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Monthly Archives: October 2014

Avoiding the Selective Enforcement Defense When Enforcing Condominium Association Rules and Regulations

October 29, 2014 Community Association Industry Legal Blog

One of the most challenging aspects of effectively running and operating a condominium association is the constant turnover in board membership and the inconsistency this creates concerning rules enforcement. Most association board seats are up for reelection at least every two years if not every year. When members decide to run for the board, they often do so because they feel the current board is not properly running the association or enforcing its rules. Yet once a newly elected and motivated board attempts to right the ship and enforce the bylaws and rules and regulations, it finds itself having to respond to selective enforcement defenses due to the prior board’s failure to act. This presents quite the conundrum. Board members have a fiduciary duty to enforce the association’s governing documents but cannot do so effectively. There must be a solution. This Blog post will discuss how a board can avoid the selective enforcement defense when enforcing condominium association rules and regulations.

Qualifying Agent for Licensed Contractors and the Lake Eola Builders Exception

October 21, 2014 Construction Industry Legal Blog

By Austin B Calhoun

Construction is a risky business. One risk is the danger to the public from activities of incompetent contractors. The Florida Legislature has addressed this risk. Chapter 489, Florida Statutes, regulates construction “contracting,” as defined in Section 489.105(6). To protect the public, a business organization that wishes to engage in contracting must be “licensed.” To be licensed, a business organization must have a “qualifying agent” in accordance with Chapter 489 concerning the scope of the work to be performed under the contract. Fla. Stat. 489.128(1)(a) (2014). This requirement raises questions: Who is a qualifying agent? How does a company register a qualifying agent in accordance with Chapter 489? When does a company need to register a qualifying agent? This blog answers these three questions and addresses the federal Lake Eola Builders case that tries to craft an exception to the strict rules of Chapter 489.

Venue Selection Clauses in Construction Contracts: Contractors and Subcontractors Beware

October 20, 2014 Construction Industry Legal Blog

By: James O. Birr, III

Most well written construction contracts, or any contract for that matter, have provisions governing venue for litigation of disputes arising out of or related to the contract. These types of provisions are commonly referred to as venue selection clauses. Depending on how the venue clause is worded, a court may require the parties to litigate their claims in a venue that does not jibe with what the parties intended. In the context of construction defect cases, and notwithstanding whether the venue clause is mandatory, parties may still be required to litigate in a forum other than the one they selected. Love’s Window & Door Installation, Inc. v. Acousti Engineering Company.

Bankruptcy Asset Sales: How a “Free and Clear” Section 363 Sale Affects the Purchaser’s Liability

October 14, 2014 Banking & Financial Services Industry Legal Blog

By: Brandon C. Meadows

When purchasing assets from a bankruptcy estate, purchasers often rely on the protections of 11 USC 363(f) of the Bankruptcy Code, which allows property to be sold “free and clear of any interest in property” if one of five statutory conditions are met. Those conditions are:
1.Applicable non-bankruptcy law permits a sale free and clear of interests;
2.The interest holder consents to the sale;
3.The interest is a lien and the sale price exceeds the aggregate value of all liens on the property;
4.The interest is in bona fide dispute; or
5.The holder could be compelled in a legal or equitable proceeding to accept money satisfaction of its interest in the property.

Condo Associations Have Statutory Right to Amend Declaration but can Only Unilaterally Void a Declaration Provision in Certain Circumstances

October 8, 2014 Community Association Industry Legal Blog

The declaration of condominium is the instrument by which a condominium is created. Fla. Stat. § 718.103(15). Florida courts have often referred to a declaration of condominium as the condominium’s “constitution” because it “strictly governs the relationships among the condominium unit owners and the condominium association.” Woodside Vill. Condo. Ass’n, Inc. v. Jahren, 806 So.2d 452, 456 (Fla. 2002). Yet what commonly happens is that, over time, unit owners and/or the board of directors of condo associations grow to dislike certain declaration provisions. Those bound by the declaration cannot simply ignore those unwanted provisions; rather, they must take action to amend and/or otherwise change the declaration. Fortunately, Condo Associations have the statutory right to amend their declarations and may even unilaterally void declaration provisions in certain circumstances. This blog post will discuss this right in more detail.

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