The Basics Surrounding Homeowners Association Turnovers.

By: Dan Rich, Esq.
Clark, Campbell, Lancaster & Munson, P.A.

One of the most important events a homeowners association will face is its “turnover” or “transition” from the developer of the community to the unit owners. Despite the importance of a turnover, what I’ve found is that many unit owners are unaware of the basics surrounding a homeowners association’s transition. This article is intended to serve as an overview of the transition process for homeowners associations and developers that may be undergoing the process, are on the verge of a transition, or who just want to educate themselves on what a proper turnover entails.

“Transition” or “turnover” of any homeowners association means that the unit owners of the association, as opposed to the developer, are now entitled to elect at least a majority of the members of the association’s board of directors. This is a huge step for any association, as the board of directors, or board, serve as the voice of all unit owners while also conducting the day-to-day affairs of the association. For homeowners associations, the turnover process is governed by Section 720.307, Florida Statutes. Section 720.307 provides that a turnover is triggered upon any one of the following six events occurring:

  1. Ninety percent (90%) of the parcels in all phases of the association have been purchased, in which case turnover must occur within three (3) months of the developer reaching the 90% sale threshold;
  2. Some other percentage of parcels have been purchased, a certain “triggering” event has occurred, or a specified date has been reached, as particularly specified in the association’s governing documents;
  3. The developer abandons its responsibilities to maintain and complete the amenities or infrastructure as disclosed in the association’s governing documents;
  4. The developer files for Chapter 7 bankruptcy;
  5. The developer loses title to the association property via foreclosure or a deed in lieu of foreclosure, unless the subsequent owner has accepted an assignment of the developer’s rights and responsibilities; and
  6. A receiver is appointed by a circuit court judge for longer than thirty (30) days, unless the court determines that the transfer of control would be detrimental to the homeowners association;

Upon the occurrence of any of the above triggering events, unit owners, other than the developer, are legally entitled to elect at least a majority of the association’s board. However, so long as the developer is still holding for sale at least five percent (5%) of the association’s parcels, the developer remains entitled to elect at least one member onto the association’s board.

Section 720.307 goes on to provide that once unit owners have had the association turned over to them, the developer must also “turnover” all of the association’s documents to the association. These documents include, but are not limited to, the original recorded declaration of covenants, a certified copy of the association’s articles of incorporation, a copy of the bylaws, the minute books, financial records (more on this below), bank accounts and statements, personal property of the association (i.e. indoor and outdoor furniture, office equipment, computers), and all of the construction plans and specifications, which must include a list of the names, addresses and telephone numbers of all contractors, sub-contractors, or others in the current employ of the association. The developer is also required to provide unit owners with copies of all insurance policies, certificates of occupancy, permits, warranties, unit owner roster, and all of the contracts that the developer controlled association may have executed for services such as cable, telephone, security and other services.

Importantly, for all homeowners associations incorporated after December 31, 2007, the financial records that the developer must provide to the unit owner controlled association must be audited by a certified public accountant. Additionally, the audit must cover the time from incorporation up and until turnover, or the time span from the most recent audit to turnover, if an audit has been performed for each year since inception. The purpose of these stringent audit requirements is to allow the unit owner controlled association to determine whether all expenditures were made for association purposes, and to also determine if the billings, cash receipts and related records reflect whether the developer was charged, and in turn paid, the proper amount of assessments.

Hopefully this step-by-step analysis will help prepare developers and unit owners facing a “transition” or “turnover” of their association. However, if the procedures – as outlined above – are not followed properly, it can result in expensive legal exposure that ultimately could have adverse effects for the association, its finances, and its unit owners. This is why you, as a developer or interested unit owner, or your association, should strongly consider consulting an attorney who is knowledgeable in Florida community association law for guidance on the appropriate turnover procedure for your specific association.

Dan Rich is an attorney with the law firm Clark, Campbell, Lancaster & Munson, P.A. in Lakeland. Questions can be submitted to thelaw@cclmlaw.com.

Litigation

How a Judgment Becomes a Lien

By: J. Matthew Kelly, Esq.
Clark, Campbell, Lancaster & Munson, P.A.

At the end of a lawsuit, the prevailing party often ends up with a final judgment awarding it some monetary amount from the losing party. This amount can include amounts for damages, attorney’s fees, and costs.

In many cases, obtaining the judgment is only the first step in recovering any money awarded. Collecting on a judgment can sometimes be more intensive than actually getting the judgment awarded by the court.

While there are many active ways to attempt to collect on a judgment such as garnishing wages and bank accounts, judgment creditors can also use their judgment to create a lien on the judgment debtor’s real and personal property.

Real Property

Real property is land and the buildings which occupy the land. A judgment can become a lien on the judgment debtor’s real property. In order for a judgment to become a judgment lien on a judgment debtor’s real property, a certified copy of the judgment must be recorded in the official records of the county where the judgment debtor owns real property. Additionally, the judgment itself must contain the address of the individual who possess the lien as a result of the judgment or an affidavit must be simultaneously recorded with the certified copy of the judgment stating the lien holder’s address.

Once a judgment is recorded as described above, it becomes a lien on real property. Importantly, a judgment lien is only effective in the county for which it is recorded. If a judgment is recorded in Polk County but the judgment debtor only owns real property in Orange County, the judgment holder has not created a lien on the judgment debtor’s property. As a result, great care must be taken to ensure that the judgment is recorded in the appropriate counties to create a lien on a judgment debtor’s property.

Judgment liens on real property have an expiration date. Under the current law, a judgment lien recorded on or after July 1, 1994 remains a judgment lien on real property for ten years from the date of its recording. A judgment lien holder can extend this period for one additional ten-year period by rerecording a certified copy of the judgment prior to the expiration of the lien and by simultaneously recording an affidavit with the current address of the lienholder. An extension is effective from the date the certified copy of the judgment is rerecorded. No judgment can act as a lien on real property in Florida after twenty years from the date of the entry of the judgment expires.

Personal Property

A judgment can become a lien on the judgment debtor’s personal property by filing a judgment lien certificate with the Florida Department of State. The Florida Department of State produces a form Judgment Lien Certificate which can be filled out and filed with the department in order to create the lien on personal property. A judgment lien on personal property becomes effectives the date it is filed.

A judgment lien on personal property also has an expiration date. A judgment lien pursuant to a judgment lien certificate, becomes invalid five years after the date of the filing of the judgment lien certificate. However, at any time within six months before or six months after the scheduled lapse of a judgment lien, the judgment creditor may acquire a second judgment lien by filing a new judgment lien certificate. The effective date of the second judgment lien is the date and time on which the judgment lien certificate is filed. The second judgment lien permanently lapses and becomes invalid five years after its filing date, and additional liens based on the original judgment or any judgment based on the original judgment may not be acquired.

When dealing with liens time is of the essence as liens are generally prioritized by the time with which they were recorded or filed. If someone records their judgment first or files their judgment certificate first, it will generally be superior to those liens that are recorded or filed later in time.

Florida law does provide for certain homestead exemptions which exempt a judgment debtor’s homestead and some personal property from forced sale and from judgment liens. If you believe that certain property may be protected by Florida’s homestead exemption it is recommended to consult with an attorney regarding these rights.

If you were recently awarded a judgment, or are attempting to collect on a judgment, I would advise hiring an attorney to streamline the process and to make sure your judgment is perfected appropriately against the assets of the judgment debtor.

J. Matthew Kelly is an attorney with the law firm Clark, Campbell, Lancaster & Munson, P.A. in Lakeland. Questions can be submitted to thelaw@cclmlaw.com.

Supreme Court: Sports Betting is No Longer Prohibited Under Federal Law, it is Time for Each State to Decide for Themselves

By: Kevin R. Albaum, Esq.
Clark, Campbell, Lancaster & Munson, P.A.

On May 14, 2018, the United States Supreme Court (USSC) struck down the Professional and Amateur Sports Protection Act of 1992 (the “Act”) by ruling that the entire Act was unconstitutional. Since the Act was enacted in 1992, it implemented a federal ban on all sports betting throughout the United States (with only a few exemptions from the Act such as the gaming industry in Nevada). The USSC’s ruling was based on the belief that the Act violated the Tenth Amendment of the United States Constitution which states that “The Powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”. USSC’s ruling is saying that Congress had unconstitutionally abused their power by passing the Act and that each state should be responsible for deciding for themselves how their state should regulate sports betting. It is likely that the same line of reasoning (violation of Tenth Amendment) will be argued by the pro-marijuana side if the USSC decides to review a case in the near future regarding the legality of the federal ban on Marijuana.

Now that the USSC has handed down a decision, each state is able to regulate their own sports betting laws. Some states are acting fast as Delaware implemented legal sports betting on June 5, 2018, and Delaware Governor, John Carney, placed the first bet ($10.00 on the Philadelphia Phillies to win that day’s game) and on June 7, 2018, New Jersey had a bill pass allowing for legal sports betting. Other states (Connecticut, Mississippi, and West Virginia) are all expected to legalize sports betting by this fall in time for football season. California, Illinois, Michigan and New York all currently have bills or constitutional amendments pending that may pass before the end of 2018 as well. The legalization of sports betting is supposed to help cut down on a black-market industry where it is believed that Americans illegally wager over $150 Billion per year either through local bookies and offshore sports books. New Jersey will tax all gambling at a 9.75% tax rate with hopes to stimulate their revenue and to revive the dying tourist industry in Atlantic City. As many as twenty (20) other states are either considering or expected to consider legalization of sports betting by 2019 with more states likely to follow (especially if they see their neighboring states generating substantial revenue due to legalizing sports betting).

In Florida, sports betting remains illegal and that seems unlikely to change in the near future. This is due to a proposed constitutional amendment and an existing agreement with the Seminole Indian Tribe that both currently stand in the way of clarity to the legalization of sports betting in Florida. Amendment 3 will be on all Florida ballots this November and if passed will require that all casino gambling decisions in Florida would require an amendment to Florida’s Constitution in order to become law in Florida. If Amendment 3 passes, Florida’s legislature would no longer have the authority to create legislation related to casino gambling. The presence of Amendment 3 and the fact that this year’s session has already concluded makes is very unlikely for sports betting to become legal in Florida this year. Native American tribe agreements with the state of Florida will not be impacted by Amendment 3 (nor will pari-mutuel wagering on horse racing and dog racing).

About one-half of the states in U.S. have gaming agreements known as “Compacts” with Native American tribes which gives tribes the ability to conduct legal gambling operations. Currently, the Seminole Indian Tribe has a Compact with Florida and they pays the state more than $300 million a year for exclusive right to many card games and slot machine operations in the state in all counties besides Miami Dade and Broward. A renegotiation between the Seminole Tribe and the State of Florida is likely also needed before legal sports betting makes its way to Florida.

Kevin Albaum is an attorney in the Elder Law Practice at Clark, Campbell, Lancaster & Munson, P.A. Questions can be submitted online to thelaw@cclmlaw.com.

Enforcing community association rules by imposing fines.

By Dan Rich

One of the most common challenges for community associations is how to effectively enforce association rules against residents who repeatedly violate them. To start, it is important that the rules and regulations, as set forth in a community’s governing documents, be enforced consistently for each and every member, director, officer and resident or else the rules may be rendered unenforceable over time. If a community is faced with a repeat violator who has no intent of complying with the community’s rules, one of the most effective tools an association can use is to impose fines against the violator.
As of 2015, Florida law allows both homeowners and condominium associations to impose fines against members, tenants, guests and invitees who violate a community’s declaration of covenants, articles of incorporation, bylaws or any rules adopted by the association. For both homeowners and condominium associations, Florida statutory law provides that fines may not exceed $100.00 per violation, and that the fines may be imposed for each day that a violation continues, with the statutory mandate that fines cannot exceed $1,000.00, in total, per violation.

It is imperative that an association follow the statutory procedures as they are specifically outlined in Chapters 719 and 720, in order to impose fines at a later date. The steps necessary for imposing a fine are summarized below:

  • Step One. Establish a fining committee: An association’s board of directors must appoint an independent committee, often called the “fining committee” or “compliance committee” as its first step towards imposing fines. Fining committee members cannot be officers, directors, or employees of the association, nor can they be a spouse, parent, child, brother or sister of an officer, director or employee. The homeowner association statute requires a minimum of three (3) committee members, and the condominium association statute is silent as to the required number of committee members; however, selecting an odd number is often encouraged to avoid ties and unnecessary deadlock.
  • Step Two. Place violator on notice: After establishing the fining committee, and upon the occurrence of a violation, the association’s board of directors may place the violating resident (owners and tenants alike) on notice of the violation. Often times, it is most practical to send a courtesy notice warning the resident of their violation. Courtesy notices should contain the nature of the violation, the rule or regulation being violated, and provide a reasonable time frame to remedy the violation. If the violation remains uncured, the association is permitted to impose a fine; however, the violator must be provided with an additional notice, before the fine can take effect, stating that the violator has fourteen (14) days to request a hearing in front of the fining committee to dispute the validity of the fine before it is imposed.
  • Step Three. Fining committee hearing: If the violator requests the hearing mentioned in Step Two above, he or she is afforded an opportunity to appear in front of the fining committee to dispute the validity of the fine being imposed against the violator. The fining committee then has two options: (i) impose the fine levied by the association’s board; or (ii) overturn the fine – at which point the matter ends and the fine is no longer actionable. If the violator fails to request a hearing, for any reason, the fine can be imposed immediately at the end of the fourteen (14) day period.
  • Step Four: Collect the fine. If the fine is approved by the fining committee, the minutes from the meeting should be provided to the association’s board so that they can impose the fine. Typically, the fine is placed onto an invoice and transmitted directly to the violator. As stated previously, fines cannot exceed $100.00 per violation, but can be assessed against the violator for each day that the violation continues until the aggregate amount reaches $1,000.00. Only one fourteen (14) day notice and one opportunity for a fining committee hearing is required, thus, subsequent notices or hearings for the same fineable violation are not necessary. The association laws differ on how a maximum fine can be collected. In homeowners associations, the law provides that once the maximum fine is reached a lien can be recorded against the violator. However, for condominiums, the right to lien is absent. As such, the condominium association must pursue a collection action using the courts, or await a sale and then recoup the amount of delinquent funds at that time.

Hopefully, this step-by-step analysis will help association’s better address compliance and enforcement issues. However, if the process – as outlined above – is not followed properly, it can result in expensive legal exposure that ultimately could invalidate the fine. In fact, if a fine is challenged in court, the opposing counsel will first attack the association’s process in an attempt to invalidate the fine. This is why if you or your association should strongly consider consulting an attorney who is knowledgeable in Florida community association law for guidance.

Dan Rich is an attorney with the law firm Clark, Campbell, Lancaster & Munson, P.A. in Lakeland. Questions can be submitted to thelaw@cclmlaw.com.

Litigation

Does the other side have to pay my attorney’s fees?

By: J. Matthew Kelly, Esq.
Clark, Campbell, Lancaster & Munson, P.A.

One of the most common questions I receive as a litigation attorney is: “Does the opposing party have to pay my attorney’s fees if I win?” The general answer of “no” often surprises people, however, there exists many exceptions to this general rule.

The American Rule

Florida, and the majority of states and jurisdictions in the United States of America follow the American Rule. The American rules provides that attorney’s fees can only be awarded to a party if authorized by the contract of the parties or authorized by statute.

Attorney’s Fees Provisions by Agreement

One of the most common ways a prevailing party can recover its attorney’s fees is if the agreement or contract which is being disputed has an attorney’s fees provision. As previously mentioned, an exception to the American Rule is when the parties expressly agree that a prevailing party will be entitled to fees.

It is very important when entering, drafting, or creating contracts to consider whether an attorney’s fee provision will best suit your objectives. If you are a party to a contract and a lawsuit results from an alleged breach of that contract you will be paying your own fees, even if you prevail, if the contract is silent as to attorney’s fees. Having an attorney’s fee provision in the contract can deter frivolous litigation as a party is less likely to bring a baseless lawsuit if it will be responsible for the other party’s attorney’s fees. On the other hand, not having an attorney’s fee provision can also help deter litigation in certain situations as litigation can be costly and without the ability to recover their fees a party may refrain from filing a lawsuit.

It is not uncommon to see contract with a one-sided attorney’s fee provision. A one-sided attorney’s fee provision is an attorney’s fee provision which only allows one party to the contract to recover its attorney’s fees in the event of legal action on the contract. In Florida, if the contract only provides that one party will be entitled to attorney’s fees the court may also allow the other party to recover attorney’s fees if the other party prevails in the legal action.

Statutory Authorization to Attorney’s Fees

The other way a party in a legal action can seek to recover its attorney’s fees is if a statute authorizes attorney’s fees.

Some common proceedings where a statue authorizes attorney’s fees are as follows: landlord tenant disputes relating to non-payment of rent, many disputes relating to homeowners’ associations, disputes relating to the Florida Deceptive and Unfair Trade Practices Act, disputes where an insured prevails against an insurer, and in many family law proceedings including dissolution of marriage.

Two other common statutory mechanisms for seeking attorney’s fees are Florida Statutes Section 57.105 and Florida Statutes Section 768.79.

Florida Statutes Section 57.105 allows for a party to seek to recover its attorney’s fees in relation to unsupported claims or defenses. When a litigant is met with a frivolous claim he or she can use Section 57.105 as a mechanism to attempt to recover attorney’s fees. In certain circumstances under Section 57.105 the attorney who filed the frivolous motion can be forced to pay a portion of the attorney’s fees. Section 57.105 has many requirements that need to be followed before a court will consider awarding fees. One such requirement is that the party seeking to use Section 57.105 against a frivolous claim must serve the other party with the proposed motion, and typically a letter, allowing a twenty-one (21) day window for the offending party to withdraw or correct its claim.

Florida Statutes Section 768.79 governs “offers of judgment” which are offers from one party to another to settle the case for a certain amount. Any such offer must also comply with Florida Rules of Civil Procedure 1.442. Generally, this works by allowing a plaintiff to present an offer to the defendant. If, the defendant accepts the offer of judgment the case ends at the point. However, if the defendant rejects the offer of judgment and the plaintiff ends up prevailing and receiving a judgment in an amount which as at least twenty-five (25) percent greater than the offer of judgment, then the Plaintiff will be entitled to recover attorney’s fees that were incurred from the date of filling the offer forward. Defendants can also make offers under this provision but will only be entitled to fees if the plaintiff’s judgment is at least twenty-five (25) percent less than the defendant’s offer.

It is important to have an attorney review and draft contracts when possible to help determine whether an attorney’s fee provision is right for your situation. It is equally as important to have an attorney handle the bringing or defending of any claim to make the determination of whether or not you will be able to recover your attorney’s fees if you prevail. Importantly, litigants must request attorney’s fees in the initial pleadings or they waive the ability to recover such fees. Once a party prevails that party must move for its attorney’s fees within thirty days or again it will lose the ability to seek them. Many of these mechanisms involve significant judicial discretion as to entitlement and amount.

J. Matthew Kelly is an attorney with the law firm Clark, Campbell, Lancaster & Munson, P.A. in Lakeland. Questions can be submitted to thelaw@cclmlaw.com.

Alternative Ways for Charitable Giving After the Tax Cuts and Jobs Act of 2017

BY: Kevin R. Albaum, ESQ.
Clark, Campbell, Lancaster & Munson, P.A.

On December 22, 2017, President Trump signed the Tax Cuts and Jobs Act (TCJA) into law.  Most of the changes went into effect on January 1, 2018, and do not impact 2017 taxes. The individual tax changes are favorable to many with the standard deductions being raised in 2018 ($12,000 for an individual. $13,600 for 65+ individual; $24,000 for married couple; and $26,600 for married 65+ couple) and most individual income tax rates being lowered a few percentage points. Further, the child tax credit is doubled from $1,000 to $2,000 and the estate tax threshold was raised ($11.2 Million for an individual or $22.4 Million for a married couple).

Some believe that because of TCJA that the number of households claiming a Charitable deduction for an itemized gift to non-profits organizations will shrink. As result of the increased standard deductions, many taxpayers may not be able to claim an itemized deduction for their charitable gifts.  Although the standard deduction has been increased, there are planning opportunities to still receive a tax benefit for gifts to charities.

The question becomes should you stop donating to your favorite charities that depend on your donations for their day-to-day operations just because it may no longer be as tax-advantageous? No, as many people give to help benefit the charitable organizations they care about and not just for potential tax benefits. However, you may consider other alternative charitable giving opportunities.

An individual over age 70 ½ can transfer up to $100,000 per year from their traditional IRA (not Roth) to charity (the distribution can count as the Required Minimum Distribution) and if they follow the rules for a qualified charitable distribution, the gift will not count as taxable income to the individual.  However, the distribution must go directly from the individual’s IRA to the charity to be transferred income tax-free.  For example, if your RMD is $50,000 in a given year, you may direct all of the RMD, a portion of it or up to $100,000 from your IRA be distributed to a charity.  If you direct $5,000 of the $50,000 RMD payment to a charity, you will recognize only $45,000 of income.

If you are interested in using your IRA to give to a charity, contact your plan administrator that manages your IRA and explain to them that you would like to make a qualified charitable distribution and they will help assist you in the transaction.  It is very important not to receive your distribution first and then give the money to the charity (after you received it) as this will not qualify as a qualified charitable distribution of your IRA to a charity and will make the distribution subject to individual income tax.  You can give up to $100,000 of your IRA to the charitable organization and name as many organizations you wish to receive the qualified charitable distributions (For example, you may give $50,000 from IRA to 5 different charities).

An individual may also bundle their contributions all at once, so they can benefit from a larger itemized deduction in certain years instead of making smaller gifts each year.  If you do not wish for a charity to receive a lump sum gift in a given year, you may give the large sum to a donor advised fund (DAF).  Often this large charitable gift is not given to the charity directly but instead given to a DAF.  By using a DAF, you claim a large itemized deduction in one year, and the DAF will distribute the money to your favorites charities over time as you direct them.  There are numerous charitable organizations and financial companies that can assist to establish and manage the DAF for you.   DAFs are a good option for those that want to continue to make charitable donations but also obtain the income tax benefits while doing so.

Before setting up a DAF or planning IRA distributions to your favored charities, it is recommended that you contact either a qualified tax professional or an attorney to advise you on obtaining the tax benefits that you are seeking.

Kevin Albaum is an attorney in the Elder Law Practice at Clark, Campbell, Lancaster & Munson, P.A. Questions can be submitted online to thelaw@cclmlaw.com.

Wrap-Up of 2018 Legislative Changes for Community Associations

By Dan Rich

On March 23, 2018, Governor Rick Scott signed House Bill 841 into law. House Bill 841, which shall take effect on July 1, 2018, makes numerous alterations to a number of statutes regulating certain community associations (i.e. cooperatives, condominiums and homeowners associations; however, House Bill 841 does not amend Chapter 723, which relates to mobile home parks). Below are some of the highlights of House Bill 841:

Fines and Suspensions: A fine approved by the fining committee of a homeowner, condominium or cooperative association is due five (5) days after the date of said committee meeting at which the fine was approved. Sections 718.303(3)(b), 719.303(3)(b) and 720.305(2)(b), Florida Statutes. If the fine is not paid after the five (5) days said fine can be assessed for each day the violator continues to not comply with the association’s governing documents. Once the fine reaches a total of one thousand dollars ($1,000), the association can then proceed to place a lien on the violator’s property in accordance with Florida law.

Notice of Meetings: A homeowners association, or HOA, is allowed to give notice by email to any parcel owner who has previously provided written consent and an email address to the HOA for the purpose of receiving notices. Section 720.303(2)(c)1., Florida Statutes. Condominium and cooperative associations were previously permitted to do so.

Official Records: A condominium association must permanently maintain the following documents since inception of the association (as opposed to the general requirement of seven (7) years of retention): (i) a copy of the articles of incorporation, declaration of covenants, bylaws and rules and regulations, if any, of the association; (ii) meeting minutes; and (iii) a copy of all plans, permits, warranties and other items provided by the developer at turnover. Section 718.111(12), Florida Statutes.

Board Member Communication: Members of the board of directors for cooperative associations and HOAs are permitted to utilize email as a means of communication; but, a director may not cast a vote on an association matter via email. Sections 719.106(1)(c) and 720.303(2)(a), Florida Statutes.

Term Limits: The provision that a condominium board member may not serve more than four consecutive 2-year terms was repealed by House Bill 841. Now, condominium board members may not serve more than eight (8) consecutive years, unless approved by a two-thirds (2/3) vote of unit owners or there are not enough eligible candidates to fill said vacancy. Section 718.112(2)(d)2., Florida Statutes.

Electric Vehicles: Condominium associations are now permitted to authorize the installation of charging stations for electric vehicles in limited common element parking spaces at the expense of the unit owner to which the parking space is assigned. Additionally, condominium associations may not prohibit unit owners from installing electric vehicle charging stations within limited common element parking spaces, provided that such installations must comply with Section 718.113(8), Florida Statutes.

HOA Elections: If an election is not required by the association’s by-laws because there are fewer or an equal number of candidates than the number of vacancies on the board to be filled, and nominations from the floor are not mandated by the association’s by-laws, then write-in nominations are not permitted and the candidates will commence service on the board regardless of whether a quorum is attained at the meeting in which the directors are elected. Section 720.306(9)(a), Florida Statutes.

Modifications: If a condominium declaration does not outline a procedure to approve material alterations to condominium property, then approval by seventy-five percent (75%) of the voting interests must be obtained prior to the material alterations to the property may begin. Section 718.113(2), Florida Statutes.

In addition to the provisions highlighted above, House Bill 841 contains other changes to Florida’s community association statutes.  Persons who reside or own property within a homeowners, condominium or cooperative association should take time to review House Bill 841. The full text of this Bill is available for free on the Florida Legislature’s website (Link: https://www.flsenate.gov/Session/Bill/2018/00841).  If you have questions about the new laws or how they may impact you or your community, you should consider consulting an attorney who is knowledgeable in Florida community association law for guidance.

What Employers Need to Know about the Family & Medical Leave Act

By: J. Matthew Kelly, Esq.
Clark, Campbell, Lancaster & Munson, P.A.

The Family & Medical Leave Act (FMLA) is a federal law which seeks to balance the demands of the workplace with the needs of the family by entitling employees to take reasonable leave for medical reasons, birth or adoption of children, and to care for family members with a serious health condition.

Not all employers are subject to the requirements of the FMLA. For a private employer to be a covered employer under the FMLA the employer must employ 50 or more employees in 20 or more workweeks in the current or previous calendar year. Different requirements apply to public employers and schools.

For an employee to be eligible for leave under the FMLA the employee must (1) work for a covered employer, (2) have worked for the employer for at least 12 months as of the date that the employee is to take leave under the FMLA, (3) have worked at least 1,250 hours for the employer in the preceding 12-month period from the date the employee is to take leave under the FMLA, and (4) work at a location where the employer employs at least 50 people within 75 miles of the employee’s worksite.

Once it is determined that an employee is entitled to leave under the FMLA, an eligible employee may take up to 12 workweeks of leave within a 12-month period. An employee is entitled to take leave in the following situations: (1) the birth or adoption of child, (2) to care for a family member who has a serious health condition, (3) for an employee’s own serious health condition, and (4) for certain circumstances relating to a family members military service. In some circumstances, leave can be extended for military caregivers.

Important Considerations for Employers

  • Covered employers are required to post and keep posted, in conspicuous places, a poster setting forth excerpts from, or summaries of, the pertinent parts of the FMLA. Additionally, a general notice regarding the FMLA must be included in employee handbooks or provided to new hires.
  • If an employee requests leave under the FMLA the employer must provide the employee with notice concerning his or her eligibility for FMLA leave and his or her rights and responsibilities under the FMLA.
  • If an employee’s leave is designated as FMLA leave the employer must provide to the employee a designation notice stating that the leave qualifies as FMLA leave, outline the requirements of the employee while on leave, and, if known, the amount of leave that will be deducted from the employee’s entitlement to FMLA leave.
  • In certain situations, an employer is entitled to request a certification from the employee which supports the employee’s need for leave under the FMLA. The certification process allows the employer to obtain information regarding the employee’s request for leave.
  • In certain situations, employers may require employee to take accrued paid leave like sick or vacation leave to cover the requested FMLA leave.
  • Employers must maintain the employee’s coverage in group health plan when on FMLA leave in the same manner as when the employee was not on FMLA leave.
  • When an employee returns from FMLA leave the employee must be put back in to the same position as when the leave commenced or be placed in an equivalent position with equivalent payments and benefits.
  • Importantly, an employer can be liable for various damages, including wages, salary, employment benefits, costs, and attorney’s fees, if the employer interferes, restrains, or denies rights provided for under the FMLA.

If your company is facing an issue related to the FMLA or wants to ensure compliance with the standards set forth in the FMLA, contact an attorney immediately to protect your rights as the FMLA is a complex federal law with many nuances.

J. Matthew Kelly is an attorney with the law firm Clark, Campbell, Lancaster & Munson, P.A. in Lakeland. Questions can be submitted to thelaw@cclmlaw.com.

HOW TO AFFORD LONG TERM CARE

By Kevin R. Albaum, Esq.
A transition from a senior’s home to an assisted living facility or nursing home is never easy for a family. What makes matters even more difficult is for the senior’s spouse or children to have to bear this new large monthly expense for an unknown amount of time. My best advice is to explore your options to help pay for care immediately before continuing to cut check after check to pay for the senior’s care. Alternative options to pay for care are as follows: Long Term Care Insurance, Medicare, Medicaid, and Veteran’s benefits.

Long Term Care Insurance: Ask the Senior if they have long-term care insurance. If they say no, then ask about life insurance (as sometimes life insurance policies have a rider added to them which can cover long-term care needs). Be sure to review all such policies in depth to see if benefits are available and if so, what the triggering event is for the insurance company to begin paying out the benefits. Long Term Care benefits usually do not begin to pay out until a person can prove with medical records that they are in need of assistance with activities of daily living (“ADLs”). ADLs are used to gauge a person’s level of functioning and generally include the following: bathing, getting dressed, transferring, eating, continence and toileting. If assistance is needed with enough ADLs, an insurance company will then begin paying out benefits in accordance with the insurance policy guidelines. The benefits can often be used to pay for home care, assisted living care, or nursing home care.

Medicare: Medicare does not generally pay for assisted living care. However, if a person requires skilled nursing care, Medicare part A generally covers up to 100 days of skilled nursing care for any new benefit period (A person gets a new benefit period if at least 60 days has passed since the person last received care in hospital or skilled nursing facility). For a person to receive the full 100 days of Medicare coverage, they also must be able and willing to participate in the prescribed therapies and must be progressing in treatment. The first 20 days (of the 100 total days) are paid by Medicare in full. Days 21-100 will require a co-pay around $165 daily and Medicare will pay the rest (the co-pay amount varies if a person has a Medicare Advantage plan or supplemental plan). After day 100, Medicare skilled nursing care benefits end and the senior (or their family) will have to pay the entire cost of skilled nursing care with no further help from Medicare. Therefore, Medicare is not a long term solution to paying for long term care.

Medicaid: Medicaid benefits can help to pay for home care, assisted living, and nursing home benefits in Florida. An applicant must be assessed and determined to be disabled and in need for the benefits they are requesting. To become financially eligible for benefits, generally, a person must have countable assets under $2,000 and a monthly income under $2,250. Some assets are non-countable for Medicaid purposes such as the applicant’s home, one (1) car, and prepaid burial arrangements. There are restrictions on the applicant’s spouse’s assets as well. If a person has questions regarding their eligibility or how to apply for the different Medicaid programs, an elder law attorney should be consulted.

There is usually a waiting list before a person can apply for home care and assisted living benefits in Florida, however, there is no wait if a person needs to apply for nursing home benefits.

Medicaid benefits are only retroactive for up to a maximum of three (3) months before application date, so it is important to move quickly to apply for benefits if a person expects to reside in assisted living or nursing home indefinitely. All nursing homes take Medicaid nursing home benefits, however, only about fifty percent (50%) of home care companies and assisted living facilities in Polk County, take Medicaid benefits. Applying for and being granted benefits for either Medicaid program often leads to substantial monthly saving for the senior.

Veterans Benefits: A Veteran, their spouse, or surviving spouse may be eligible to receive Aid & Attendance through the Department of Veterans Affairs (“VA”). To be eligible for this pension program, a person must have limited assets and income, and be permanently or completely disabled according to the VA’s disability requirements. To be eligible for this pension, the veteran must also have been discharged under a condition that was non-dishonorable and served ninety (90) days of service with at least one (1) day in one of the following wars: WWI, WWII, Korean War, Vietnam War, or Persian Gulf War.

The pension comes in the form of additional income each month to the senior and is direct deposited into the recipient’s bank account and can be used to pay a caregiver in the home, assisted living facility, or for skilled nursing care. There are also State Veterans Home that provide nursing home and other services to Veterans. It is important to contact the VA to determine eligibility and availability for such programs.

If you or a family member wants to further explore options to pay for long-term care, it is recommended to discuss your options with an elder law attorney who can help identify possible housing options and benefit programs that may be available in your specific situation.

Kevin Albaum is an attorney in the Elder Law Practice at Clark, Campbell, Lancaster & Munson, P.A. Questions can be submitted online to thelaw@cclmlaw.com.

What happens when nobody wants to serve on an association’s board of directors?

By. Dan Rich

Serving on a homeowner association, or HOA, board of directors is a thankless job that often fails to receive the recognition it rightfully deserves. Sadly, communities sometimes experience a dilemma where the old board members have served to their term limit and no other volunteers are interested in stepping up to the plate to volunteer their time and effort as a replacement board member. This creates two legal issues, the first is whether the old “termed out” board members can stay on the board as well as what happens if nobody is willing to serve on the HOA board moving forward.

Under Florida law, HOA directors are entitled to serve for their term and until their successor is duly elected (Emphasis added). Essentially, what this means is that if no new directors are willing to volunteer Florida law permits those people who are already on the board to continue to serve until a replacement steps forward to take their position. With that being said, you may be asking yourself whether that means that an existing board member is ever able to resign or step down from their position as a board member? The answer is yes, any board member at any time can express their intent to resign as a director and/or an officer but said resignation may not be without consequences because a HOA board needs officers and a quorum to conduct day-to-day business.

The definition of a “quorum” will change depending on the language of your governing documents, but the most common quorum definition is generally fifty-one percent (51%) director participation. For example, if an association is made up of a five-member board, a quorum would only be established after three of the board members decided to act. Failure to have enough directors to meet the definition of a quorum under your governing documents will prevent the HOA from being able to hold meetings and conduct meaningful business; however, resignations can also have a grave impact if the person stepping down is not only a director, but also an officer.

Officers of the board include the President, Secretary, Treasurer and sometimes Vice-President. The roles and duties of those offices are generally outlined in your association’s governing documents and provide each officer with certain abilities and powers. If a director, who is also an officer, decides to resign from the board not only will said resignation impact the ability to establish a quorum, but the vacancy may also impact the association’s ability to sign checks to pay third parties, access the HOA’s bank account or to enter into contracts with vendors and other providers.

Up to this point all scenarios have assumed that at least one director is willing to serve on the board, but what happens when all directors have resigned and nobody is willing to replace them? Section 720.3053, Florida Statutes, provides that “if an association fails to fill vacancies on the board of directors sufficient to constitute a quorum in accordance with the bylaws, any member may give notice of the member’s intent to apply to the circuit court within whose jurisdiction the association lies for the appointment of a receiver to manage the affairs of the association.”

There is a particular form for the notice, which is provided in Section 720.3053, that states that the petition to the court will not be filed if the necessary vacancies to establish a quorum are filled with thirty (30) days after the notice is posted or transmitted to all owners. The Florida legislature added this provision in hopes that the notice will conjure up enough volunteers willing to serve on the board to prevent the appointment of a receiver. If the 30 day window expires and nobody steps forward, the member who transmitted the notice can then petition the court for a receiver to run the association.

Unlike customary directors who take the position without compensation, Section 720.3053, provides that the receiver is entitled to receive a salary and reimbursement of all costs and attorneys’ fees payable from association funds. It also goes on to say that the “association shall be responsible for the salary of the receiver, court costs and attorneys’ fees.”

The difference between “free” volunteer directors and paid receivers with their accompanying fees can be a large number that has a drastic impact on the reserves of an HOA. Monies reserved for common area maintenance, repairs and just general upkeep could be directed to pay the receiver’s salary to run your community. Using association funds to pay a receiver is never a good idea as funds being diverted away from general upkeep and repairs will inevitably take a visible toll on your community. To prevent receivership from happening, I would encourage everyone who lives in a HOA and is even slightly pondering volunteering as a director to strongly consider stepping up and serving as a director the next time your community has an election. Your participation may have a greater impact than you ever realized before!

Dan Rich is an attorney with the law firm Clark, Campbell, Lancaster & Munson, P.A. in Lakeland. Questions can be submitted to thelaw@cclmlaw.com.