Monthly Archives: August 2014
Debt Collection in Florida: Know the Rules
By: James O. Birr, III, Esq. and Sterling Spencer
When it comes to collecting a consumer debt, individuals, businesses and attorneys’ must be familiar with the Florida Consumer Collection Practices Act (“FCCPA”) and its federal counterpart, the Fair Debt Collection Practices Act (“FDCPA”). Like the FDCPA, the FCCPA protects consumers from abusive, harassing, and unfair debt collection practices. This post addresses Florida federal court case law as to damages for violations of the FDCPA and FCCPA, as well as recent changes to the FCCPA, effective October 1, 2014. Read Full Post
The Differences Between Homeowners Association and Condominium Association Law in Florida – Part II: Records Inspections and Alterations to Property
By: Charles B. Jimerson, Esq.
Our previous post, the first of a three part series, discussed the differences between homeowners association and condominium association law in Florida pertaining to basic board operations. This post, the second of a three part series, discussed the differences between homeowners association and condominium association law in Florida pertaining to records inspections and alterations to property.
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The Differences Between Homeowners Association and Condominium Association Law in Florida – Part I: Board Operations
Under Florida’s association laws, each type of community association differs from each other type of community association primarily in the manner in which each association and the association’s members own real property within the community. For example, with Condominiums, a … Read Full Post
Purchaser of Property at Tax Sale is Not Liable to Condo Associations & HOAs for Unpaid Assessments
By: Hans C. Wahl, Esq.
Florida’s Fourth District Court of Appeal issued an opinion in March of 2014 concerning properties governed by an association that are sold at a tax sale. The court, in A to Z Properties, Inc. v. Fairway Palms II Condo. Ass’n, Inc., held that when property with unpaid association assessments is purchased at a tax sale, the purchaser is not liable to the association for those unpaid assessments. No. 4D13-1267 (Fla. 4th DCA 2014). The court’s reasoning is that an assessment lien is extinguished by the issuance of a tax deed. Id. This post will analyze that case, including the ramifications that decision has on Florida’s community associations and what associations can do to avoid finding themselves on the wrong end of this situation. Read Full Post
Florida Declarations of Condominium: Required Provisions
By: Charles B. Jimerson, Esq.
A condominium is created by recording a declaration in the public records of the county where the land is located, executed and acknowledged with the requirements for a deed. Fla. Stat. § 718.104 (2). All persons who have record title to the interest in the land being submitted to condominium ownership, or their lawfully authorized agents, must join in the execution of the declaration. Id. Upon the recording of the declaration, or an amendment adding a phase to the condominium under section 718.403(6), all units described in the declaration or phase amendment as being located in or on the land then being submitted to condominium ownership shall come into existence, regardless of the state of completion of planned improvements in which the units may be located or any other requirement or description that a declaration may provide. Id. Upon recording the declaration of condominium pursuant to this section, the developer is required to file the recording information with the division within 120 calendar days on a form prescribed by the division. Id. Read Full Post
Defining and Maintaining Condominium Common Elements in Florida
By: Charles B. Jimerson, Esq.
Any classification of the condominium begins with the declaration of condominium, which sets forth the boundaries of an individual’s unit. In addition, an owner owns an undivided share of the common elements, i.e., “portions of the condominium property not included in the units.” Fla. Stat. § 718.103(8). Read Full Post
Five Ways for Commercial Landlords to Protect Themselves in Commercial Real Estate Leases
By: Charles B. Jimerson, Esq. and Alicia Battern
Outside of Florida’s codified landlord/tenant laws, there are several ways a landlord can protect itself when involved in a commercial real estate lease. This Blog post highlights some of the ways that commercial landlords may protect their personal and financial interests within commercial real estate lease. Read Full Post
General Contractors: Make sure you have a Subcontractor Exception to the Your Work Exclusion in your CGL Policy
By Austin B Calhoun
Do you know what your CGL insurance policy covers? General contractors may expect that their CGL policy covers the cost to repair defective work, or other components of the project that were damaged by defective work. This may be one of the primary reasons a contractor purchases CGL insurance. However, this coverage may not exist. It depends on the language of the policy and endorsements. Of particular importance is the “your work” exclusion and the “subcontractor exception,” which were the subject of a recent Florida case. In J.B.D. Construction, Inc. v. Mid-Continent Casualty Company, 2014 U.S. App. LEXIS 13358 (11th Cir. July 11, 2014), the court denied coverage based on the “your work” exclusion. This blog looks first at the concept of “property damage” coverage and then examines how the holding of J.B.D. Construction impacts the breadth of property excluded from “property damage” coverage by the “your work” exclusion. Lastly, we examine how elimination of the “subcontractor exception” renders your insurance nearly useless in construction defect cases. Read Full Post
The Impact of Tiara Condominiums: Independent Tort Claims and Jury Trial Waivers Make Their Way to Florida Banking Law
By: Charles B. Jimerson, Esq.
The newest development concerning independent tort claims and causes of action arising from a breach of contract manifests as a result of Tiara Condo. Ass’n., Inc. v. Marsh & McLennan Co. and is exemplified through the holding of Marian Farms, Inc. v. SunTrust Banks, Inc. Marian Farms, Inc. v. SunTrust Banks, Inc., No. 5D12-886, 2014 Fla. App. LEXIS 57, at *2 (Fla. 5th DCA Jan. 3, 2014); Tiara Condo. Ass’n., Inc., v. Marsh & McLennan Co., 110 So.3d 399, 407 (Fla. 2013). The decision of Marian Farms represents the newly established precedent from Tiara Condo. Ass’n. regarding the implementation of Florida’s economic loss rule and imports its holding to Florida banking law. The decision of Tiara Condo. Ass’n. limits the application of the economic loss rule by finding that the rule now only applies in the products liability context. Id. at 407. This deviation from precedent, which occurred after the order dismissing the plaintiff’s complaint in Marian Farms, consequently changed the outcome in Marian Farms such that the order was reversed and the case remanded. No. 5D12-886, 2014 Fla. App. LEXIS 57, at *3. The net result is that independent torts separate and apart from the depositor agreement will survive dismissal and present issues for a jury to decide. Read Full Post
A Condo Association’s Lien Foreclosure Does Not Extinguish the Outstanding Past-Due Assessments Owed by the Previous Owner
By Hans C. Wahl, Esq.
The Florida Legislature, in 2014, amended the section of the Florida Condominium Act concerning liens for unpaid condominium assessments and who shoulders that liability. Specifically, Section 718.116(1)(a) was amended to make clear that an association’s temporary ownership of a certain unit does not wipe out the unpaid assessment balance which existed on that unit prior to the association’s ownership. This change was the legislature’s strong reaction to the 2013 case, Aventura Management, LLC v. Spiaggia. This Blog post will discuss how that case prompted this amendment to the Florida Condominium Act and explain how this revised statute greatly benefits and protects condominium associations going forward. Read Full Post