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10/18/2017

Florida’s Adverse Possession Laws: Reward for Sweat Equity, or Theft by Land Squatters?

Florida’s Adverse Possession Laws: Reward for Sweat Equity, or Theft by Land Squatters?

You’ll have to prove 7 years of trespassing without getting caught, for starters.

Adverse possession. Ever heard of it? It’s a law on the books in Florida. Depending on how you look at it, adverse possession is either a justified transfer of land to someone who will put a piece of property to a more beneficial use – or it’s a seemingly unfair theft of land by squatters.

How does a law like this work, anyway? Here’s a brief overview of the way it’s set up in Florida.

Adverse Possession

In the state of Florida, the law of adverse possession dictates that if an individual moves into an otherwise neglected property and then improves the property, they can be granted title to it after a period of time.

How long is that period of time? Florida adverse possession laws require an individual to occupy this property for at least 7 years. Additionally, they need what’s known as a Color of Title, or proof that they’ve paid property taxes during those 7 years.

But, isn’t that trespassing?

Initially, it is – and that’s illegal. However, when a trespasser continues this activity for an extended period of time, say 7 years, the law may give them the right to remain on the property. It’s difficult to imagine that someone could secretly live on a property for 7 years, and all the while pay taxes and make improvements on it. For this reason, Florida’s laws state that the “trespasser” must be living on the land exclusively and openly.

It’s this lack of evasion (as well as paying property taxes), that defines the requirements of adverse possession. Common sense and concern about being arrested for trespassing is why you don’t see people just moving in to uninhabited Florida homes. Generally, the law is to help homeowners who have inherited property passed down through generations where there is no actual title documentation. And this last part is probably the best way to understand what “Color of Title” really is.

So, how do you make a valid adverse possession claim?

In Florida, you’re transformed from an illegal trespasser to someone with the right to claim adverse possession when you can satisfy these 4 challenges:

  1. You have been in possession of the land for an unbroken period time, during which you have not shared possession of it with others. This is known as Exclusive and Continuous Possession.
  2. Your act of trespassing must be obvious – or in other words, you’ve not attempted to hide out on the property. This is known as Open and Notorious Possession.
  3. You can’t hire somebody to do this for you. You must trespass and then be present on the land, and you have to treat it as if you actually did own it. This is known as Actual Possession.
  4. You simply have to occupy the land, regardless of your knowledge that it is actually not yours. However, you have to be aware that you are trespassing, or at least believe that you have some kind of claim to the property, such as an incorrect deed. This is known as a Hostile Claim.

Why is there something like adverse possession, anyway?

It isn’t a form of punishment to force property owners to give up properties they abandon. The original idea behind most adverse possession laws is to keep land useful. It goes back to Roman times, where laws allowed someone in possession of land for a period of years to claim it in exchange for good custodianship – if the rightful owner did not step forward to claim it first.

In modern times, adverse possession is more likely to come into play with fences and driveways. Here’s an example. You purchase a piece of property and put up a fence, but it actually extends a few feet onto your neighbor’s property. Your mistake was honest. It was based on incorrect property boundary information.

Your neighbor says nothing about it. Remember those 4 elements for adverse possession? Your fence has been right there, both “notorious” and “open” for, let’s say, 12 years. If that period of time exceeds the statute of limitations for trespassing, the law of adverse possession makes you the rightful owner of that few feet of your neighbor’s property.

On the other hand, let’s say you put in a new driveway that encroaches on your neighbor’s property. The cement is dry by the time the mistake is discovered. Although you are legally trespassing on your neighbor’s property with your new driveway, they can give you written permission to keep the encroachment.

This will prevent you from gaining the right to claim adverse possession. You’ll have to do something about that driveway if you want to sell the house. The permission to encroach on your neighbor’s property can’t be passed on to future owners.

These driveway and fence scenarios tend to demonstrate the majority of examples of adverse possession – and that makes sense. It’s not impossible, but it is improbable, that you can trespass onto someone else’s property, improve it, and even pay taxes on it for 7 years without the true owner saying, “Hey, wait a minute!”

Nevertheless, be aware that there is a Florida State law which outlines the way adverse possession can be proved – and used – to make a claim of ownership.

10/04/2017

Online Communities Can Create Physical Neighborhoods

Online Communities Can Create Physical Neighborhoods

Using the power of social media to unite and organize communities

Communities are like minds – the more connections, and the greater the flow of information, the better they function. The Internet, and more specifically, social media, is an excellent way to facilitate community building. Simply put, when people are aware of what’s going on where they live, they’re much more likely to become involved.

In her book, Mastering the Business of Your Association, Jane Bolin explains, “If you want your community to be more engaged, you should communicate with them more. Having a monthly newsletter, a website with ongoing updates, and a way for owners to easily communicate with their board can lead to a healthier association.”

With communication being the key, it’s easy to see why social media can be such a powerful community building tool. Social media provides community members with a platform to discuss their concerns and raise awareness to important issues.

5 tips for using social media to build your community

  1. Find a leader. There needs to be at least one person at the helm, updating social media platforms and keeping efforts focused and organized. The ideal person for this position should not only be well organized and focused, but a strong motivator, with a solid understanding of what it takes to engage people on social media. Within a community association, the Community Association Manager (CAM) is often the go-to partner.
  2. Be relevant. When you boil it down, social media is a platform for stories. Just like any author or filmmaker, if your stories don’t relate to your audience, you’re going to lose them – quick. Is there a littering problem in the neighborhood? Is there a proposal to install a neighborhood pool? Or maybe there’s a block party coming up that everyone needs to know about. The idea is to create a social media location that members of the community feel compelled to check on a regular basis to stay informed.
  3. Stand up for a cause. Life moves fast, time is a precious commodity, and sometimes it takes leadership to get people involved in a worthy cause. With this in mind, you should be on the lookout for issues concerning the community that aren’t being expressed by residents and business owners. This can create an anchor for people to weigh in on a specific issue, or motivate them to raise new concerns.
  4. Get them involved. Social media also offers a terrific opportunity for community members to provide feedback. Consider it as a comment box that will not only make your community stronger, but at the same time let everyone know you care.
  5. Send newsletters. Some people don’t visit social media outlets, however, they do still use email. Newsletters can help expand the reach of your message, while at the same time letting everyone in the community know your efforts are alive and well!

What it all comes down to is…

…Communication! Building a community begins with communication. The goal is to open lines of information between board members and the community at large so people are informed, and therefore motivated to become involved. Fortunately, social media provides a direct link between community organizers and their constituents, so everyone can be on the same page, fast. But communication is only the beginning.

For more information on how to unite your community, and growing your association, download Mastering the Business of Your Association today!

09/20/2017

No Trespassing, Except to Retrieve Golf Balls: Florida’s Interesting Legal Take on Property Law and Golfers.

No Trespassing, Except to Retrieve Golf Balls: Florida’s Interesting Legal Take on Property Law and Golfers.

In Florida, it’s not considered trespassing to retrieve your golf ball from a private yard.

Thanks to the Internet and social media, you’ve no doubt heard some of the collection of strange laws to be found in states across the country. We could start with the first letter of the alphabet and point out that in the state of Alabama, there’s a law on the books making it illegal to drive blindfolded.

To be fair, there’s usually some reasoning behind these interesting laws. There’s a story to hear, and a lesson to be learned. Such is the case of laws involving trespassing in the state of Florida.

Golf course view

Florida gets top billing as the state with the most golf courses. Both weather and lack of elevation are to be thanked for this. The profusion of golf courses has created an impressive inventory of real estate that boasts a golf course view.

What does it do for your property value? There are plusses and minuses, and one reason for this is a law on the books having to do with golfers or golf balls on your property.

Under most circumstances, a person who enters your property without permission is trespassing. This is almost universally against the law. To claim a trespass, you must have warned the trespasser—asking them to stop. To press the claim, there cannot be valid reason for the trespasser’s presence.

Your property rights extend above and below, which means that someone who digs a tunnel under your property, or who flies a kite over your house may actually be guilty—if prosecuted—of trespassing.

Except for a particular instance in Florida

There are some exceptions to the trespass law. Most of them are in the case of an emergency. For example, the police may pursue suspected criminals across your property. You can trespass onto your neighbor’s property to save it if you saw their kitten fall into the pool. These are, for the most part, all practical and easy to understand.

Until you get to golf balls.

Under Florida property and real estate laws, any golf course community must include a section in their deed restrictions, easements, and covenants that allows golfers to retrieve their errant balls on your property.

In plain English, it means that golfers have a legal right—at reasonable times and in a reasonable manner—to come onto your property to retrieve a golf ball. We are unaware of any restrictions pertaining to the loud color of their Bermuda golf shorts contributing to being unreasonable. Just saying.

Most property owners have minimal fencing because they don’t want to block the view. If your lot is fenced or walled, a golfer is generally required to ask your permission before they enter. Otherwise, they’re legally allowed to trespass and retrieve their ball.

Right through the window

As a homeowner on a golf course, you also need to be aware that the same law requiring a golf course community to include a section in their deed restrictions, easements, and covenants allowing golfers to retrieve their errant balls on your property also protects the golf course from liability from golf ball damage.

Most of these documents will include a clause stating that property owners agree not to make any claim or institute any action against the golf club or any other party—other than the golfer who caused the property damage or injury with their golf ball.

Impracticality, not to mention the rare golfer who actually will come forward and admit to shattering your picture window with their ball, is why many Florida golf course community homeowners elect to purchase the appropriate homeowner’s insurance coverage.

Statutes like this one make it clear that real estate laws can be complicated. The attorneys at PeytonBolin understand real estate law and how it can affect communities, condos, homeowner associations and property owners. Contact us today to see how can help guide you through complex legal issues you may be facing.

09/06/2017

6 Tips for Onboarding a Community Association Board

6 Tips for Onboarding a Community Association Board

Setting expectations for new association board members

Anytime you have incoming board members to your community association, it is important to set expectations and outline the duties each person will perform. New board members must be brought up to speed as quickly as possible so that you can go about your business and get things done with the minimum amount of stress possible.

6 tips for onboarding new members

1. Know the association bylaws

Make sure incoming board members have thoroughly read the association bylaws. It may not be the most exciting reading, but understanding the roles and functions of each board member – as well as how business matters should be conducted – is vital to keep everything running smoothly. It’s also important in a legal sense, as you don’t want to mismanage funds or break any laws, however unwittingly it’s done.

2. Outline the functions of each board member

Next to the bylaws, it is most important to ensure each board member has a clear understanding of his or her particular role. In general, there are four primary officers who have the following basic duties:

President:

  • Acts as the leader of the association
  • Presides over association board meetings
  • Serves as general manager overseeing day-to-day matters (unless a manager has been hired)
  • Serves as the liaison between the board and a community association manager (CAM)
  • Communicates regularly with the CAM or other expert if a problem or issue comes up
  • Co-signs checks

Vice President:

  • Supports the president if called upon
  • Performs the duties of the president in the president’s absence
  • Steps up if the president must resign

Secretary:

  • Co-signs checks
  • Oversees giving notice of association board and membership meetings
  • Ensures that meeting minutes are taken and approved
  • Oversees preparation of the membership list
  • Maintains association records

Treasurer:

  • Reviews and understands the association’s financials
  • Reports financial status of the association at meetings
  • Oversees the operating and reserve accounts
  • Keeps and maintains the association’s financial documents
  • Oversees deposits, investments, and the preparation of the budgets
  • Ensures bills are paid
  • Is involved in preparation of the reserve study
  • Co-signs with president or secretary

Your community association may have additional members. If so, those other board members should have clearly defined duties laid out in the bylaws. Some of the duties may be carried out by an outside person, such as an accounting firm or management company, but board members must still keep abreast of what is going on and oversee those bodies.

3. Understand the rules and regulations of your state

Every state has its own laws governing the function of community associations. The board must strictly follow these laws. According to the Executive Council of Home Owners (ECHO), “Board members must be familiar with the declaration, the bylaws, and other controlling documents which form a contract among the homeowners within the HOA. Sometimes the governing documents will conflict with the provisions of the State statutes. In general, the condominium or association statutes will prevail over conflicting provisions of the declaration or bylaws (except when the statute specifically authorizes the declaration or bylaws to do otherwise).”

4. Clearly define your function of as a community association

Ensure that each board member understands the overall purpose of the association. Your main duty as a board is to maintain all common areas, whether indoor or outdoor, including landscaping, pools, lobbies, fitness centers, clubhouses, parking lots, and any portions of the property that is shared among the owners. You must prioritize the most pressing needs and decide where best to devote the association’s resources. Develop a plan so everyone knows which projects will be tackled first and when. The calendar should also include regular inspections as drawn up in the bylaws (or as specified by state regulations) and a schedule for repairs.

5. Develop a plan for communication

One of the worst problems that plague community associations is a lack of good communication between the board and community members. Just like any relationship, if there is no communication, there will be difficulties. Allowing homeowners to rely only on what they can see or hear through the grapevine will quickly foster discontent. You must keep residents abreast of any decisions you make and outline upcoming plans clearly. It’s the easiest way to squash rumors and will help residents see the bigger picture beyond their front yard.

Follow these critical steps to create a smooth transition for each incoming board so that you can best carry out the duties of the community association and those you represent. If you feel that your community association could use some guidance from someone experienced in running community associations, download Mastering the Business of Your Association, by PeytonBolin founder Jane Bolin, Esq. or contact us for more information.

08/23/2017

Is It 15 Days or 60 Days? The One Thing That Changes How Quickly a Landlord Must Return a Tenant’s Security Deposit.

Is It 15 Days or 60 Days? The One Thing That Changes How Quickly a Landlord Must Return a Tenant’s Security Deposit.

Expect it in 15 days if you left the rental exactly how you found it.

Multiply times two. It’s the general rule of thumb to figure out how much it’s going to cost to rent. The majority of residential leases and rental agreements in Florida and elsewhere require a security deposit—which is generally equal to one month’s rent.

Security deposits are intended to cover tenant damage that goes beyond normal wear and tear. It also can act as financial protection if a tenant fails to pay the rent. The money is returned at the end of the lease, but the amount of time the landlord has to return it can vary. Here’s why.

15 to 60 days

That’s the minimum/maximum range a landlord—under Florida law—can take to return a tenant’s security deposit. The clock starts ticking when the tenant surrenders the rental property to the landlord. To be more specific—it means that the tenant has returned the keys and vacated the property. In a perfect world, that starts a 15-day countdown. If there are problems, it can take up to 60 days for you and at least a portion of your security deposit to be reunited. We’ll start with the shortest time and move upward.

  • 15 Days: Congratulations, you’re every landlord’s dream. You both have toured the property and it’s in great shape. The landlord can find nothing out of the realm of “normal wear and tear.” In such cases, the landlord has—under Florida State law—just 15 days to return the security deposit, along with interest.
  • 30 Days: If during the inspection of the vacated property the landlord determines that there is damage beyond normal wear and tear, they have 30 days to give the you written notice. It must be sent by certified mail to your last known mailing address. The letter must follow a format that outlines the landlord’s intention to impose a claim on the deposit, as well as the reason for the claim. This would typically be the charge for repairs or cleaning necessary to restore the rental to its condition at the beginning of the tenancy.If the landlord doesn’t make this required written notice within the 30-day period, they forfeit the right to make any claim against your security deposit at all. The landlord can seek damages. It just can’t be withheld from the security deposit.
  • 60 Days: You have up to 15 days to object to the landlord’s claim or the amount they plan to withhold. Otherwise, the landlord has 30 days from the date of the notice to deduct that amount from the security deposit and return the remainder to you.

This is the law

You should make sure you know and understand all of the statutes If you’re an owner in Florida planning to rent or lease property. Above and beyond the responsibilities of returning the security deposit within 15 to 60 days, you also must hold the total amount in a separate non-interest-bearing account in a Florida banking institution.

At least 75% of the security deposit must earn an annual simple interest rate of 5%. This, and more information for both landlords and tenants, is available as Florida Statutes Annotated § § 83.49 and 83.43 (12).

08/09/2017

The Concept of Core Competency

The Concept of Core Competency

Running an association like a business is worth the effort.

Operating a successful business is easier said than done, especially a business that is run primarily by volunteer homeowners, who may have the passion, but may not have the experience or skill set to bring to the table. But association board members benefit from engaging in certain organizational and business practices to ensure that their association is running smoothly and effectively, like a core-competent organization.

In her book, Mastering the Business of Your Association, PeytonBolin founder Jane Bolin explores the many issues regarding why most community association boards aren’t working as well as they should and could. By following her targeted core operating practices and guidelines, any organization can run more like a successful business.

Deep pockets

Community associations are defined as nonprofits; however, like a business, these associations are responsible for budgets and bank accounts that can be quite large. Associations must also maintain and hire management and staff, and select a variety of vendors. Associations are on the forefront of maintaining (or increasing) the community’s property values and quality of life, and elected officers are entrusted to put the well-being of the association above their own personal gain. Officers and board members should abide by the same rules they are enforcing. That is “good” and legal business protocol.

Unbridled emotion

Successful business boards are not driven by emotion; therefore, neither should community associa-tions be driven by “feelings” that will inevitably compromise results. Why do association officers and board members, many of which are successful in their own business arenas, become emotional asso-ciation members? It’s personal. It is their home. Having outside resources, like general counsel or a Community Association Manager, can help keep organizational practices and rules in focus. These trusted advisors focus on facts, which mitigate emotion, and bring the business at hand back into view.

Property investment

Most community association board members volunteered for positions because they care about fi-nances. No homeowner wants maintenance charges to rise or property quality to diminish. Yet, the truth is, without regular and prudent investing (spending money), property values will decline, and maintenance charges will soar. Smart businesses know they must spend money to make money. So too should association boards. Maintaining landscaping and common areas, carrying the proper insur-ance policies, and thoroughly researching contractors before committing to repair projects are all ways to invest in the association, and its homeowners, while still being fiscally prudent.

At PeytonBolin, we understand that operating community associations can be complicated. That’s why our skilled and knowledgeable attorneys are here to help with all aspects of running your association as a successful business.

07/19/2017

A Guide to Avoid Criminal Charges as a Condominium Director in Florida

A Guide to Avoid Criminal Charges as a Condominium Director in Florida

2017 new legislative changes

Yeah. This a bit tongue and cheek, but the fact of the matter is that Florida law governing condominiums has changed. Earlier this year, the Miami-Dade Grand Jury filed a report about the status of condominium association governance and the ability of the Division of Condominiums, Timeshares and Mobile Homes to regulate the boards and management companies. I wrote an article published in the Florida Community Association Journal about the potential impact of the recommendations of that report. Mostly, my concern is the chilling effect on owners who might think twice about volunteering for the board with these new criminal penalties. After a few renditions of the original bill, HB 1237 was signed by the Governor and is effective July 1, 2017. Now that we have the law in place, I’ll explain how easy it is avoid jail time. 

I’m going to explain what you need to know, but I find it’s always best to start with the foundation. Florida law, before these changes, had provisions that outline a board member and manager’s fiduciary responsibilities. 718.111 states that all officers and directors have a fiduciary relationship to the unit owners. No officer, director, or manager may solicit, offer to accept, or accept anything of value for their benefit or their family’s benefit, from any person providing or proposing to sell services or goods to the association. The change effective July 1 is that the word ‘kickback’ was added here. It’s really a clarification – making it crystal clear that you can’t be bribed in any form or fashion, or solicit any kind of beneficial arrangement. COMMON SENSE! If you do… you may be subject to a civil and now a criminal penalty! Don’t worry. The exception here is trade show or educations programs, and the stuff vendors give you when you are participating in them.

The Condominium Act also references 617.0830 of the not-for-profit portion of Florida Statutes and states that all of the officers, directors, and agents (property managers), shall act in good faith, with the care an ordinarily prudent person in a like position would exercise under similar circumstances, and in a manner he or she reasonably believes to be in the best interest of the association. Okay. This sounds pretty reasonable, and in fact it is. The statute goes on to state that a breach of this standard would be a violation of criminal code, a transaction where a benefit was derived either directly or indirectly, or a reckless act in bath faith with malicious purpose and with disregard of human rights, safety, or property! Again, pretty clear. A board member will be in breach of his or her fiduciary duty if their actions amount to a crime, or a kickback situation, or complete disregard for human rights, safety, or property.

The major changes this legislative session come right after this section and mirror what the Miami Dade Grand Jury report suggested:

1. The forgery of a ballot or a voting certificate. If you do this, it will be a third degree felony.

2. If you steal or embezzle funds, you will be charged with a felony! The degree of felony depends on how much you steal.

3. The destruction or refusing to allow inspection of official records is considered tampering with evidence and is punishable as felony in the third degree or the obstruction of justice!

4 . If you are charged by information or indictment, you will lose your board director position and it will be filled by the remaining board members by appointment.

And good news. The law is clear that anyone with a pending criminal charge may not be appointed or elected to office, and cannot have access to official records except by court order. So, just as a quick aside, is anyone else wondering when pending criminal charges meant you were guilty? I thought every person is presumed innocent until proven guilty? I suspect we’ll have lots of bills to fix this current legislation. Why do I say that? A criminal charge could be driving too fast or not having proof of insurance. This is TERRIBLE legislative drafting.

So how do you avoid criminal penalties? This is a two-part answer. The first part is easy. Do the right thing! Don’t steal. Don’t forge signatures. The second part requires you understand the system and process of the association or your management company in regard to official records and how records are kept. The first thing to identify is: Where the records are kept? If they are digital, on what servers? Who has access to them? Are there backups? If you are encountering the request for official records, the association only has 10 days to respond. Who gets those requests? Who is ultimately (and I mean 100%) responsible for making sure a response is sent in 10 days? You need to get curious about how the systems work, and if you find there isn’t a system, then this is your opportunity to get that cleaned up. After all, you don’t want to have any chance of being charged with tampering with evidence or the destruction of justice.

If you have questions about this article, contact me [email protected].

07/05/2017

The Recipe for Better Association Board Meetings

The Recipe for Better Association Board Meetings

5 ingredients for a more efficient community association board meeting

Let’s face it: community association board meetings can be difficult to get through. Bring a room full of volunteers together and you’re likely to get as many opinions as occupants in the room. It’s usually not a recipe for a quick and efficient board meeting. Organization and planning are essential in order to avoid a disaster. According to Neighbor Huddle, “When your time is spent in unorganized, lengthy, and chaotic meetings, not only is the enthusiasm for active participation of current board members diminished, but you also discourage many future volunteers from sitting on the board.”

We put together 5 ingredients to help you get the business of the association done in a timely, more efficient manner.
1. Plan the menu

Nothing can throw a meeting into chaos more than going into it without a strategy. Develop a plan that outlines exactly what you need to accomplish. Then put together a packet and send it out to each board member well in advance of the meeting.

Meeting packet checklist:

# Agenda

# Previous meeting minutes

# Current financial statements

# Items that require action or a decision

# Items from the administrative and maintenance calendars

# Information or research needed to make a decision

2. Write down the recipe

Every board meeting must have a written agenda prepared by the president of the association, which should be posted or sent to each board member in advance.

A proper agenda should include the following:

# Call to Order

# Approval of Previous Minutes

# Treasurer’s Report with summary of cash balances & expenditures

# Property Manager’s (or President’s) report

# Committee Report(s)

# Old Business

# New Business

# Adjournment

3. Bring all the ingredients to the meeting

Make sure you have done any research on important matters and include that information in the advance packet. This will ensure the board is able to make good business decisions. You don’t want to waste time during the meeting, or worse, put off a decision because you haven’t done efficient research.

4. Plan for open items

According to NeighborHuddle.com, “The single most effective strategy that the board can use to run an organized and effective meeting is to insist that any items open for discussion at the meeting be submitted in writing early enough to be presented in the package.”

Again, you’ll need to make sure that submitted proposals have all documentation needed in order to make a decision, including information regarding expenditures, bids, contracts, or estimates.

5. Watch the timer

HOALeader.com recommends that you, “Tailor your agenda to the meeting, and assign time frames for agenda items.”

Determine how much time you will spend on each agenda item. In general, the Property Manager’s/President’s Report is where the bulk of the motions are made. If more than one Committee will be giving a report, factor that extra time into the agenda. During the meeting, keep track of the time and don’t let the board members go down conversational rabbit holes. Also, understand that not all the items will necessarily be resolved at this meeting. Some will have to be tabled until sufficient research is completed.

Follow this recipe and you will have a much more efficient and successful board meeting.

06/22/2017

4 Disclosures Every Florida Real Estate Seller Must Make

4 Disclosures Every Florida Real Estate Seller Must Make

 Be sure you’re protected before you make that purchase.

The Sunshine State has a booming real estate market, and why not? Sun, sand, and surf are big sellers, and we have plenty of each. It’s tempting to hop into a purchase fast so you don’t miss out, but whether you’re buying residential or commercial property, there are certain obligations that you should be aware of before you sign on the dotted line. Here are four key seller obligations that need to be fulfilled before you seal the deal.

1. What’s wrong with the property

In the 1986 Florida Supreme Court landmark case, Johnson v. Davis, the court made clear that latent defects must be disclosed to the buyer prior to the seller entering into a real estate sales contract for residential property.

If the seller knows what’s wrong, he or she needs to disclose that to the buyer.

Defects include: water leaks; roof issues; asbestos, lead, and mold; electrical wiring issues, cracks in foundation; insect infestations; and issues regarding title to the home or property.

2. Whether the buyer is required to be part of the homeowners’ association

Is your dream home located in a community with a homeowners’ association? If so, according to Florida Statue 720.401, “A prospective parcel owner in a community must be presented a disclosure summary before executing the contract for sale.” (Read the necessary exact wording.)

3. What the dangers of radon gas are

According to Florida Statute 404.056(5), notification of existing radon gas needs to be on at least one document, form, or application executed at the time of, or prior to, contract for sale and purchase of any building or execution of a rental agreement for any building.”

The law states that the wording must contain:

“RADON GAS: Radon is a naturally occurring radioactive gas that, when it has accumulated in a building in sufficient quantities, may present health risks to persons who are exposed to it over time. Levels of radon that exceed federal and state guidelines have been found in buildings in Florida. Additional information regarding radon and radon testing may be obtained from your county health department.”

4. The possibility of coastal erosion

In a state surrounded by water, coastal erosion can be a threat. Is the real estate you’re considering partially or totally seaward of the coastal construction control line as defined in section 161.053? If so, the reseller needs to give a written disclosure statement to the prospective purchaser.

Also, according to Florida Statues: “Unless otherwise waived in writing by the purchaser, at or prior to the closing of any transaction where an interest in real property located either partially or totally seaward of the coastal construction control line as defined in s. 161.053 is being transferred, the seller shall provide to the purchaser an affidavit, or a survey meeting the requirements of chapter 472, delineating the location of the coastal construction control line on the property being transferred.”

To ensure you’re not caught by surprise when purchasing your next piece of the Sunshine State, it pays to connect with a legal firm that knows the ins and outs of Florida real estate law. At PeytonBolin we can make the selling and buying process smooth sailing – give us a call today.

06/07/2017

What’s in Your Wallet? Why HOA Boards Can’t Take Liability Insurance Lightly.

What’s in Your Wallet? Why HOA Boards Can’t Take Liability Insurance Lightly.

The association board members themselves can be named in lawsuits.

A Homeowner’s Association (HOA) is made up of a group of volunteer homeowners. It’s often a thankless task, where the only guaranteed reward is knowing they’ve helped maintain and improve the value of their neighborhood. The last thing your volunteer board members deserve is a personal financial loss as a result of their participation.

It’s why community associations absolutely must carry liability insurance. Lawsuits filed against HOAs and other community associations are a common occurrence. Often, one or more of the board members are named in the suit, too. The overall liability insurance policy an association carries covers lawsuits and medical expenses filed by people who are injured in the common areas maintained by the association. While that’s important, there’s a component of protection that’s even more crucial.

Individual association board member liability

Take a deep breath and relax if you’re a new HOA member. Lawsuits against individual board members are difficult to advance in court. In most cases, a lawsuit is brought against the community association as an entity. It’s not easy to prove the cause of the suit was the responsibility of a specific board member—unless there is sufficient evidence that the board member knowingly breached their fiduciary duties.

Nevertheless, it’s no reason to be lax in making sure your association has adequate liability insurance. There will still be legal costs involved. You’ll need your attorney’s assistance with the process.

Directors and Officers liability coverage

Directors and Officers (D&O) coverage is the part of the HOA liability insurance policy that protects board members themselves. It covers legal expenses that result from a lawsuit that names an individual board member.

Don’t assume your association insurance coverage includes this, or that it is adequate coverage. Task your insurance representative with making sure this important protection is in place and up to date.

What’s covered?

The last thing you want to discover is that your assumptions of coverage are incorrect. D&O insurance policies typically cover all board members. Is a member of your board a non-owner? Check to see if the policy covers them.

Some D&O policies cover community association employees, such an administrative assistant. If you have a large HOA with extra volunteers who form committees, they also might be covered. Don’t make any assumptions. Find out.

What’s excluded?

Generally, a D&O policy pays for the legal costs and fees to defend your board members against legal actions. It also pays any judgement amount. Go over the details of the policy. Regardless of whether the lawsuit goes to court, the board member will still have to retain legal counsel. The D&O policy may only cover this if the case goes to court and there’s a final ruling.

It’s also important to know when the coverage will be paid. A board member will have to foot the bill out of their own pocket if your policy only reimburses after the conclusion of the case.

And, like most insurance policies, there will be monetary limitations to coverage. You owe it to your volunteer board members to let them know the extent of coverage they have. The D&O policy might also exclude certain types of claims. It might cover a board member’s breach of fiduciary duty—but the protection may not include negligence.

Look at the value

It’s easy to look at association liability insurance as an expense. After all, your association has to write a check for it. So, it’s also easy to search for ways to reduce the cost of maintaining HOA liability insurance by skimping on coverage. Do you really need to make sure your D&O policy also covers committed volunteers?

A single lawsuit against a board member, an employee, or anyone acting on behalf of the community association (such as members of a committee), can easily cost thousands of dollars in legal fees and court costs. That dollar figure becomes exponential if there’s a damage award. Even if the lawsuit is dropped, there’ll still be attorney’s fees to pay.

The liability policy payment gets entered on your books as an expense. Consider it an investment.

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