn't mean that us little guys don't have to pony up when we make bad decisions.

Welcome to my world

2008-09-17T13:44:00.000-07:00

I am a lawyer who practices Community Association law in Florida. I am a bit outspoken on issues, and I will try to report fairly on issues of interest to boards of directors, managers and others involved in the operation of this sort of living arrangement which might be seen as the privatization of local government.

For those of you who do not like this form of "government" I suggest that you join www.ccfj.net where you can see the opinions of my friend Jan Bergmann and his minions.

See ya later, Bob

Florida Community Association Law

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Fallout from implosion of Stern law firm

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Are emails Official Records?

Order of Battle in foreclosures

CCFJ incites hate speech

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The beginning of the end of segregation

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Cutting services to delinquent owners

Deed restriction issues..

Recruiting HOA Board Members: How to Succeed

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Your New Condo Leaks? Join the Club

ARC Guidelines for HOA's

Insurance Company not required to defend personal injury suit

Some sanity in foreclosures

Aas usual Israel gets no credit...

New rules make it harder to finance condos

Green shoots in real estate? How about record delinquencies!

Cancellation of Cable Contracts made by Developers

Foot dragging by foreclosing lenders

Bottom Line Secrets on age restricted communities

OT but important

Fair Housing Discrimination-Familial Status

AP story on foreclosure crisis in Chicago Tribune

Homeowner associations foreclosing on residents behind in their fees

Collectible Costs and realted matters

§ 1692f. Unfair practices

Governor Signs SB 360, Vetoes SB 714

Atlantic Beach passes law making landlords responsible for repeat criminal renters

Please email Gov. Crist to Veto SB 360

How to monitor the Stimulus money

I told ya so...

it's worse than we thought.....

Memorial Day and my letter to Casey's Big Report

SB 2080 a/k/a "Florida Friendly" Landscaping...

Thnking of renting space for cell antennas?

Location and Installation of Antennas and Equipment

Maintaining and Repairing Company's Facilities

Wireless Company's Entry onto Site

Permits, Approvals, Authorizations

Relocation of Facility

Assignment and Sublet

Insider Source

Sidebar

Are we back to Hoovervilles?

Deutsche bank says Crisis "Far from Over"

Shadow inventory of unsold foreclosed homes

The riskiest 25 markets in the US

To protect and serve????

Quoted in HOA Leader/sex offenders and how to deal with them

Here's Your Sign...

Proposed Texas constitutional amendment would prohibit HOA foreclosures

It could be worse, I guess.

Deja Vu All Over Again

"Free Fallin"

Down and down we go, where we stop...Nobody knows

Facing Foreclosure? I will buy your a/c unit (SW Florida)

Lee County foreclosures-15 seconds, 2 questions and 45 days to get out!

State Farm To Exit Florida

Lehigh Acres, Ground Zero

Foreclosures? Want to vomit? Read on!!

Race to the Courthouse Steps-2009 version

Chinese economy bad too, so are the "jokes"

More Pain to come

Comply with the FDCPA when you collect!!!

Fannie Mae Piles On

Regulating political signs

Improper police behavior dismissed as "technicality"

Open season

On the other hand, we may be only 1/3 through....

Could this be the bottom?

Renting/foreclosed properties

Dealing with "Prescription Pets"

What to Do When You Get A Request

A Dozen Thoughts On Israel's War on Hamas

Myth #1
The only time the President of the association can vote at a Board meeting is to break a tie or in an election.

Myth #2
A Director may abstain from voting on an issue.

Myth #3
An abstention counts as a “Yes” vote.

Myth #4
The Board of Directors may use secret ballots to vote on any issue they deem appropriate.

Myth #5
Members do not have the right to speak at meetings of the Board of Directors.

Myth #6
All motions must be seconded.

Myth #7
All motions are debatable.

Myth #8
All meetings must be run according to Robert’s Rules of Order.

Myth #9
Without a quorum, nothing can be done.

Myth #10
The Board of Directors can exclude members from attending the Board meeting by holding an “Executive Session.”