Category Archives: bLAWg

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

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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

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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

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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 bLAWg post highlights some of the ways that commercial landlords may protect their personal and financial interests within commercial real estate lease. Read Full Post

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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 blawg 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

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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

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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 bLAWg 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

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HOW ARE EMINENT DOMAIN DAMAGES CALCULATED IN FLORIDA?

BY: CHARLES B. JIMERSON

Representing real estate developers, we are often asked how damages are calculated when the State of Florida takes a building in eminent domain. The answer is that it depends (don’t you love lawyerly answers?), but for the most basic scenario, we’ll analyze a taking that will require destruction of the entire building and for round numbers, we’ll say that the building has a fair market value of one million dollars. In short, under applicable Florida statutes and case law, fair market value of land and any additional factor impacting the value of the condemned property are factors to determine full compensation. The specific facts of the case will determine if any other applicable compensation is awarded. Read Full Post

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Condo Associations’ Rights And Remedies

By Hans C. Wahl, Esq.

Every so often condo associations must deal with one or more abandoned units within their communities. Whether the result of owners unable to secure a tenant or lender foreclosure actions, abandoned units can create serious issues for an association such as the growth of hazardous mold, insect infestation and other forms of unit deterioration. Sometimes a prior owner will leave a unit in an uninhabitable condition or even purposefully destroy parts of the unit, which isn’t discovered until after a foreclosure sale. Abandoned units in poor condition can lead to damage to the common elements and limited common elements if not timely addressed. The Florida Condominium Act enables associations to be proactive when these circumstances arise and provides various remedies to associations dealing with these predicaments. This bLAWg post will discuss condo associations’ rights and remedies concerning abandoned and foreclosed units in disrepair. Read Full Post

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Community Association Managers’ Duty To The Association

By Christopher M. Cobb, Esquire

As per Section 718.111(a), Florida Statutes, the officers and directors of a condominium association owe a fiduciary duty to their unit owners. Fla. Stat. § 718.111(a) (2013). However, the statute does not specify whether the community association managers contracted by the board, owe a fiduciary duty to the association as well. Read Full Post

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