Newsletters

FALL 2004

WELCOME ABOARD

While our firm practices in several areas of the law, such as commercial litigation, real estate, personal injury, construction and toxic mold litigation, the majority of the practice is devoted to the representation of Condominium and Homeowners' Associations. In this issue, our firm is proud to announce the addition of the following Associations to our growing list of clientele: Mediterranean Village Condominium (William’s Island), Coronado Condominium (Aventura), Sunrise Lakes Phase One Condominium (Sunrise), Andor Plaza and Royal Bahamian Condominiums (North Miami Beach), Sea Air Towers and Trafalgar Towers II Condominiums (Hollywood) and Golden Isle Condominium (Hallandale). If we don’t say it enough, we can assure you that we appreciate the business and the confidence placed in our firm.

RESTRICTIONS ON RENTING

Many unit owners who routinely rent out their units to tenants were not happy about the Woodside v. Jahren Florida Supreme Court decision in 2002, which allowed Associations to amend their Declaration to entirely prohibit the renting of units. In response to the decision, the Florida Legislature has passed a new law effective October 1st, 2004 which states that as to condominiums, “Any amendment restricting unit owners’ rights relating to the rental of units applies only to unit owners who consent to the amendment and unit owners who purchase their units after the effective date of that amendment.”

VERIFICATION OF OCCUPANCY

In a “55 and over” community, in order to discriminate against families with children, it’s not enough for the Association to simply amend the Declaration of Condominium and initially require proof that the units are occupied by at least one person age 55 or older. On the contrary, an Association faces liability for discrimination under the Federal and Florida Fair Housing Acts if the Association fails to take reliable surveys at least every two years, that at least 80% of the units are occupied by at least one person age 55 or older. Any of the following documents are considered reliable documentation of the age of the occupants of the housing facility or community: (1) Driver’s license; (2) Birth certificate; (3) Passport; (4) Immigration card; (5) Military identification; (6) Any other state, local, national, or international official documents containing a birth date of comparable reliability; or (7) A certification in a lease, application, affidavit, or other document signed by any member of the household age 18 or older asserting that at least one person in the unit is 55 years of age or older.

TURNOVER ISSUES

Many Associations are now undergoing transfer of control from the developer to the unit owners. These Associations are wise to hire the services of both a structural engineer and a certified public accountant, before executing a release in favor of the developer and/or allowing the statute of limitations to expire for the Association to pursue a claim against the developer. Often times, a structural engineer will find deficiencies in the quality of the condominium structure or common elements which require repairs by the developer. Furthermore, certified accountants routinely learn that the developer is financially indebted to the Association at the time of turnover.

OVERSEEING ELECTION

Effective October 15th, 2004 an Office of the Condominium Ombudsman, was created within the Division of Florida Land Sales, Condominiums, and Mobile Homes. Florida law authorizes the Governor to appoint the Ombudsman. This new law allows fifteen percent of the total voting interests in a Condominium Association, or six unit owners, whichever is greater, to petition the Ombudsman to appoint an election monitor to attend the annual meeting of the unit owners and conduct the election of Directors. The Ombudsman shall appoint a division employee, a person or persons specializing in condominium election monitoring, or an attorney licensed to practice in this state as the election monitor. All costs associated with the election monitoring process shall be paid by the Association. However, it is not yet clear what the costs of such attendance would be.

PAY NOW OR PAY LATER

Many Associations suddenly find themselves in desperate need to repair the common areas with no reserve funding to rely on. Often times, this causes the Board of Directors to borrow money from a bank with interest, and to also pass a special assessment against all of the units to repay the loan. Recently, the Director of the Division of Florida Land Sales, Condominiums and Mobile Homes issued a Declaratory Statement that allows Condominium Associations to permit owners the option of paying the special assessment in full without interest or paying the assessment with interest over time. The Division held that disallowing the Association from being able to provide this choice of payment arrangements would constitute a hardship on the Association (where the Association is unable to secure the special assessment from all unit owners in order to procure the needed maintenance and restoration projects), and possibly the unit owners (where not all unit owners are financially able to pay the assessment fee in one lump sum.

RETROFITTING

Effective October 1st, 2004 notwithstanding any other Florida law, an Association, condominium, or unit owner is not obligated to retrofit the common elements or units of a residential condominium with a fire sprinkler system or other engineered life safety system in a building that has been certified for occupancy by the applicable governmental entity, if the unit owners have voted to forego such retrofitting and engineered life safety system by the affirmative vote of two-thirds of all voting interests in the affected condominium. However, a Condominium Association may not vote to forego the retrofitting with a fire sprinkler system of common areas in a high-rise building (a building that is greater than 75 feet in height).

CONDO QUIZ COLUMN

Question: Does the association have an automatic warranty from the developer on the roof and structure?

Answer: Yes. The warranty is for a period beginning with the completion of construction of each building or improvement and continues for 3 years thereafter or 1 year after owners other than the developer obtain control of the association, whichever occurs last, but in no event more than 5 years.

A Publication for clients, family and friends of:

Glazer & Sachs, P.A.

Eric M. Glazer, Esquire
Michael A. Rajtar, Esquire
Andrew C. Demos, Esquire
Meredith L. Spira, Esquire

Corporate Place, 8th Floor
1920 E. Hallandale Beach Blvd.
Hallandale, Florida 33009
(954) 983-1112
(954) 333-3983 - facsimile

The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation. The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you free written information about our qualifications and experience.