Legislative Review Wrap-Up

This week we conclude our annual review of 2018 legislation affecting Florida community associations, with a review of the amendments to Chapter 712 of the Florida Statutes, the Marketable Record Title Act, or MRTA, which become effective on October 1, 2018.

MRTA is primarily intended to facilitate real estate transactions, by eliminating “stale claims” against real property. However, the courts have found that covenants and restrictions of a homeowners’ association can be extinguished by MRTA. The general yardstick for MRTA extinguishment is thirty (30) years from the “root of title.” Though usually not the exact extinguishment date for most parcels, the most prudent yardstick for determining potential MRTA extinguishment is 30 years from the recordation of the original covenants and restrictions.

MRTA includes a process that allows residential homeowners’ associations to preserve the covenants and restrictions to prevent extinguishment. There is also a process in the Florida Homeowners’ Association Act, Chapter 720 of the Florida Statutes, which allows a community to “revitalize” covenants and restrictions that have been extinguished by MRTA.

One of the most significant changes regarding MRTA is actually found in the Homeowners’ Association Act. The new law requires that at the first board meeting after the annual members’ meeting, excluding the organizational meeting, the board shall consider the desirability of filing notices to preserve the covenants or restrictions affecting the community or association from extinguishment under MRTA.

Therefore, pursuant to the new statute, the board of every homeowners association, must annually consider the impact of MRTA even if the 30 year deadline is not imminent, or even if a preservation notice has already been filed.

Updates to Definitions in Chapter 712

  • Creates a new definition for “community covenant or restriction” to mean any agreement or limitation contained in a document recorded in the public records of the county in which a parcel is located which:
  • Subjects the parcel to any use restriction that may be enforced by a property owners’ association; or
  • Authorizes a property owners’ association to impose a charge or assessment against the parcel or the parcel owner.
  • Changes the term “homeowners’ association” to “property owners’ association” and defines the term to include a homeowners’ association as defined in Section 720.301, a corporation or other entity responsible for the operation of property in which the voting membership is made up of the owners of the property or their agents, or a combination thereof, and in which membership is a mandatory condition of property ownership, or an association of parcel owners which is authorized to enforce a community covenant or restriction that is imposed on the parcels.
  • Amends the definition of “parcel” to mean any real property that is subject to any covenant or restriction of a property owners’ association (and no longer requires that the property be used for residential purposes).

Filing Notice to Preserve

  • A property owners’ association may preserve and protect a community covenant or restriction from extinguishment by the operation of MRTA by recording, at any time during the 30-year period immediately following the effective date of the root of title:
    • A written notice in accordance with Section 712.06 of MRTA; or
    • A summary notice in substantial form and content as required under Section 720.3032(2) of MRTA; or an amendment to a community covenant or restriction that is indexed under the legal name of the property owners’ association and references the legal name of the property owners’ association and references the recording information of the covenant or restriction to be preserved.
  • The new law also includes a form which satisfies the notice obligation and constitutes a summary notice sufficient to preserve and protect the referenced covenants and restrictions from extinguishment under MRTA.

Revitalization of Covenants and Restrictions by Parcel Owners Not Subject To A Homeowners’ Association

  • Creates a process for communities not governed by a homeowners’ association to revitalize covenants and restrictions to revive covenants or restrictions, with certain exceptions.

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

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

Is it too soon to start talking about the 2018 Hurricane Season?

No! If Hurricane Irma taught us anything it is that adequate preparation before the storm will go a long way towards addressing issues after the storm.

Now is the time for associations to communicate with its owners about insurance- and liability-related issues. One of the often-confusing areas for many is understanding the scope and reach of the association’s insurance coverage versus the insurance coverage obligations of individual unit owners. Generally speaking, the association’s insurance coverage will only address the common elements. It will be up to individual unit owners to secure adequate insurance coverage for their own units.

If there is any confusion associated with insurance-coverage-related issues, the time is now to speak with an insurance agent to ensure that both your community and personal unit are adequately insured.

Speaking of insurance, associations should safely store copies of all of their applicable insurance policies. To the extent digital copies can be arranged for these insurance policies then that should be arranged too. These policies should be stored not just safely but stored in a manner that permits the association to easily gain access to the information contained in those policies after the storm has passed.

In the event that an insurance claim will need to be pursued then it is important to have “before” photos and videos of the property. In other words, take the time now to document, photograph and video your property. This will allow you to compare and contrast the extent of your damage “after” the storm hits. You can then present both “before” and “after” photographs, and videos, to an insurance company in support of your insurance claim.

Associations should also develop a plan to address a catastrophe. Since many associations are not just communities, but also families, these plans should include items such as cell phone communications and even meals. In the event of a lengthy power outage the association may want to take steps to have a generator present to have warm meals prepared for its members. The generator may also serve as a means to permit many individuals to charge their cell phones and other electronics to permit the members of the association to adequately communicate with their loved ones. The point here is that in addition to the traditional hurricane planning associated with many communities that focus on protecting the property, take some time to consider quality-of-life issues for the community in the event of a lengthy power outage or other related issues.

After a hurricane we often see many individuals, and companies, swoop in from out of town and promise many associations millions of dollars in insurance proceeds. But these groups often fail to deliver on those promises. Rather than falling victim to the overzealous, post-storm claim professionals promising riches, the better practice is to put your team in place before the storm hits. That way as soon as the storm passes and it is safe to start working on your insurance claim, your pre-screened professionals can begin the process for you. It would also be just as important to discuss all of these issues with your association’s legal counsel as well.

Addressing these issues now will ensure that your community is prepared for the 2018 hurricane season before it even starts.

 

Written by Hugo Alvarez, ESQ and originally posted to the FL Condo HOA Law Blog

Associations Should Prepare for Disaster in Advance

We are now over a month past Hurricane Irma.  While it certainly could have been significantly worse for Southwest Florida, many community associations are still working  through a variety of difficult issues, including processing insurance claims, continuing clean-up, and property restoration. While immediate attention must be paid to those issues, now is also a good time for associations to work on developing disaster preparedness and response plans for the future, or refining current plans based on what has been learned from this hurricane.

The steps that community associations can take to prepare for major casualties such as hurricanes, tornados, and fires, include review of what coverage is actually provided by your insurance policies, consideration of having flood insurance, and preparation of disaster preparedness and response plans. Now is the time. I have found that when years go by with no major hurricanes, people tend to lose focus on the importance of good planning. Human nature, I guess.

Section 718.111(11)(d) of the Florida Condominium Act requires a condominium association to use its best efforts to obtain and maintain “adequate insurance” to protect the association, the association property, the common elements, and the condominium property. The condominium statute does not specifically require flood insurance.  In fact, the law states that a condominium association “may also obtain … flood insurance,” implying that flood insurance is permissive, rather than legally required.

For condominiums located within designated flood hazard areas, flood insurance could be considered mandatory by the “adequate” insurance requirement of the statute. If flood damage occurs, not only the structure of the building may be damaged, but the electrical system, plumbing, and other utilities may have to be replaced in their entirety. In a high rise condominium building, unit owners on higher floors often forget that they also own a share of the lower floors. Further, windstorm insurance does not cover damage due to flooding, and vice versa. This could result in associations being underinsured in the event of damage due to both wind and flood. Further, a high percentage of flood claims occur outside of flood zones, so every association should take a hard look at this issue.

The Florida Homeowners’ Association Act, Chapter 720 of the Florida Statutes, imposes almost no insurance requirements on homeowners’ associations. The scope of required coverage and types of insurance required will be dictated solely by the governing documents. For attached structures, such as townhouses or villas, the difference between good and bad documents can mean the difference between financial success and disaster. Talk to your insurance agent and attorney to make sure the documents actually say what you want them to say, and are consistent with how you are insuring.

Associations should develop guidelines as to what actions will be done both before and after a disaster occurs. Before a disaster, associations should ensure that important documents such as insurance policies and association records are secured in a safe place, including having such documents on-line, designating an out of state contact for the association, and taking photographs and videos to document property conditions for insurance purposes.

After a disaster occurs, associations should rely on established relationships with contractors to perform emergency repairs. Associations should assemble a list of post-disaster contacts such as board members, management, attorneys, engineers, insurance agents, insurance adjusters, and so forth. There are, unfortunately, some opportunists and charlatans who chase these storms.

Associations should develop a program to keep owners informed regarding the status of association matters, for instance by email updates or posting on a website. Many association-owner disputes arise from these events. Some could be avoided with a little communication.

Hopefully, it will be a long time before we have to deal with these issues again. However, we certainly cannot count on it and should let Irma serve as a wake-up call that an ounce of prevention is often worth a pound of cure.

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

Community associations need to be hurricane-proof, too

As Mike Tyson said, “Everybody’s got a plan until they get hit.” This hurricane season is confirming the need for community associations to develop the right plans, learn from their experiences and continually refine their plans.

Many volunteer community association boards and their managers already know they should have date-stamped videos of their properties and enough money on hand (fully funded reserves or lines of credit) for storm repairs. Some highly prepared boards also have pre-negotiated debris removal pricing from landscapers, have adopted and tested emergency plans and have recently reviewed their insurance policies with their insurance agents and association attorneys to ensure they properly understand their coverage limits and deductibles.

Prepared communities will fare better in direct strikes from major storms than unprepared communities in less fearsome storms. Boards can best protect their communities by taking key steps:

  • Separate the urgent from the important: After storms, boards should immediately secure buildings from water intrusion, clear debris, and dry out units. Florida condominium, cooperative and homeowners’ associations have emergency powers whenever the governor declares a state of emergency, including the right to enter units, remove water-soaked items, dry out units and lien owners who fail to reimburse the association.

 

Selecting contractors and others to repair long-term storm damages require the same due diligence as do regular renovations or repairs. Boards must avoid signing full repair contracts and assigning insurance benefits to contractors under pressure and without taking the steps they would ordinarily take when hiring contractors.

  • Don’t rely solely on insurance company adjusters. They are not there to protect associations’ claims. Boards should consult association counsel to help retain independent adjusters and/or engineers or architects to fully evaluate and compile claims.
  • Wait for high-quality contractors who would ordinarily be hired for nonemergency projects. Don’t settle for unlicensed and/or out-of-state contractors.
  • Maintain up-to-date emergency contact information. Websites, emails, texts, phone calls, and postal mail are important channels to keep members and residents informed of the condition of buildings, when they can safely return to their homes and expect repair work to start. Proof of consistent, informative communications can defuse potential negligence claims levied against boards.
  • Prepare for an avalanche of scare tactics and misinformation after the storm , including from associations’ own insurance companies. Some insurance companies are advising policyholders that retaining independent adjusters and/or attorneys for their claims will delay their claims. Clearly, this is false.
  • Continue addressing daily business. Boards that had units in collections pre-Irma might be tempted to postpone collections efforts and focus on more pressing matters. However, it is critical to continue collections, as the ability to make storm repairs depends on assessments. Abating or delaying collections activities sends the worst possible message when boards have to assemble resources to cover repairs.
  • Learn from experience. As Hurricane Maria confirms, there will always be another hurricane. Hurricane plans should be updated continuously based on the problems and best practices identified in prior storms. Boards that lacked funds to address urgent matters should begin funding reserves or pursuing lines of credit before the next storm season begins. Those whose landscapers removed debris late and/or charged exorbitant prices should pre-negotiate these services and pricing. If residents expressed confusion, frustration, or anger regarding board communications, boards should confirm what went wrong and establish effective communications channels.

While we will never control Mother Nature, we can take the right steps before and after storms strike to help ensure our communities recover quickly and efficiently.

Written by Donna DiMaggio Berger is a shareholder at the law firm of Becker & Poliakoff. Originally posted on Florida Condo HOA Law blog.

 

Importance of Preparing for Hurricane Season

Today, Wednesday June 1, marked the official start of the 2016 Atlantic hurricane season that runs through the end of November. June 1 should serve as an important reminder about the need for individuals to be prepared for any emergency. This may be the start of the hurricane season, but emergencies can happen anytime, anywhere, and everyone needs to be prepared – not just those folks in hurricane-prone states.

Florida residents should check their personal preparations and emergency kits, note any alerts or messages from local emergency officials, and rehearse emergency evacuation routes. Emergency kit supplies should last at least seventy-two (72) hours.

Important items to have ready in case of an emergency include a battery-powered radio, flashlight, extra batteries, medicine, non-perishable food, hand-operated can opener, utility knife and first aid supplies. All important documents should be copied and stored in a waterproof bag. These may include medical records, contracts, property deeds, leases, banking records, insurance records and birth certificates.

When preparing for hurricane season and potential emergencies, the needs of all members of a household should be considered. If a household includes a person with a disability, special steps to assist them may be necessary and should be incorporated into all emergency planning.

Pets also require special handling. They may become agitated during the onset of a storm, so a pet carrier is a must for safe travel. Pet owners should research pet boarding facilities now within a certain radius of where they may evacuate, since animals may not be welcome in all shelters or hotels.

The beginning of hurricane season is also the time to ensure that their Associations maintain the proper insurance coverage, including both hazard and flood insurance coverage. Not only are homes and businesses in hurricane-prone states at risk for flooding, but inland flooding is common.
Mirza Basulto & Robbins, LLP, also reminds our Association clients to confirm that their insurance policies are in full force and effect and adjust deductibles as necessary.

We highly recommend Associations consult with their banks to obtain a line of credit or loan. In case of casualty loss, you must be prepared to cover potential expenses

As a cautionary tale, we have added a link to an article published in the Sun-Sentinel, as to the horrors of not maintaining a hazard and/or flood insurance policy. As a member of the Board of Directors, you have a fiduciary duty to the unit owners to ensure maintenance of such policies (and a personal liability if such policies are not maintained). Insurance premiums may be financed and/or loans may be obtained to finance the acquisition of such policies if not already in place. We encourage you to contact our office should you require more information in this regard.

In the event of the occurrence of any event that is covered under the Association’s insurance policies in effect, we encourage your Association to contact our firm to discuss the filing of a claim.

 

Originally posted at http://www.mbrlawyers.com/