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Becker Welcomes Norfolk Airport Authority as Newest Federal Lobbying Client

Becker, a multi-practice commercial law firm with attorneys, lobbyists, and other professionals at offices throughout the East Coast, announces that they will be providing comprehensive federal government relations and legislative liaison services on behalf of their newest client, Norfolk Airport Authority (NAA). The NAA is political subdivision of the Commonwealth of Virginia and an independent autonomous agency of the City of Norfolk that oversees the operation of the Norfolk International Airport.

“The aviation industry is confronting complex challenges on several fronts, said Anthony Bedell, Senior Corporate & Government Relations Director in Becker’s Federal Lobbying Practice. “We’re honored that the Norfolk Airport Authority has entrusted Becker with their federal lobbying strategy.”

Becker Lobbyists Bedell and Clarence Williams will co-lead the representation of the NAA in Washington, DC. Becker will collaborate with Capital Results, a public affairs and business consulting firm, to address the NAA’s state lobbying needs. Capital Results Partner Rob Shinn will spearhead that effort in Richmond.

Becker’s Federal Lobbying Practice began in 2011 with the addition of two Capitol Hill Chiefs of Staff and the Legislative Director of a US Senator. The bipartisan powerhouse team quickly grew the practice to ten lobbyists, including veteran DC lobbyists and former high-level Hill staffers, and senior Administration officials with deep experience in securing federal grants. The team has a portfolio of public and private clients including The Virginia Port Authority, City of Virginia Beach, Virginia Union University, National Association of Waterfront Employers (NAWE), and Transurban as well as several others throughout the United States.

ABOUT BECKER

Becker, with headquarters in Fort Lauderdale, Fla., is a multi-practice commercial law firm with attorneys, lobbyists, and other professionals at offices throughout the East Coast. More information is available at beckerlawyers.com.

“Do Owner Petitions Require the Board to Act?” Naples Daily News

Q: My condominium is being overrun by commercial vehicles. I am trying to convince my board and fellow owners to change the documents to outlaw them. I got 15 percent of the owners to sign a petition to ban commercial vehicles. I gave the petition to the board but they won’t do anything. Aren’t they required to take some action? F.S.

A: It depends. The answer will depend on your condominium documents and what your petition said.

The Florida Condominium Act does state that if 20 percent of the voting interests petition the board to address an item of business, the board, within 60 days after receipt of the petition, shall place the item on the agenda at its next regular board meeting or at a special meeting called for that purpose. This provision only pertains to an item of business being placed on the agenda for a board meeting (as opposed to a membership meeting).

There is, however, no requirement for the board to “go along with” or approve the item of business the petitioning owners submitted for consideration at the subject board meeting. Even if your petition did request for the board to at least consider adopting a rule on commercial vehicles, the board would not be legally required to recognize it because you didn’t get enough signatures. That doesn’t mean that the board couldn’t still consider the request, and I would think most boards would.

Another approach to accomplish your goal is to seek to have the declaration of condominium amended to include the amendment you want, as you present it. Most declarations contain a process for owner petition to initiate proposed amendments, 25 percent being a common requirement, and most bylaws contain a procedure for owners to ask for a special members’ meeting to be called to vote on such an amendment.

Q: An owner is suing my homeowners association over a pet dispute. I see this owner at every board meeting and he asks a lot of questions he should know the answer to and is generally annoying. Can’t the board prohibit him from attending board meetings since he is suing the association? C.T.

A: No. Just because this owner is suing the association doesn’t mean he can be excluded from attending board meetings. He is still an owner and still has the right to attend open board meetings and comment on agenda items. The board can (and sounds like maybe it should) adopt a rule limiting owner comments to 3 minutes per agenda item.

The Florida Homeowners’ Association Act does permit a board meeting to be “closed,” to discuss “proposed or pending litigation” with the association’s attorney. Obviously, any board discussion of the pet lawsuit should occur at this type of meeting and that owner (as well as other owners) are not legally entitled to attend.

Q: One of the owners in a condominium I manage is running for the board. Instead of filling out the form I provided for candidates to list their qualifications, he provided his own one-page resume. Am I required to enclose his resume to the annual meeting notice or can I force him to fill out the form I provided? V.R.

A: There is no legal requirement that a person wishing to run for the board signify their intention to do so by filling out the form sent out by the association. You are required to include his resume with the meeting notice package (assuming an election is required by more people running than there are open seats) as long as it is a one-page document which is no larger than 8 ½ inches by 11 inches.

The Florida Administrative Code states that the information sheet may describe the candidate’s background, education, and qualifications, and cannot be edited by the association. Failure to include the information sheet (resume) with the meeting notice is grounds to invalidate the election.

David Muller is board-certified in Condominium and Planned Development Law and regularly provides practical advice that ensures the fiscal success and legal compliance of both commercial and residential community associations. He has significant experience in drafting governing documents and amendments, negotiating contracts, dispute resolution, and more. For David’s complete bio, please click here.

Becker’s Washington Weekly: October 18, 2021

THE ADMINISTRATION

Although Congress temporarily extended the debt limit through December 3, 2021, some experts believe the actual deadline will be much later. Flexible spending and collection from coronavirus relief, tax revenues, and a potential boost to the Highway Trust Fund through the Bipartisan Infrastructure Plan (should it pass) will impact when Congress passes the next extension, but it is still anticipated to occur in early December to avoid a default.

The President may see his domestic agenda – largely comprised of the infrastructure and reconciliation bills – take clearer shape by the end of this month. Senate Majority Leader Chuck Schumer (D-NY) has set an end-of-October deadline to break internal party gridlock on the reconciliation tax-and-spend plan which aligns with the House’s self-imposed October 31st deadline. However, experts believe the time to pass these bills will be in December when members will want to quickly conclude legislative business before the holiday recess.

THE HOUSE

The House will conduct votes on numerous bills this week, including H.R. 2119 that would reauthorize $270 million in annual grants to prevent domestic violence and support domestic violence survivors. It will also consider workplace accommodations for nursing mothers in H.R. 3110, including allowing private nursing locations and reasonable break times.

Additionally, the House will consider several bills regarding national security and data privacy, including a bill that would require rental car companies report customers’ suspicious activity to prevent terrorism, and another that would allow the Privacy and Civil Liberties Oversight Board to supervise federal agencies’ use of AI for counterterrorism.

The House has numerous hearings scheduled this week:

  • The House Small Business Committee will discuss global supply chains and small business trade challenges.
  • The House Science, Space, and Technology Committee will host a joint hearing between the Subcommittees on Investigations and Oversight and Energy on how to improve the Office of Nuclear Energy.
  • The House Select Committee on the Modernization of Congress will consider ways to modernize congressional support agencies to meet Congress’ needs.

THE SENATE

The Senate will host multiple hearings this week:

  • The Senate Environment and Public Works Committee will evaluate the federal response to the impact of PFAS chemicals on the environment.
  • The Senate Banking, Housing, and Urban Affairs Committee will give an international policy update, specifically focusing on the Treasury Department’s sanctions and policy review.
  • There will be multiple confirmation hearings this week, including consideration by the Senate Foreign Relations Committee of R. Nicholas Burns for U.S. Ambassador to China and Rahm Emanual for U.S. Ambassador to Japan.

Becker’s Federal Lobbying Team will continue to monitor these developments as they evolve and will share with you as soon as information becomes available.

“Community Associations Affected by the 2021 Legislative Session Part X,” News-Press

This week continues our review of the 2021 legislative changes affecting Florida community associations focusing on two bills that address COVID-19 pandemic legal issues.

Senate Bill 72 took effect on March 29, 2021. This law was initially reported in this column on April 25, 2021. SB 72 outlines the legal process a plaintiff must follow to bring a claim based on an alleged COVID-19 infection from the defendant’s premises. The new law creates several legal hurdles for a plaintiff seeking damages, including the requirement that the complaint (initial lawsuit filing) be accompanied by an affidavit signed by a physician licensed in the State of Florida stating the physician’s belief within a reasonable degree of medical certainty that the plaintiff’s COVID-19 injury was the result of the defendant’s acts or omissions.

The statute requires that the court first hold an evidentiary hearing to determine whether the defendant made a good faith effort to comply with public health standards. If the court finds that the defendant did make such a good faith effort, the defendant is immune from liability.

If the court determines that the defendant did not make a good faith effort, the plaintiff may proceed with the lawsuit, but the plaintiff must show that the defendant committed gross negligence in order for the defendant to be held liable. Gross negligence is a much higher standard than is required in most civil lawsuits.

Senate Bill 2006 became effective July 1, 2021. Section 252.36 of Florida Statutes, which deals with the emergency management powers of the Governor, was amended to provide that an executive order, proclamation, or rule establishing a state of emergency must be limited to a duration of not more than 60 days and may be renewed as necessary during the duration of the emergency. If renewed, the order, proclamation, or rule must specifically state which provisions are being renewed. Further, at any time, the Legislature, by concurrent resolution, may terminate a state of emergency or any specific order, proclamation, or rule thereunder. Upon such concurrent resolution, the Governor shall issue an executive order or proclamation consistent with the concurrent resolution.

Section 252.38(4) of the Florida Statutes addresses emergency orders imposed by political subdivisions, meaning local governments such as counties, cities, towns, and villages. Local orders issued in response to hurricanes or other weather-related emergencies are not covered by this law. The new law vests the Governor with power, at any time, to invalidate an emergency order issued by a political subdivision if the Governor determines that such order unnecessarily restricts individual rights or liberties. The law grants broad discretion to the Governor in determining what local orders “unnecessarily restrict individual rights or liberties.” Obviously, these changes were the result of the plethora of sometimes complicated and occasionally contradictory local orders regarding COVID-19, especially during the early phases of the pandemic.

New Section 381.00316 of the Florida Statutes, states that a “business entity” may not require “patrons or customers” to provide any documentation certifying COVID-19 vaccination or post-infection recovery to gain access to, entry upon, or service from the entity’s business operations. The law does not otherwise restrict instituting screening protocols consistent with authoritative or controlling government-issued guidance to protect public health.

The term “business entity” includes not-for-profit corporations and would therefore include community associations. However, there is substantial debate whether the new prohibition against “vaccine passports” applies to owners, residents, or others in a community, specifically whether such persons are “customers” or “patrons.” If an entity violates the statute, the Department of Health may impose a fine not to exceed $5,000.00 per violation.

Next week we will conclude our review of the 2021 Legislative Session.

Joseph Adams is a Board Certified Specialist in Condominium and Planned Development Law, and an Office Managing Shareholder with Becker & Poliakoff. Please send your community association legal questions to jadams@beckerlawyers.com. Past editions of the Q&A may be viewed at floridacondohoalawblog.com.

“Condominium Associations Should Have Written Collection Policies & Procedures,” FLCAJ Magazine

The 2021 legislative session brought some significant changes to the Condominium Act, the Cooperative Act, and the Homeowners Association Act. These changes went into effect on July 1, 2021, and many of them impacted the collections and foreclosure process for community associations.

At the outset, we always recommend that community associations work with their association’s attorney to craft a written collections procedure. When an association has written policies and procedures regarding collections, it has a greater likelihood of success in its collections for a number of reasons. Among these reasons, written policies and procedures help ensure that the association’s collections are all pursued in the same manner. This cuts down on allegations of selective enforcement and/or preferential treatment. Also, written policies and procedures help in the smooth transition in management of the collections practices through board and management changes. Further, having set procedures helps owners understand the process and manage expectations as to what will happen if they do not keep up with timely payments. There are other reasons, but suffice it to say, it is a good idea to have these policies and procedures.

If yours is an association that already has these policies and procedures in place, note that several of the legislative changes will require these to be updated in a few ways.

DELIVERY OF STATEMENTS OF ACCOUNTS
The changes in the 2021 laws prescribes a new method of delivery of statements of account or invoices for assessments.

If an association sends out regular statements of account or invoices for assessments, this change affects how those statements of account or invoices for assessments are delivered to members. Please note that these changes do not REQUIRE an association to send invoices for assessments or statements of account. Further, unless the association’s documents provide otherwise (and they shouldn’t) sending out assessment “coupons” or billing statements is not a condition to collecting properly levied assessments.

If an association sends out invoices for assessments or a statement of the account, the invoice or statement must be sent by first-class U.S. mail or by email to the owner’s email address, as reflected in the association’s official records. This addition to the statute is of some concern because it does not clarify whether email may be used when the owner has not consented to receive other official notices by email. In an abundance of caution, if an owner has not previously consented to receive email notification, the invoice or statement should be sent via first-class U.S. mail.

Also, before an association can change the method of delivery for invoices for assessments or a statement of account, the association must deliver written notice of the change to each owner, at least 30 days before the association sends the invoice for assessments or statement of account by the new delivery method. The notice must be sent by first-class U.S. mail to the owner at the owner’s last address as reflected in the association’s records, and if the last address is not the property address, the notice must also be sent to the property address by first-class U.S. mail.

In addition, a unit owner must affirmatively acknowledge by email or in writing his or her understanding that that the association will change its method of delivery for the invoice for assessments or the statement of account before the association can change the method of delivery for that owner. The law offers no guidance on what to do if an owner fails or refuses to acknowledge.

30-DAY NOTICE OF DELINQUENCY
Another change in the laws requires the association to send a 30-day notice of delinquency prior to turning an account over to an attorney for collections.

The change requires associations to provide delinquent owners with a 30-day notice of delinquency prior to turning the account over to the association’s attorney for collections. Failure to provide the delinquent owner with this 30-day notice of delinquency will preclude the association from recovering its legal fees related to a past due assessment, i.e., any fees incurred in a collection/foreclosure action.

The 30-day notice must be sent via first-class U.S. mail to the owner’s last address as reflected in the association’s official records, and if the last address is not the property address, the notice must also be sent to the property address by first-class U.S. mail. The notice is deemed delivered upon mailing and a rebuttable presumption that the notice was mailed as required can be established by a sworn affidavit executed by a board member, officer or agent of the association, or by a licensed manager.

Subsection (5) also provides a form for the 30-day notice, titled “Notice of Late Assessment,” and requires the association to list the delinquent assessments, interest, and late fees that are owed.

CHANGE IN TIMEFRAMES FOR PRE-FORECLOSURE DEMAND LETTERS
Finally, there is a change to the timeframes that an association has to notify an owner of its intent to proceed with collections and foreclosure and the timeframes that an owner has to pay the amounts detailed in the pre-foreclosure demand letters sent by the association’s attorney. There are actually two changes that were enacted, one of which affects both condominium associations and cooperative associations and the other which only affects condominium associations.

One of the enacted changes increases the minimum timeframe for a condominium association or cooperative association to notify an owner of the association’s intent to record a claim of lien from 30 days to 45 days. This change provides the owner with an additional 15 days to remit payment for the amounts demanded in the notice of intent to lien letter. The Homeowners Association Act already required this 45 day timeframe.

The second change increased the timeframe for a condominium association to notify an owner of the association’s intent to foreclose it’s claim of lien from 30 days to 45 days. This change provides the owner with an additional 15 days to remit payment for the amount detailed in the notice of intent to foreclose letter.

These changes will require associations to make significant changes to their current collections policies and procedures, especially if the board has a written collection policy in place. Failure to do so could result in serious legal ramifications for the association if the new statutory requirements are not properly followed.

If your association does not currently have written collections policies and procedures, it may be a good time to work with your association attorney to draft these. While the statute sets out minimum notice and other timeframes, the associations may be more lenient and allow even more time.

However, you should keep in mind that the longer the association delays in starting the collection process, the longer it will take for the association to collect the funds necessary to operate the community. As with all things, balance is important and perhaps the simplest way to manage this is to stick to the timelines set out in the now more lenient statutes.

To read the original FLCAJ Magazine article, please click here.

Joy Mattingly is a Shareholder with Becker and the supervising attorney for the firm’s collection and foreclosure practice. She counsels condominium associations, homeowner’s associations and cooperatives on the development of comprehensive collections strategies, including collection and foreclosure actions, and regularly provides representation in mortgage foreclosure actions, surplus funds recovery and receiverships. To learn more about Joy, please click here.

“Electric Vehicles, Coming Soon to a Parking Area Near You!,” FLCAJ Magazine

With the all-electric Ford Mustang Mach-E currently arriving at car dealers, and the Ford F-150 Lightning arriving next spring, as well as Toyota, Nissan, GM, Audi, and so many others car makers already producing all-electric versions of their vehicles, it seems that what used to be considered a niche for adventurous Tesla explorers may become far more commonplace far sooner than many people thought. This is especially the case, given that the advertised MSRP for electric models of many of these vehicles appears to be comparable to their traditional gas-powered counterparts.

While the development in this new technology is exciting for many, it has also led to unexpected issues for some condominiums.

The 2021 amendments to the Florida Condominium Act made changes to the provisions that were adopted a few years ago regarding electric vehicle charging stations. The 2018 amendments to the Florida Condominium Act stated that declarations or restrictive covenants in condominiums could not prohibit any unit owner from installing an electric vehicle charging station within the boundaries of the unit owner’s limited common element parking space or the unit owner’s exclusive designated parking area. The statute set forth several parameters that needed to be followed in order for a unit owner to take advantage of the allowance. These included safety precautions, requirements that the unit owner bear associated costs, and similar issues.

The new changes to the Florida Condominium Act regarding electric vehicle charging station installation expands the unit owners’ rights further, by including in this section the installation of natural gas fuel stations. Like the prior allowance for electric vehicle charging stations, the new natural gas station allowance requires owners to use licensed and registered firms familiar with the installation or removal and core requirements of an electric vehicle charging station or a natural gas fuel station. Unit owners are also required to provide a certificate of insurance naming the association as an additional insured on the owner’s insurance policy for claims related to the installation, maintenance, or use of these, as well as reimbursing the association for increased association insurance costs resulting from any such installation.

As with most new community association laws, their consequential effects and other related issues they may raise take some time to crop up. When the laws on this topic were newly enacted, the idea that a great many owners would be interested in this installation did not seem likely. However, even in buildings where there was not a huge interest in the issue, concerns arose particularly with the older buildings. These buildings had electrical systems that were several decades old. Concerns regarding overloading the system, interference with the electrical system, and/or lack of capacity were not really addressed in the statute. Thus, associations were left wondering how to handle “too many” requests for installation of personal charging stations, if the statute required the association to allow their installation.

Unfortunately, this issue was not really addressed in the 2021 revisions either. Finding an equitable way to manage the potential issues can be difficult. For example, suppose a condominium’s electrical systems are capable of adding X number of charging stations without incident. Then suppose one more installation would require a significant upgrade to the electrical system. If the requesting owner is responsible for all associated costs, should the next owner seeking to install a station bear all of the cost of the upgrade? What if he/she is the only person that wants this additional station? The statute does not answer this question or how best to handle it.

Fortunately, the idea of community charging stations has also become a little more popular. These community charging stations are typically installed in non-assigned spaces or parking areas by a third party on behalf of the association for use by any person in the parking area. The vehicle owners charging their vehicles at these charging stations usually pay the third-party provider for the use of the station using a credit card or a smart card or similar format.

Of course, because these community charging stations would be installed in the common element parking areas, where no such thing existed before, these installations raised questions of material alterations and whether the approval of the unit owners was required for such an installation, whether the association had the authority to participate in the “selling” of the charge/electricity, and other related issues.

The 2021 amendments did address this point. The statute now expressly clarifies that the board of directors may install or operate an electric vehicle charging station or a natural gas fuel station on the common elements or association property, it may establish the charges or the manner of payments for the users, and that such installation would not constitute a material alteration or substantial addition to the common elements or association property.

While this is helpful, there are remaining issues, of course. The installation of a community charging station would not allow the association to prohibit personal charging station installations upon request by a unit owner, so the potential issue regarding overloaded electrical system persists. Also, associations still need to determine how to handle a fair opportunity of use of these stations by owners and how to enforce any rules and regulations they may adopt to do so, whether to involve valet services with this, how and where to best install these stations to avoid collisions or traffic obstructions, and a whole host of other issues.

In the end, the legal development in these areas is encouraging in that the legislature is aware of and taking steps to address existing and future needs of unit owners relating to this new technology that is likely to become more and more popular. However, boards of directors and managers will still need to give much thought to how best to begin implementing changes to meet the needs of their individual communities. This might involve a survey of the building to gauge interest, followed by a discussion with an electrical engineer to assess capacity and options, ending with a meeting with the community’s attorney to discuss the proper procedures needed to protect the unit owners, the association, and the residents.

To read the original FLCAJ Magazine article, please click here.

Lilliana Farinas-Sabogal is a Board Certified Specialist in Condominium and Planned Development Law and a shareholder in Becker’s Community Association and Business Litigation practice groups. In addition to her experience assisting community associations with day-to-day management and operation of governing their communities, she advises Boards of Directors, unit owners, and community association managers on how best to resolve their contractual and transactional disputes and issues. To learn more about Lilliana, please click here.

Becker’s Washington Weekly: October 11, 2021

THE ADMINISTRATION

President Biden faces compounding challenges with the embattled infrastructure deal, the ongoing pandemic, and record-low approval numbers – all of which threaten Democrats’ already slim majorities in Congress.

The United States and the Taliban had their first formal meeting last weekend following the U.S. withdrawal from Afghanistan. The two sides met in Doha, Qatar and discussed the need to ensure safe passage for remaining U.S. citizens, Afghan partners, and foreign nationals. U.S. representatives also emphasized the importance of humanitarian aid and ensuring women and girls can meaningfully participate in Afghan society.

Last week, U.S. Trade Representative Katherine Tai and Chinese Vice Premier Liu He discussed U.S.-China trade relations. The sides agreed they would consult each other on “certain outstanding issues,” while Representative Tai “emphasized U.S. concerns relating to China’s state-led, non-market policies and practices that harm American workers, farmers and businesses.”

Additionally, 136 nations joined in a global minimum tax deal which sets a 15% minimum rate for large companies while curbing tax avoidance. Treasury Secretary Janet Yellen hopes that Congress will approve legislation to implement the deal. Some experts say the deal could be codified via legislation or budget reconciliation while Senate Republicans insist it must be ratified like a treaty, which requires a 2/3 Senate majority.

THE SENATE

The Senate is in recess this week.

Last week, the Senate voted to extend the debt limit through December 3rd, avoiding an all-but-certain economic crisis that would have caused the U.S. to default on its debts. The vote passed after Senate Minority Leader Mitch McConnell (R-KY) vacated his earlier statement that Republicans would not support raising the limit. Although 10 Republicans voted to raise the limit on a limited basis, Leader McConnell insists that Democrats must go it alone in finding a long-term solution to the debt ceiling after December 3rd.

THE HOUSE

This week, the House will host numerous hearings, including:

  • The Financial Services Committee to discuss artificial intelligence.
  • The Committee on Science, Space, and Technology on ensuring America’s weather-readiness.
  • The Natural Resources Committee to discuss the impacts of abandoned offshore oil and gas infrastructure.

Becker’s Federal Lobbying Team will continue to monitor these developments as they evolve and will share with you as soon as information becomes available.

Becker’s Legacy Speaker Series Launches with Challenge to Serve from Minnesota AG Keith Ellison

Becker & Poliakoff, in partnership with the University of Miami School of Law, recently welcomed Minnesota Attorney General Keith Ellison as the inaugural keynote speaker of the first Alan S. Becker and Gary A. Poliakoff Preeminent Leaders in Law Speaker Series. The educational forum, established in honor of the firm’s founding members (Becker, J.D. ’69, and Poliakoff, J.D. ’69), strives to connect those seeking to understand the complexities of the law with legal practitioners who have real world experience applying the law in a variety of contexts.

“A lawyer is either a social engineer or a parasite on society,” Ellison said in his remarks at the event. “You are either helping things get better or you’re not. Whether you are in private practice or corporate practice, a corporate counsel, public lawyer, public defender, or prosecutor, we all can advance this cause of justice, and we all have a responsibility to do so.”

Becker’s Managing Shareholder Gary Rosen facilitated a ‘fireside chat’ with AG Ellison that emphasized the importance of having a heart of service, resisting the allure of the spotlight to truly focus on justice, going to trial for solutions not for the love of the fight, nuts and bolts of staffing the George Floyd trial, and avoiding group think.

The two trial lawyers enjoyed a frank tradesman talk about his work in the State of Minnesota v. Derek Michael Chauvin case, where AG Ellison believes that, by prosecuting the murder of George Floyd, his office ‘polished the badge Chauvin had tarnished.” AG Ellison also praised prosecution team members “the world doesn’t know…yet” who were determined to move the historic case forward, candidly discussed what he thought should have been handled differently, and explained why he believes the verdict was more about accountability than justice.

“The candor with which AG Ellison spoke was exactly the type of conversation Alan and Gary encouraged in the firm,” said Rosen. “I am proud that the spirit of these two leaders was kept top of mind and look forward to many more conversations with remarkable leaders in our field such as AG Keith Ellison.”

To watch the replay of the inaugural event, please click here.

To read the University of Miami’s recap, please click here.

To learn more about the Alan S. Becker and Gary A. Poliakoff Preeminent Leaders in Law Speaker Series, please click here.

“Community Associations Affected by the 2021 Legislative Session Part IX,” News-Press

This week continues our review of the 2021 legislative changes affecting Florida community associations. Today we will cover Senate Bill 1966, which addresses budget procedures for condominium and cooperative associations, as well as two other bills of interest. These laws took effect July 1, 2021.

Section 718.112(d)2 of the Condominium Act has been amended to state that a person who is “delinquent” in the payment of any “assessment” is not eligible to be a candidate for the board. The previous version of the statute stated that a person who was delinquent in the payment of “any monetary obligation” to the association was ineligible. For example, someone who had not paid a fine could not run for the board under the previous statute, under the new law only assessment delinquencies can be used as the basis for disqualification.

This amendment also states that a person is “delinquent” if an assessment payment is not made by the due date set forth in the condominium documents. If a due date is not set in the condominium documents, the due date is the first day of the assessment period (month or quarter).

Section 718.112(f)1 of the Condominium Act was amended to require the board to adopt the annual budget at least 14 days prior to the start of the association’s fiscal year. Failure to comply can be the basis for a fine or other sanction from the state’s condominium regulatory agency. The same changes were made to Section 719.106(1)(j)1 of the Cooperative Act.

House Bill 649 deals with association petitions objecting to property tax assessments. Section 194.011(3)(e) of the Florida Statutes was amended to create specific notice requirements regarding petitions to a value adjustment board. Condominium or cooperative associations can appeal the decision and can defend an appeal taken by the property appraiser. This Bill also deals with other technical procedures and was enacted in response to a decision from a Florida appeals courts which had interpreted the statute to limit an association’s authority in this area.

Senate Bill 602 amended Chapter 617 of the Florida Statutes, the Florida Not for Profit Corporation Act. The most important change was an amendment to Section 617.0725. That law states that whenever articles of incorporation or bylaws require a vote to take an action, that provision can only be amended by the vote required to take the action, and not the vote required to amend the document. For example, if an association’s articles of incorporation state that a vote of 75 percent of all owners is required to permit the board of directors to borrow money, but the articles say they can be amended by a 67 percent vote, what is the vote required to amend the borrowing provision?

Under the previous law, there was substantial uncertainty and disagreement amongst lawyers as to the correct answer. Some argued the housing statutes control, some argued that the corporate statute control. This debate was laid to rest by this amendment, and the new provision of the corporate statute specifically exempts associations. Therefore, using our hypothetical example, the borrowing clause could be amended by a 67 percent vote.

This Bill also included a provision that removed associations from the provisions of the corporate statutes regarding committees, which had become rather complex and cumbersome. Finally, in a change that may do more harm than good, the corporate statute was amended to state that it does not apply to any issue which is “provided for” in the housing statute, whereas the previous version of the statute said the corporate law was inapplicable in the event of a “conflict.”

Next week we will continue our annual legislative review with a look at some new laws aimed at COVID liability, and their impact on community associations.

Joseph Adams is a Board Certified Specialist in Condominium and Planned Development Law, and an Office Managing Shareholder with Becker & Poliakoff. Please send your community association legal questions to jadams@beckerlawyers.com. Past editions of the Q&A may be viewed at floridacondohoalawblog.com.

Becker Succeeds In Defeating Proposed Tampa Rezoning at 200 S. Hoover Blvd.

September 28, 2021, Ft. Lauderdale, FL — Becker, a multi-practice commercial law firm with attorneys, lobbyists, and other professionals at offices throughout the East Coast, announced that it succeeded in defeating a proposed rezoning at 200 South Hoover Boulevard in Tampa.

Becker represented Save Beach Park LLC (“SBP”), an organization with several hundred Beach Park residents and lead an organized opposition to a proposed rezoning at 200 S. Hoover Boulevard.

After months of delays and changes in developer entities, and with claims it may increase the density of the proposed project, the developer Pebb Capital withdrew its rezoning application (REZ-21-43) just before the continued First Reading hearing before City Council on September 23, 2021, in the face of well-researched neighborhood opposition.

SBP submitted expert reports to the City supporting its position that the proposed project was not compliant with the City’s Land Development Code and inconsistent with the City’s Comprehensive Plan. Through these expert reports, along with more than 150 opposition letters and over 500 petition signatures from area residents, SBP was prepared to demonstrate the inadequacy of the developer’s submittals.

SBP, through Becker and its experts, argued that the development, if approved, would fundamentally change the character of the neighborhood by rezoning the 200 S. Hoover Boulevard property to permit a gigantic 392-unit multi-family development. Becker also maintained that the proposed development would overburden the surrounding road network and public school system, and was incompatible with the character, height, density, and massing of the established surrounding neighborhood’s height.

Further, the proposed rezoning would have placed more population in the Coastal High Hazard Area, slowing evacuation times in the event of a storm, and estimated to result in surrounding home value loss of between five and ten million dollars.

The Beach Park neighborhood of Tampa has recognized extraordinary expansion over the past several years: 1,765 apartments have been approved at Westshore and between 259-500+ units have been approved at Bay Center with many more in the pipeline. Coupled with the immense Georgetown development just south of Beach Park, the neighborhood, with only 2-lane roads for ingress and egress, is getting hemmed in by massive development to the north, south, and west.

“This result is due to teamwork, coordinated opposition, and unprecedented galvanization of our neighborhood, coupled with the developer’s refusal to address to the neighborhood’s concerns at all. Of course, there is a need for increased housing due to Tampa’s explosive growth; however, the burden of increased traffic, school overcrowding, and safety as a Coastal High Hazard Area must be a factor in balancing equitably where these projects are approved to be built. This development presented many adverse impacts to our neighborhood, including to our property values, which ultimately compelled the developer to withdraw its rezoning request,” said Scott Jackman, a member of SBP.

SBP’s opposition effort was led by Becker shareholders Michael Boutzoukas and Katie Berkey, AICP. Other key players involved in defeating the proposed rezoning included: Todd Pressman, Pressman & Associates (lobbyist); Susan Swift, AICP (Colliers Engineering & Design); Matt Simmons (Maxwell, Hendry & Simmons, LLC); Drew Roark, PE, CTL (Roark Engineering); Shaun Luttrell, AIA (Luttrell Architecture); and Michael Antinelli, PE, CFM (Brizaga).

ABOUT BECKER
Becker, with headquarters in Fort Lauderdale, Fla., is a multi-practice commercial law firm with attorneys, lobbyists, and other professionals at offices throughout the East Coast. More information is available at beckerlawyers.com.