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Becker’s New Jersey Community Association Practice Continues to Grow With Addition of Senior Attorney Ellen Goodman

February 26, 2020 — Morristown, New Jersey – Becker, a multi-practice commercial law firm with attorneys, lobbyists and other professionals at offices throughout the East Coast, is pleased to announce that Ellen Goodman has joined the firm as a Senior Attorney in its Community Association practice based in New Jersey.

Becker’s New Jersey Office Managing Shareholder Arnold Calabrese said, “We are thrilled to welcome Ellen Goodman to the team as we continue to grow our presence in New York and New Jersey. We know that our clients will benefit tremendously from her wealth of experience.”

Ms. Goodman represents condominium associations, homeowner associations, and cooperatives in all of their legal matters. She represents clients in the aggressive pursuit of delinquent assessments, interpretation and drafting of master deed and by-law provisions, promulgation and enforcement of association rules and regulations and policy resolutions, transition from developer to unit owner contract, construction defect litigation, as well as negotiation and preparation of routine vendor agreements and large-scale renovation contracts.

Ms. Goodman also has tried many cases with favorable outcomes for her clients regarding both the collection of assessments as well as negligence actions. Ms. Goodman, specifically, issues demand letters, files foreclosure complaints, obtains money judgments, and provides representation on bankruptcy matters as well as engages in alternative dispute resolution.

Becker’s New York and New Jersey presence has seen continued growth over the past year with the arrival of Community Association Shareholder Tana Bucca and attorney Michael Calabrese in the firm’s New Jersey office. Additionally, in New York, Financial Services Shareholder Paul Shur, Corporate Of Counsel attorney Howard Jiang, and Litigation and Corporate attorney Samantha Lesser joined the Firm.

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 www.beckerlawyers.com.

Becker’s Washington Weekly: Week of February 25, 2020

THE HOUSE

The House is officially back in session this evening. However, all recorded votes will be delayed until Wednesday at the earliest as many members are in South Carolina this evening for the Democratic debate. Once the majority of House members are back in Washington, there are a number of critical committee hearings this week, which include:

  • On Wednesday, the Ways and Means Committee is expected to hold a hearing on U.S.-China trade and competition
  • On Wednesday, the Small Business Committee is expected to hold a hearing titled, “A Discussion with SBA Administrator Jovita Carranza: Current Issues and the FY2021 Budget”
  • On Thursday, the Contracting and Infrastructure Subcommittee of the Small Business Committee is expected to hold a hearing titled, “Moving America’s Infrastructure Forward”
  • On Thursday, the Military Construction, Veterans Affairs, and Related Agencies Subcommittee of the Committee on Appropriations is expected to hold a hearing titled, “Oversight of the VA’s Electronic Health Record Modernization Implementation”

THE SENATE

The Senate officially returned to session on Monday. After spending much of this Congress concentrating mainly on confirming judicial appointments, Majority Leader Mitch McConnell (R-KY) will direct the Senate back towards the legislative arena as the Senate is expected to consider two polarizing anti-abortion measures this week. One bill that is expected to be considered bans all abortions after 20 weeks while the other is the “Born-Alive Abortion Survivors Protection Act.”

The Senate also has a number of relevant hearings on the docket for this week, including:

  • On Monday, the Security Subcommittee of the Commerce, Science, and Transportation Committee held a hearing on oversight of air cargo security.
  • On Tuesday, the Banking, Housing, and Urban Affairs Committee held a hearing titled, “Surface Transportation Reauthorization: Public Transportation Stakeholders’ Perspectives”
  • On Tuesday and Wednesday, the Senate Veterans Affairs Committee is expected to host their counterparts from the House for two hearings comprised of legislative presentations by multiple veterans’ service organizations.

THE ADMINISTRATION

Late Monday evening, the Trump Administration submitted its request to Congress for $2.5 billion as part of a supplemental budget request to combat the spread of the Coronavirus.

President Trump began his week in India. On Monday, following a visit to the Taj Mahal with First Lady Melania Trump, the president delivered remarks at a rally alongside Indian Prime Minister Narendra Modi at Motera Stadium in Ahmedabad, India. On Tuesday, the president took in the sights of New Delhi with Prime Minister Modi, participated in a business roundtable at the residence of the American Ambassador, and made a courtesy call to Indian President Nath Kovind before departing India.

On Friday, the president is expected to attend a fundraiser for Senator Lindsey Graham (R-SC) in South Carolina before delivering remarks at a campaign rally in North Charleston.

 

Brought to you by the Federal Lobbying Team at Becker & Poliakoff

Police Vehicles, Vacation Rentals and Emotional Support Animals

With only three weeks left in the 2020 Florida Legislative Session, your CALL Team has been busy. Last Friday, Governor DeSantis signed SB 476 (sponsored by Senator Ed Hooper) into law. This bill prohibits condominium, cooperative, and homeowners’ associations from enforcing restrictions against police vehicles being parked inside their communities. This prohibition would apply regardless if the police vehicle is driven by an owner, a tenant, or a guest of an owner. Senator Hooper sponsored the bill after a Clearwater police officer was fined last summer for parking her police car in her driveway in an HOA. There have always been two schools of thought on the issue of police vehicles being parked in plain sight in private residential communities. Some people feel that a marked vehicle makes the community safer while others believe it is an eyesore or that the vehicle’s presence indicates that there is a “criminal incident occurring”.

Legislative Update: Week 6 (February 17-21)

Headlines

Abortion: This week, after two days of grueling and heated debate, parental consent for minors’ abortions was voted to become law by the Florida House. SB 404 by Senator Kelli Stargel is now headed to Governor DeSantis’ desk for review and signature. Florida law currently requires that parents or guardians are notified if a minor gets an abortion, however, minors can also obtain a judicial waiver to bypass that requirement. This new legislation, effective July 1, 2020, will require both parental consent and notification if a minor gets an abortion. The judicial waiver requirement remains in effect. The House members passed the legislation in a 75-43 vote split amongst party lines.

Amendment 4 Unconstitutional: This week a federal appeals court ruled that it was unconstitutional to force Florida felons to first pay off their financial obligations before registering to vote. This requirement was decided last year by the Republican led legislature who instituted a poll tax and stripped the voting rights of convicted felons due to this financial obligation requirement. The three-judge panel of the 11th Circuit Court of Appeals agreed with Amendment 4 proponents, backing the more than 65% of Floridians who voted in 2018 for re-enfranchisement. Unfortunately, Amendment 4 being upheld won’t automatically make voting easier for returning citizens, however, it is a start to restoration of their rights.

Vacation Rentals: This week HB 1011 by Representative Jason Fischer passed favorably in the Commerce Committee in a 14-9 vote. Vacation rental platforms such as Airbnb, HomeAway, etc., must now collect and remit taxes on vacation rental properties, ensure that only properly licensed rentals are advertised, and provide the state with specific information about the rentals. Regulation is now preempted to the state, largely preventing local governments from regulating vacation rentals. Local governments could only regulate the rentals in the same way as other properties in neighborhoods, a restriction that cities and counties strenuously oppose. Many feel that a requirement like this is best left up to local officials and not up to the state. The Senate companion, SB 1128 by Senator Manny Diaz, is now in Rules waiting to be heard.

Occupational Licensing: This week HB 3 by Representative Michael Grant passed favorably on the House floor in a 78-40 vote. This legislation would preempt local governments from requiring occupational licenses that are not mandated by the state. It would bring “uniformity” to a broad range of trade classes including, “flooring, cabinetry, painting, interior, remodeling, driveway or tennis court installation, decorative stone, tile, marble, granite, or terrazzo installation, plastering stuccoing, caulking, canvas awning, installation, and ornamental iron installation.” The Senate companion, SB 1336 by Senator Keith Perry, was temporarily postponed in its second committee of reference, Innovation, Industry, and Technology.

Tallahassee Updates

Contamination: This week SB 1350 by Senator Dennis Baxley passed favorably in its second committee stop, Judiciary, in a unanimous vote. There is a companion bill in the House, HB 609, by Representative Daniel Perez. This legislation provides changes to Florida’s brownfield program which include but is not limited to: providing sales tax exemptions for building materials for construction projects abutting designated brownfield areas that set aside certain portions of the project for affordable housing; revising a corporate income tax credit for 25% of the total rehabilitation costs for a brownfield site, not to exceed $500,000, for projects that include residential portions, if the developer agrees to set aside at last 20% of the housing units for affordable housing, etc.

A brownfield is a property of which the expansion, redevelopment, or reuse may be complicated by the presence or potential presence of a hazardous substance, pollutant, or contaminant. Unsafe levels of environmental contamination on a brownfield may result from past or current industrial, commercial, residential, agricultural, or recreational uses and practices. Contaminants may be found in soil, water or air. A committee substitute was filed by the Environment and Natural Resources Committee removing the expanded application of the sales tax exemption and the corporate income tax exemption for building materials for construction as it relates to affordable housing. SB 1350 has one more committee stop, Appropriations, before reaching the Senate floor.

Special Neighborhood Improvement Districts: This week HB 1009 by Representative Wengay Newton passed favorably on the House floor in a 113-0 vote. Neighborhood Improvement Districts (NIDs) are authorized under the Safe Neighborhoods Act of 1987 to address deteriorating business and residential neighborhoods and help revitalize them. By definition, a NID must use more than 75% of the land within its boundaries for either residential purposes or commercial, office, business, or industrial proposes, excluding land used for public facilities. This bill increases the number of members that can serve on special NID boards to allow three, five, or seven members and increases board member terms to four-year staggered terms. The bill requires members to be landowners in the proposed area who are subject to ad valorem taxation. The bill also requires counties or municipalities to specify the number of members in the ordinance creating the NID. The next stop for this legislation is to be heard on the Senate floor for a vote. If the Senate vote is favorable, the next stop for this legislation is the Governor’s desk.

There is a companion bill, SB 1424, by Senator Joe Gruters, that passed favorably in the Innovation, Industry, and Technology Committee, in a 9-0 vote. SB 1424 has one more committee stop, Rules, before reaching the Senate floor.

Dissolution of Municipalities: This week HB 1209 by Representative Jason Fischer passed favorably in the Ways & Means Committee in a 15-1 vote. A municipality may be dissolved subject to a special act of the legislature or an ordinance passed by the governing body of the municipality approved by the voters at a referendum. This bill would require any municipality that meets one or more specified criteria to hold a referendum on municipal dissolution. Those criteria include but are not limited to:

  • The municipality was determined to be in a state of financial emergency subsequent to June 17, 2004 and has been in a state of financial emergency for two or more years.
  • The municipality has failed to comply with the terms of any signed agreement with the Governor’s office as part of a financial emergency where a financial emergency board has been established.

This bill has one more committee stop, State Affairs, before reaching the House floor. There is a Senate Companion, SB 1522 by Senator Doug Bronson, that is referred to three committees, however, said bill has not been heard.

Housing: This week SB 998 by Senator Travis Hutson passed favorably in the Infrastructure and Security Committee in a 7-0 vote. This bill addresses several housing issues related to development zoning and impact fees; the provision of affordable housing; and taxation, regulation, ownership, and tenancy related to mobile homes and mobile home parks. With respect to zoning, impact fees, and affordable housing, the bill includes but is not limited to:

  • Notwithstanding other laws and regulations, authorizes local governments to approve the development of affordable housing on any parcel zoned for residential, commercial, or industrial use;
  • Provides that local governments may adopt an ordinance to allow accessory dwelling units (ADUs) in any area zoned for single-family residential use;

With respect to housing issues related to mobile homes, this bill includes but is not limited to:

  • Mobile home buyers will have the option to receive the seller’s prospectus or a new prospectus;
  • Requires mobile homeowners to receive written permission from park owner before exterior modifications or additions

There is a companion bill, HB 1339 by Representative Clay Yarborough, that passed favorably in the House Ways and Means Committee with a unanimous vote. This bill has one more committee stop, Commerce, before reaching the House floor. Senator Hutson’s bill is now in its last committee stop, Appropriations, before reaching the Senate floor.

“Tenants Can Claim Support Animal Rights,” News-Press

Q: Our condominium documents do not permit renters to have pets. A new short-term renter in my building has a dog. When I asked the management company, I was shown a certificate for an “emotional support animal” that can be purchased online.  It is my understanding that “emotional support animals” can only break a “no pet rule” at one’s permanent place of residence. Is that true? (K.T., via e-mail)

Legislative Update: Week 5 (February 10-14)

Below you will find a summary of legislation that moved during week five of Session. Each issue discussed has the potential to impact your municipality and organization. In the weeks ahead, we will continue to monitor these bills and others while advocating on your behalf.

Ready to Sign: This week, Governor Ron DeSantis received four bills from the legislature for review and signature. SB 594, 596, 598, and 600 by Senator Lizbeth Benacquisto are bills to adopt the Florida Statutes 2020 by amending, creating, or repealing certain sections of the Florida Statutes. The bills also revise the Statutes by deleting expired or obsolete language, correct-cross references, and remove inconsistencies within the Statutes. Governor DeSantis has until February 17, 2020 to act on these bills.

Remembering Parkland: The Governor ordered flags to fly half-staff Friday, February 14, in respect of the victims of the shooting at Marjory Stoneman Douglas High School in Parkland in 2018. A moment of silence was held in both Chambers to acknowledge the victims’ families, survivors, and others in the community that continue to mourn this devastating loss.

Appropriations: This week, the House and Senate passed their budgets with unanimous votes, sending the legislature to debate over key disparities in their $91 billion-plus spending plans. There is a difference of $1.4 billion with the House and Senate budget with some of those key differences being: the Senate is fully funding the Sadowski Affordable Housing Trust Fund with $387 million and $52.5 million for VISIT FLORIDA the House diverges on these two positions, offering $144 million and zero dollars respectively.

In addition, teacher pay, is also discussion that both the House and Senate need to have in order to meet Gov. Ron DeSantis’ ask of raising starting teacher pay to $47,500. Both Chambers agree to raise teacher salary but their formulas for reaching that $47,500 do not coincide.

School Board Term Limits: This week, SB 1216 by Senator Joe Gruters passed favorably in the Education Committee in a 5-3 vote. There is a companion bill in the House, HB 157 by Representative Anthony Sabatini and Representative Matt Willhite, that also passed favorably in its final committee before heading to the floor in an 11-4 vote. This joint resolution proposes that Florida district school board members be subject to an eight-year consecutive service term limitation. The language mirrors the current “eight is enough” term limit that applies to Cabinet members and legislators. The joint resolution, if passed by a 3/5ths vote of each House of the Legislature, will be voted on at the general election in November 2020, unless the legislature authorizes an earlier special election for that specific purpose. The likely earliest date that any currently serving school board member could be “termed out” would be in November 2028.

E-Verify: Governor Ron DeSantis has indicated that E-Verify is one of his top priorities for the 2020 Legislative Session. Various pieces of legislation have been presented on both the House and Senate however, they have been slow to move. SB 664 by Senator Tom Lee would mandate all public and private employers use E-Verify, a federal program that checks the legal eligibility of new workers. Senator Simmons, Chair of the Senate Judiciary, proposed an amendment that would exclude farmers and agricultural employers. House Speaker Jose Olivia has expressed his concerns regarding the legislation in how it would treat individual companies differently from others. Both Chambers understand the importance of this legislation as it is the Governor’s priority and they are working to come to some common ground for passage.

Safety at Pedestrian Crosswalks: This week, the House passed unanimously in the Transportation & Tourism Appropriations Subcommittee HB 1371 Traffic and Pedestrian Safety by Representative Randy Fine and Representative Mike Caruso in a 11-0 vote. This legislation would require pedestrian crosswalks on public highways, streets, or roads that are located at any point other than an intersection to be controlled by traffic signal devices. It also states that these pedestrian control signals must meet specified requirements. Crosswalks will swap out the flashing yellow lights with red lights to help signal that vehicles should come to a complete stop. The Senate companion, SB 1000 by Senator Keith Perry is scheduled to be heard in its second committee on February 18th.

Common Core Eradicated: This week, Governor Ron DeSantis announced that the Common Core curriculum would be officially removed from Florida classrooms as the State Board of Education formally adopted new standards known as the Benchmarks to Excellent Student Thinking, or BEST. Under the new standards, Florida will become the first state to require civics education in all grades and short standardized tests. BEST will offer every high school junior an opportunity to take the SAT or ACT paid for by the state until at least 2022. The standards for BEST were created by Florida teachers for Florida Students.

“Limit on Charging Transfer Fees? ,” Naples Daily News

Q: My condominium association imposes strict limitations on the rental of units.  The condominium documents include a requirement for the board to review and approve all proposed leases and tenants.  The condominium documents also permit the association to charge a fee up to the highest amount the law allows to cover the cost of the background check and other expenses. 

The board is aware of the statute that limits any transfer fee charged to a maximum of $100. Previously, this was not of consequence. However, the new management company charges an administrative processing fee for its assistance in administering the review of the lease application. Consequently, the board has been forced to pay these additional costs out of the general funds. Is it possible to impose another charge in the nature of a general fee, processing fee, etc. to cover this additional expense?  R.H.

A: No.  Section 718.112(2)(i), Florida Statutes, confirms that no charge shall be made by a condominium association in connection with the sale, mortgage, lease, sublease, or other transfer of a unit unless the association is required to approve such transfer and a fee for such approval is provided for in the declaration, articles, or bylaws. Any such fee may be preset, but in no event may such fee exceed $100 per applicant other than husband/wife or parent/dependent child, which are considered one applicant. The statute further states that if the lease or sublease is a renewal of a lease or sublease with the same lessee or sublessee, no charge shall be made.

Since the condominium documents permit your association to charge a transfer fee, the association may do so.  But the association is not permitted to charge the applicant more than the $100 (per applicant) statutory cap.  If the association’s contract with the management company requires the association to pay the additional administrative fee you reference, the association will be required to make this payment, but the association cannot require the applicant to pay more than the statutory cap amount referenced in the statute.

Q: Five of the seven board members at my condominium association are related to each other.  Is this legal?  M.P.  

A: It depends.  Section 718.112(2)(d)(2), Florida Statutes, states that in a residential condominium association of more than 10 units, or in a residential condominium association that does not include timeshare units or timeshare interests, co-owners of a unit may not serve as members of the board of directors at the same time unless they own more than one unit or unless there are not enough eligible candidates to fill the vacancies on the board at the time of the vacancy.  This means that simply being related to other directors is not, in and of itself, prohibited. As an example, if each of the related directors you reference owns their own unit (and their family member who also serves on the board is not a co-owner of the subject unit), then there is no statutory prohibition on all five of these related directors serving on the board at the same time.

Q: Does the condominium act supersede the restrictions contained in the condominium documents?  S.K.  

A: This is a complex question and one that depends on which provision from the condominium act is being referenced.  On some issues, such as insurance (see Section 718.111(11), Florida Statutes), the intention of the statute is to apply the respective requirements and obligations upon every residential condominium association in the state, which means that the requirements of this statute will supersede any conflicting language contained within the condominium documents.  On other issues, such as the authority required to approve a material alteration to the common elements (see Section 718.113(2)(a), Florida Statutes), the statute requires the approval of 75% of the unit owners if the declaration is silent but this statute also gives deference to any applicable material alteration voting threshold contained in the declaration.  This means that if the declaration specifically addresses material alterations the association must follow the applicable voting threshold contained in the declaration.  The answer to this question will also depend on other factors, such as when the condominium documents were recorded and whether the condominium documents incorporate future changes to the condominium act.

Attorney David G. Muller is a shareholder with the law firm of Becker & Poliakoff, P.A., Naples (www.beckerlawyers.com). The information provided herein is for informational purposes only and should not be construed as legal advice. The publication of this column does not create an attorney-client relationship between the reader and Becker & Poliakoff, P.A. or any of our attorneys. Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have questions about any of the issues raised herein. The hiring of an attorney is a decision that should not be based solely on advertisements or this column.

This article originally appeared in the Naples Daily News.

Don’t Hesitate: Update Community Association Liens Now and at the Beginning of Each Fiscal Year

This year community associations of all types saw a significant change to the law that applies to their right to secure payment for outstanding assessments through the filing of liens.  Previously, only condominium associations had a priority lien against other lien holders for only six months of assessments prior to the recording of their lien.  This new law, contained in a package of foreclosure bills signed by Governor Murphy on April 29, 2019, applies to both condominium and homeowner associations and increases the priority lien available now to both condominium and homeowner associations from only six months of assessment priority to up to 30 months of assessment priority.  This means that despite a foreclosure by a lender, the condo association or HOA can receive up to 30 months of assessments out of the lender’s foreclosure.  This is a tremendous improvement for both condominiums, who were limited to only six months priority previously, and more impactful to homeowner associations, who had no statutory priority prior to this new law.  However, to take advantage of this increase in assessment priority, an association must file liens annually, because the law only allows for six months of assessment priority for every year that an association has a recorded lien, for up to five years.  As a result, associations must annually update their liens to maximize the priority of their liens over other lien holders.  The increase in the lien priority will make a significant difference and improve an association’s collection efforts going forward.

CALL Alert: SB 802/HB 733 MRTA & Housing Discrimination

One of the most important and valuable aspects of a property owner’s rights is the ability to market and sell their property, and to do so free from the fear of “hidden” or outdated restrictions or claims which may have previously burdened their property. But, what to do when a person raises a claim of a 50-year old unrecorded and unused easement agreement between neighbors entered into by a “gentleman’s handshake”?  Or, what about the long lost great-grandnephew who arrives home from sea with an unrecorded quit claim deed to the property executed and delivered to him personally by his deceased beloved aunt 40 years earlier?