Association Requirements to Hurricane Coverage

Q:        To cut costs, my condominium association wants to stop buying hurricane insurance. Are they allowed to do this under the law? (S.W. via e-mail)

  1. No. Section 718.111(11)(a) of the Florida Condominium Act requires condominium associations to use their “best efforts” to obtain “adequate” property insurance. Pursuant to the statute, “adequate” insurance is based on the replacement cost of the property to be insured, as determined by an independent insurance appraisal at least once every 36 months.

The property which must be insured by the association includes all portions of the condominium property as originally installed, in accordance with the original plans and specifications, and replacements of like kind and quality. However, certain items, such as wall, ceiling, and floor coverings, cabinets, countertops and appliance within the unit, are excepted from the association’s insurance responsibility, and are the responsibility of the unit owner. Therefore, your condominium association is required to purchase and maintain property insurance on the condominium property, including windstorm insurance.

Q:        Can my condominium association include trees destroyed by Hurricane Irma in a special assessment for roof and building damage repair? (M.L. via e-mail)

A:        Yes. The association has the duty to repair the condominium property after an insurable event. This includes removal of debris and typically includes replacement of landscaping that was damaged or destroyed. Assuming that this landscaping is party of the common elements of your condominium, it is entirely proper for the association to include these amounts in a special assessment.

 

Written by Joe Adams and originally posted on the FL Condo HOA Law Blog

State Changes Barbecue Grill Rules

Q:        Has the law been changed to allow grilling on condominium balconies? (J.S. via e-mail)

  1. Yes. The Sixth Edition of the Florida Fire Prevention Code, effective December 31, 2017, permits the use of certain electric grills on condominium balconies. A new edition of the Florida Fire Prevention Code is required to be adopted by the State Fire Marshall every third year, pursuant to Section 633.202 of the Florida Statutes.

The current edition of the Code is based on the 2015 NFPA 1 Fire Code. With respect to cooking equipment, Section 10.10.6.1 prohibits using or kindling hibachis, grills, or other similar devices for cooking, heating, or any other purpose on any balcony, under any overhang portion, or within 10 feet of any structure, other than in one and two-family dwellings. However, Section 10.10.6.1.1 allows listed electric portable, tabletop grills, or other similar apparatus, so long as they do not exceed 200 square inches of cooking surface.

Even if permitted by the Code, you would need to confirm that your association has not adopted any rules which prohibit the use of electric grills and similar items on the condominium property. Board made rules, if reasonably related to safety, can be stricter than the minimum requirements of state law.

 

Written by Joseph Adams and originally posted on the FL Condo HOA Law Blog

BEWARE: Bankruptcy Do’s and Don’ts

If your Community Association has been spared from bankruptcy in the last decade count yourself lucky.  Bankruptcy, in general, is intended to (1) provide a fresh start for the honest, but unfortunate debtor (delinquent owners), and (2) provide equal treatment of all Creditors (including the Association).  Unfortunately, Bankruptcy has also become a safe haven for delinquent owners who file bankruptcy in bad faith simply to delay a foreclosure sale without any real intention of actually organizing their debts and completing the bankruptcy plan.  While an Association cannot prevent an owner from filing for bankruptcy there are some steps you can take to mitigate the impact of a bankruptcy filing.  Here are my top eight Do’s and Don’ts:

  1. DO: Implement and follow a strict collections policy that includes turnover of delinquent accounts no later than 90 days from the date of delinquency.  The longer you hold off on pursuing collections the higher the amount of the debt and the bigger the exposure to the Association should the Debtor value the Association’s lien in a Chapter 13 Bankruptcy.  Often times a Debtor will wait until the date of the foreclosure sale to file a Chapter 13 Bankruptcy and if the amount owed to the first mortgagee is more than the value of the property the Debtor can strip the secured status of the Association’s claim of lien and only pay a fraction of what was owed prior to the bankruptcy filing (pre-petition debt) through a 36 or 60 month bankruptcy plan.
  2. DO: File a Proof of Claim.  Secured creditors must file a proof of claim for the claim to be allowed.  The deadlines for filing a proof of claim have been tightened in recent years.  Failure to file a proof of claim may prevent the Association from collecting its pre-petition debt.
  3. DO: Continue to send routine correspondence to debtors, including but not limited to annual meeting notices, coupon books, meeting notices to levy a special assessment.
  4. DO: Notify your bankruptcy attorney of any changes in post-petition maintenance including special assessments or regularly accruing maintenance BEFORE they come due.  Assuming the post-petition maintenance is being paid inside the bankruptcy plan a Creditor must notify the Bankruptcy Court, Debtor, Debtor’s counsel, and Trustee of any change in the amount of the maintenance 21 days before the change is to take effect.  Failure to notify the Court and the parties of this change could prevent the Association from collecting on the difference owed at all.   
  5. DON’T: Try to collect, enforce, or otherwise pursue an owner for any amounts owed prior to the filing of a bankruptcy petition.  This could be a violation of the automatic stay in Section 362 of the Bankruptcy code.
  6. DON’T: Charge the debtor late fees or interest while the bankruptcy is pending. Only if the Association’s claim is secured is interest collectible.  A conservative approach is to keep both the interest and late fees off the Association’s ledger for the pendency of the Bankruptcy.
  7. DON’T: Send the delinquent owner an invoice for any amounts that came due prior to the filing of the bankruptcy petition.  Unless or until your bankruptcy attorney has advised you that the stay has been lifted do not send the debtor an invoice for amounts owed.  If you know that the debtor has filed for bankruptcy yet innocently sent the invoice, the Bankruptcy courts will consider this a knowing violation of the bankruptcy stay and the Association would be responsible for any damages, such as legal fees incurred.
  8. DON’T:  Try to handle a bankruptcy on your own.  Immediately upon notice of a bankruptcy filing contact your community association attorney or a bankruptcy attorney who specializes in representing creditors.  Bankruptcy is not only a complicated process with long term financial and legal consequences, but a corporation must be represented by a lawyer in Federal Bankruptcy Court.  Only in very limited circumstances according to local rules can a corporation perform certain acts on its own such as filing proofs of claim and filing a request for service.

Written by Candace C. Solis and originally posted to the FL Condo HOA Law Blog