Community Update

The Impact of the New Department of Labor Rule on Worker Classification and Ensuring Proper Classification of Workers

By: Jamie B. Dokovna and Kaitlyn Silverberg

In the early 2000s, employers and established businesses rarely sought out the work of independent contractors. Now decades later this has changed significantly as employers are relying more and more on independent contractors instead of employees. While using independent contractors can have certain benefits, there can also be certain risks especially when it comes to classification.  

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Addressing Burdensome Records Requests via the Rule-Making Power of Condominium Associations

By: Casey Amaya

Records requests can become quite daunting when a board of directors is faced with a high volume of demands from unit owners asserting their right of inspection of the association’s official records.

Section 718.111(12)(c)(1) of the Florida Condominium Act (“Act”) permits condominium associations to “adopt reasonable rules regarding the frequency, time, location, notice, and manner of record inspections . . . .” The Act, however, stops short of defining the limitations on “frequency” and “time;” two terms that have been the subject of arbitration disputes. 

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So, You Received a Written Inquiry

By: Nicolas M. Jimenez

Your community association has just received, by certified mail, a letter from a unit owner with several questions about the operation of the Association. What do you do next?

First and foremost, you should always ensure that your community association’s legal counsel is promptly notified of such inquiries because receipt alone may trigger time sensitive legal obligations that can expose the association to penalties if the correct steps are not taken.

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Bailey v. Shelborne Ocean Beach Hotel Condominium Association, Inc.
307 So.3d 74 (Fla. 3d DCA 2020)

By: Jay Roberts

Ensuring that proper approval occurs prior to actions taken is at the heart of THIS CASE. A condominium/hotel underwent two major construction projects financed by special assessments totaling over $30 million. Portions of the construction project constituted “material alterations or substantial additions” to the condominium property. Prior to construction activities occurring, only the board of directors had approved the scope of work. After the construction was completed, over 75% of the owners voted to approve the completed construction. Unit owners sued the association and board members alleging violations of the Condominium Act and breach of fiduciary duty. The trial court granted summary judgment for the defendants, and the unit owners appealed.

While there were various issues heard on appeal, particular attention needs to be given to the issue of material alteration approval. The applicable statute analyzed in THIS CASE was the 2017 version of F.S. 718.113(2)(a), which provided:

(2)(a) Except as otherwise provided in this section, there shall be no material alteration or substantial additions to the common elements or to real property which is association property, except in a manner provided in the declaration as originally recorded or as amended under the procedures provided therein. If the declaration as originally recorded or as amended under the procedures provided therein does not specify the procedure for approval of material alterations or substantial additions, 75 percent of the total voting interests of the association must approve the alterations or additions. This paragraph is intended to clarify existing law and applies to associations existing on October 1, 2008.

The association relied on the underlined verbiage and argued that the after the fact 75% approval satisfied the Condominium Act’s requirements. The appellate court disagreed. The court stated that the statutory language starts off with a general prohibition, but then goes on to provide for exceptions (those found in the declaration of condominium as originally recorded or amended and the underlined statutory “gap filler” shown above). In concluding that the association had violated the Condominium Act, the court stated:

If the 75% approval vote were truly permitted at any time, as the Association contends, a condominium association could complete work on significant material alterations and substantial additions; and then, years later, seek approval for the completed construction. Indeed, if an Association could approve material alterations or substantial additions at any time in the future after completion, it is unclear how there could ever be a violation of the statute’s general prohibition because approval could always be pending.

It should be noted that that F.S. 718.113(2)(a) was amended in 2018, and now reads:

(2)(a) Except as otherwise provided in this section, there shall be no material alteration or substantial additions to the common elements or to real property which is association property, except in a manner provided in the declaration as originally recorded or as amended under the procedures provided therein. If the declaration as originally recorded or as amended under the procedures provided therein does not specify the procedure for approval of material alterations or substantial additions, 75 percent of the total voting interests of the association must approve the alterations or additions before the material alterations or substantial additions are commenced. This paragraph is intended to clarify existing law and applies to associations existing on July 1, 2018.

As you can see, the Legislature had essentially codified what ended up being the holding of THIS CASE.

So why does THIS CASE matter? Failing to garner proper approval for material alterations or substantial additions prior to commencement of work on those alterations or additions to the condominium property could result in substantial legal liability. If your association is considering any change to the condominium property, the board needs to reach out to the association’s legal counsel to discuss what steps need to be taken prior to the work commencing.