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Florida Condo & HOA Legal Blog

News & Updates on Condo & HOA Laws & Legislation in the State of Florida

Can I afford to Grow Old?

Posted in Elder Law, Housing for Older Persons (55 and Over), Reader Q&A

Senior couple wearing spectacles, smiling, portraitQuestion: I have been saving up for retirement, but will it be enough if either my spouse or I get sick? My parents seem to be doing fine with money, but my mom was recently diagnosed with dementia, will my dad be able to afford her care? Does the government offer any programs to help us as we age?

Answer: In this current world of uncertainty, many individuals are facing real concerns regarding whether they or their parents will outlive their money. Cost of long-term care in the U.S. has skyrocketed, with the in-home care costing between $18-$21 an hour for an aide, assisted living facilities costing an average of $3,861 a month (for memory care facilities, the cost can be upwards of $6,500 a month, and the average cost of a nursing home being $8,000-11,000.) As such, seniors are looking to government programs, such as Medicaid and Veteran Administration Aid and Attendance, to assist with paying for care, yet many do not financially qualify for the programs. With Medicaid requirements being as low as $2,000 in assets for an individual to qualify and VA Aid and Attendance Enhanced Pension Benefit which is available to certain wartime veterans, having eligibility criteria that are a very complex, planning with an experience Board Certified Elder Law Attorney is a necessity. Once an individual is eligible to receive benefits from VA and/or Medicaid, private money saved can be used for a healthy spouse, or to better one’s care. But do you need to sell your home to qualify? The simple answer is almost always, no. Homesteads are excluded from Medicaid’s calculation of assets one has, and in many cases, an individual can own his or her own home until death and still being able to transfer the home to beneficiaries. Getting more information to learn what to do to properly plan is important. You saved your money, now you should protect it from the overwhelming cost of long term care.

Heidi F. Friedman of Becker & Poliakoff is Board Certified Elder Law attorney. She has extensive experience in elder law, Medicaid programs, Veteran’s Administration programs and special needs planning by working and being closely associated with some of the most knowledgeable Florida professionals in the field. Please feel free to contact her at hfriedman@bplegal.com.

Becker & Poliakoff Wins Multi-Million Dollar Jury Verdict In Landmark Construction Case

Posted in advocacy, Construction, Construction Issues & Contractual Disputes, Litigation

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FOR IMMEDIATE RELEASE
Media Contacts:
Kris Conesa or Andi Phillips
Roar Media
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(305) 975-5934 or (305) 401-5098

Jury Finds Subsidiary of National Developer Hovnanian Enterprises Inc. Liable for Breach of Contract and Violation of the New Jersey Consumer Fraud Act

MORRISTOWN, NJ & FORT LAUDERDALE, Fla. – June 5, 2017 – Becker & Poliakoff secured a landmark $9 million-plus jury verdict Thursday against a subsidiary of Hovnanian Enterprises, Inc. (NYSE: HOV). The award includes punitive (treble) damages for violation of the New Jersey Consumer Fraud Act and also entitles the plaintiff to recover attorneys’ fees, costs and prejudgment interest. The jury found that Hovnanian Enterprises used the subsidiary as an instrument to commit a fraud or injustice on purchasers of condominium units. The ultimate recovery against all parties, including the project architect and geotechnical engineer, could exceed $20 million.

After a six-week trial in New Jersey Superior Court (Docket No. HUD-L-2560-13), the jury agreed that Hovnanian, after learning that the condominium building was being improperly constructed with plywood flooring in violation of the building code, chose to nevertheless continue construction. Hovnanian then sought to reclassify the building type. The jury agreed with the plaintiff’s position that the reclassification was never approved by governmental authorities. The units were then sold without disclosing the code violations or the lack of approval to the buyers. The claim arose out of construction problems with the six-story, 132-unit residential and commercial building in Port Imperial, West New York, NJ.

Matthew Meyers, a Shareholder in Becker & Poliakoff’s Morristown office, represented the homeowners and initiated the suit against Hovnanian. “Hovnanian knew that the use of combustible materials in the flooring was in violation of the building code, and instead of fixing the mistake, attempted to change the building’s classification. They then sold units knowing that the change in classification had never been approved. They continued to arrogantly defend their conduct at trial but the jury would have none of it. Hopefully, after this verdict, Hovnanian will get the message.”

“A key point making this landmark case particularly unique is that the parent company, Hovnanian Enterprises, was found to have used its shell subsidiary to perpetrate an injustice on the condominium unit buyers,” said Becker & Poliakoff shareholder John Cottle, who was first chair/lead trial counsel in the case representing the homeowners. “This is a rare instance in which the ‘corporate veil’ was pierced, and we expect the result of this will be that Hovnanian Enterprises will ultimately be held responsible for the judgment.”

In addition to Cottle, the Becker & Poliakoff trial team from Florida included: Perry M. Adair, Miami managing shareholder and a board-certified construction law attorney; and Sanjay Kurian, a shareholder and board-certified construction law attorney. The New Jersey team included Vincenzo Mogavero, a shareholder and litigation Chair and Martin Cabalar, in addition to Mr. Meyers.

About Becker & Poliakoff
Becker & Poliakoff, with headquarters in Fort Lauderdale, Fla., is a multi-practice commercial law firm with attorneys, lobbyists and other professionals at offices across the United States. More information is available at www.bplegal.com.

 

Can the Association Board Fill a Vacancy Without an Election?

Posted in Association Documents, Board Eligibility, Elections, Governing Documents, Voting

Question: Recently, one of the members of our board of directors resigned from the board and sold their unit. When he announced his resignation, I expected the association to schedule an election to fill the vacancy. However, at the most recent board meeting, the board voted to fill the vacancy. Aren’t the members of the board of directors required to be elected by the unit owners? (W.O. via e-mail)

Generally, the members of the board of directors of a condominium association are elected by the members of the condominium association. However, in the event that a vacancy occurs on the board of directors, the remaining members of the board of directors likely have the authority to appoint a replacement to complete the term. Section 718.112(2)(d)9., Florida Statutes, states “[u]nless otherwise provided in the bylaws, any vacancy occurring on the board before the expiration of a term may be filled by the affirmative vote of the majority of the remaining directors, even if the remaining directors constitute less than a quorum, or by the sole remaining director.”

However, some condominium documents contain alternative requirements and may require that the vacancy be filled by election, rather than board appointment. Therefore, while it would be necessary to review the condominium documents to confirm, pursuant to the statute, the board would typically have the authority to fill a vacancy on the board of directors without an election.

Similarly, for homeowners’ associations and cooperative associations, unless alternate provisions are provided for in the governing documents, the remaining board members would have the authority to appoint a person to fill a vacancy created on the board of directors.

Donna DiMaggio Berger on Topical Currents Wednesday, June 7, 2017

Posted in Association Documents, Voting, Water Sprinklers

Donna Berger, Florida Condo LawyerDon’t miss shareholder Donna DiMaggio Berger — the featured guest on WLRN 91.3FM Topical Currents — this Wednesday, June 7, from 1-2pm. Donna will discuss what board members, managers and residents need to know about landmark association laws just passed by the Florida Legislature, including how to avoid the new criminal penalties attached to the document inspection and election processes.

Donna will also explain more about Becker & Poliakoff’s success in securing key ELSS and sprinkler opt-out rights for older high-rise buildings, address current issues facing homeowner and condominium associations and answer listener questions. WRLN’s call-in line is 800.743.9567.

Community Association Board Members Can be Considered Limited Purpose Public Figures in Defamation Cases

Posted in Liability

perl_h_smThere is a growing body of case law around the country which would make it more difficult for an allegedly defamed community association board member to successfully pursue his or her day in court. Is a community association board member an average, private citizen or is a community association board member really a special category of public figure open to more scrutiny?

Can a community association board member be considered a limited purpose public figure and therefore held to the higher standard of actual malice when bringing a defamation claim in Florida? If so, what are the criteria for establishing a community association board member as a limited purpose public figure for defamation purposes?

To state a cause of action for defamation in Florida, a plaintiff must allege that:

  1. the defendant published a false statement;
  2. the statement was made about the plaintiff;
  3. the statement was made to a third party; and
  4. the falsity of the statement caused injury to the plaintiff.

There are two basic types of figures in regard to defamation cases –private figures and public figures. Those who are not classified as public figures are considered private figures. Assuming the four prongs needed to file a cause of action are met, defending a defamation lawsuit filed by a public figure is typically much easier than defending one filed by a private figure. There are two types of public figures recognized under defamation law:“public officials or public figures” and “limited¬purpose public figures.”

All-purpose public figures are private individuals who occupy “positions of such persuasive power and influence that they are deemed public figure for all purposes. . . . They invite attention and comment.” Examples of such figures would include President Trump, Governor Scott, Bill Gates, Paris Hilton, any candidate for elected public office, etc.

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Changing Governing Documents Generally Requires Homeowner Approval

Posted in Association Documents, Governing Documents

Working with documentsQuestion: My homeowners’ association is about twelve years old and we are considering doing a complete rewrite of our governing documents. Some members of the board have stated that we cannot replace our governing documents, but only amend them. Is this correct? (D.N. via e-mail)

Answer:  The difference between amending the governing documents and completely rewriting them is simply an issue of scope. Following transition from the developer, it is not uncommon for newly owner-controlled communities to wish to rewrite, or as it is often called, “amend and restate,” their governing documents. Goals typically include removing obsolete references to the developer and addressing substantive provisions of the governing documents to better meet the community’s needs.

The various governing documents for a homeowners’ association will normally contain a provision which sets forth the amendatory procedure for each document. With the exception of the rules and regulations which vary, the other governing documents (declaration of covenants, articles of incorporation and bylaws) all usually require some level of membership vote to approve amendments. Section 720.306(1)(b) of the Florida Homeowners’ Association Act states that unless otherwise provided in the documents or required by law, the documents are amendable by two-thirds vote of the entire voting interests of the homeowners’ association. There is typically one voting interest per parcel.

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Isn’t Medicaid Only for the Really Poor?

Posted in Elder Law, Estate Planning, Medicaid

friedman_h2Question: I can’t qualify for Medicaid assistance because I have too much money. I own my house, doesn’t that disqualify me from Medicaid? Won’t Medicaid take my house after I die?

Answer: The Long-Term Care Medicaid program provides assistance to those who either reside at home, in assisted living facilities or in nursing homes. As the cost of aging can be exorbitant, qualifying for this program is greatly desired, and for some, is the difference between being able to remain at home with care and moving into a nursing home.  In most cases, someone’s home is considered an exempt asset for Medicaid purposes, but whether the government can recover any benefits that it paid during someone’s life from that individual’s estate, depends on how the property is deeded and passed to beneficiaries. While Medicaid has strict financial requirements, and allows for some estate recovery upon death, with the proper planning and advice from a Board Certified Elder Law attorney, many families can qualify for the Long-Term Care Medicaid program, while still maintaining a significant portion of their assets within the family and avoid estate recovery completely.

Heidi F. Friedman of Becker & Poliakoff is Board Certified Elder Law attorney. She has extensive experience in elder law, Medicaid programs, Veteran’s Administration programs and special needs planning by working and being closely associated with some of the most knowledgeable Florida professionals in the field. Please feel free to contact her at hfriedman@bplegal.com.

Golf Balls and Windows in Florida HOAs

Posted in Liability

Person preparing to hit golf ball from teeQuestion:  My home is located near the tee box of the first hole of a local golf course.  Periodically (but very infrequently) an errant golf ball strikes my house.  Two weeks ago a particularly bad golfer sent a golf ball right through my window, causing considerable damage.  I ran out to get their name and phone number so that they could pay for the damage.  They said they wouldn’t pay and rudely told me to “move.”  It cost me $500 to repair the damage to my home.  Can I hold the bad golfer and/or the golf course responsible for the damage? N.M. via e-mail

Answer:  You may have a claim against the golf course owner if it can be proven that the design of the golf course is somehow flawed and unsafe.  These types of claims are very difficult to prove and would usually require the assistance of an expert consultant to fully evaluate the situation. There are also several defenses the golf course owner could raise, including the fact that you were “on notice” that living on a golf course could result in golf balls entering your property, and that you assumed the risk.

You may also have a claim against the driver of the errant golf ball.  The courts have generally held that the driver of a golf ball is charged with the duty to exercise ordinary care for the safety of property and persons reasonably within the “range of danger.”

Officers are Elected or Removed by the Board of Directors in Florida Condominiums

Posted in Employment, Voting

business people having problem in officeQuestion: I am the president of my condominium association and I have decided that we should fire our secretary. Do I have the authority to fire the secretary or is this something that should be voted on by the board of directors?    (E.P. via e-mail)

Answer: The president of the association, as an officer, generally would not have the authority to “fire” another officer. Rather, officers are typically elected by the board of directors and serve at the pleasure of a majority of the board of directors. As such, a majority of the board of directors would have the authority to remove the secretary or any other officer from his or her office by a majority vote of the board.

However, please note that removing an officer from his or her office is significantly different than removing someone from the board of directors entirely. The officers of the association are usually elected from the members of the board of directors. Accordingly, while a director may be removed from his or her office, such as being removed as the secretary or treasurer, he or she could not be removed from the board of directors by a board vote. The authority to remove a person from the board of directors is reserved to the members. Both Chapter 718, Florida Statutes, the Florida Condominium Act, and Chapter 720, Florida Statutes, the Homeowners’ Association Act, provide that a majority of the members have the authority to recall a sitting director and may recall a sitting director for any or no reason.

Therefore, the president alone would not have the authority to remove another officer. However, a majority of the board would. Again, the individual would remain on the board of directors as it would require a membership vote to recall a sitting director.

Florida Condo Board May Have Authority to Approve Changes to Common Areas

Posted in Association Documents, Common Areas, Material Alteration, Voting

Empty bike rackQuestion: Recently, my condominium association installed a bike rack and bench on the property. Following the installation, I questioned the board whether these changes should have been approved by 75% of all unit owners. In response, the board stated that our documents allow the board to spend up to 5% of the association’s budget on alterations to the condominium property without additional unit owner approval. Can that be correct? (M.W. by e-mail)

Answer: Possibly. Section 718.113(2), Florida Statutes, states that there shall be no material alteration or substantial additions to the Common Elements or to real property which is association property except in the manner provided by the declaration. If the declaration is silent, the statute states that such changes shall be approved by 75% of the total voting interests of the association. Therefore, while the default position in the statute is that material alterations or substantial additions to the Common Elements or association property must be approved by a 75% vote of the membership, the declaration can provide for other levels of approval.

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