Pavilion from the Ocean

Pavilion from the Ocean

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Approvals to Alter Condominium Property Must be Made at a Properly Noticed Board Meeting

Question: I regularly attend the board meetings of my condominium association. When I cannot attend, I make certain to read the minutes when they are posted. In the association’s quarterly newsletter, the president announced that the association would be changing the configuration of a conference room to allow for storage. Though the board is authorized in our declaration to approve material alterations, there was no vote taken at a board meeting on this. I believe the board is making decisions via e-mail, which I understand is prohibited by statute. To confirm this, I sent the association a certified letter requesting copies of all email communications between the board members and the property manager. Thirty days has passed since I sent the certified letter and I have not been provided with access to the e-mails. Shouldn’t they have provided me access within 30 days or do I have to wait 60 days before I can take further action?  (T.T. via e-mail)

Answer: The Florida Supreme Court recently certified condominium and planned development law as an area of legal specialty. I was given the privilege of being appointed to the committee which will write the test that must be passed by lawyers who want to be certified as specialists in condominium law. Maybe we can use your question for the test, as it raises many interesting, inter-related and frequently encountered issues.

The Florida Condominium Act was amended in 2014 to provide that members of the board may use e-mail as a means of communication but may not cast a vote on association matters via e-mail. In my opinion, this was the law before the statute was amended. In your case, if the board is given authority by the declaration of condominium to approve alterations to the condominium property, those decision must be made at a properly noticed board meeting. Members (unit owners) are generally entitled to attend board meetings and speak to items the board will be voting on.

Whether the e-mails you have requested are “official records” of the association is a matter of some disagreement. The Condominium Act does not specifically address this issue. The Division of Condominiums, Timeshares and Mobile Homes (“Division”), the government agency that is tasked with oversight of condominium associations in Florida, issued an arbitration decision on the subject. The finding in that case was that e-mails between directors that are only on the directors’ personal computers are not “official records” of the association and therefore not subject to inspection by other owners. In a footnote, the arbitrator stated that his conclusion might be different if the association owned a computer, or if e-mails were printed up and passed around for discussion at a board meeting. There is also a question of whether the existence of emails on a management company’s computer has any bearing on the issue. Arbitration decisions are not binding legal precedent. The legal question on emails remains open, and is hotly debated from various perspectives.

To the extent your request for access to the e-mails is a proper request to inspect official records, the association must provide access to official records within 5 business days of receipt of a written request. After 10 days the association is presumed to have willfully disregarded the request and violated the statute. That presumption can be rebutted by the association.

Requesting access to official records is different than making a “certified inquiry.” The Condominium Act states that an association must respond to an “inquiry” sent by certified mail from a unit owner within 30 days of receipt. The Association must either provide a “substantive response” or notify the requesting member that the association has referred the matter to the Division, or legal counsel. If referred to the Division, the association must provide a substantive response within 10 days of receipt of an answer from the Division. If referred to legal counsel, a substantive response must be provided within 60 days of the original receipt of the inquiry.

The cheapest homes in Miami are quickly getting more expensive

Miami-Dade home prices rose 6.4 percent compared to last April of last year

Prices for the low-cost homes are rising twice as fast as high cost homes

Nationally, prices increased by 5 percent over last year

Miami home prices continued to rise this spring, according to a report released Tuesday by in the S&P/Case-Shiller Home Prices Indices.

Selling prices of existing homes rose 6.4 percent in April over the same period in 2015, according to the report. The data covers the Miami metro area — essentially Miami Dade County.

Nationally, the price of existing homes rose 5 percent during the same month.

“The housing sector continues to turn in a strong price performance with the S&P/Case-Shiller National Index rising at a 5 percent or greater annual rate for six consecutive months,” said David M. Blitzer, Managing Director and Chairman of the Index Committee at S&P Dow Jones Indices. “The home price increases reflect the low unemployment rate, low mortgage interest rates, and consumers’ generally positive outlook.”

But the numbers don’t tell the full story, according to Dr. Svenja Gudell, chief economist for Zillow, an online real estate tracking service.

“Today’s Case-Shiller data shows continued fast growth in the housing market, but there is also a growing divide between the top and bottom of the market that the Case-Shiller numbers don’t reveal,” said Gudell “Home values for the least-expensive homes are growing twice as quickly as they are for the most-expensive homes, and the gap is widening.”

In Miami, the gap is clear. In May, sales for homes in Miami-Dade priced between $200,000 and $600,000 grew 5.9 percent, according to the Miami Association of Realtors. In contrast, homes in the bottom tier ($175,200 and below) grew 12.5 percent.

At the same time, the total number of existing home sales in Miami-Dade slid to 2,435 in May, down 10.4 percent annually, according to data from the Miami Association of Realtors. Earlier this month, Trulia named Miami one of the most unaffordable housing markets by in the country.


An Opinion By Jan Bergemann
President, Cyber Citizens For Justice, Inc.

Published June 25, 2016
It seems that our legislators in Tallahassee love to use the word "reasonable" in the statutes. There would be nothing wrong with it -- if the people interpreting these statutes would really understand the meaning of this obviously "complicated" word.

This is, according to Merriam-Webster the simple definition of the word REASONABLE:
  1. fair and sensible
  2. fairly or moderately good
So -- what's so difficult to understand?

In my opinion many of the "reasonable" rules created by certain attorneys, community association managers and board members are anything but reasonable.

A "reasonable" rule should serve a purpose that is fair to everybody having to deal with such rules, not just one party making rules to suppress the freedom of the other party.

Yes, it can be reasonable to create rules that make sure that a person taping a meeting is not disturbing the meeting, like making noise and/or wandering around during the meeting. That makes sense, assuring a meeting can be conducted without being disturbed by an overeager owner pointing the camera in peoples' faces.

But what purpose does it serve to require an owner to give the manager a 24-hour written notice that he/she intends to tape the meeting? I'm sorry, but such a rule is absolutely unreasonable -- and plainly makes no sense. It doesn't serve any other purpose but to make it difficult for any owner to tape the meeting.

Then you see all the rules created by attorneys and dictatorial board members in regards to the statutory requirements of the law to allow the owners to speak at meeting. These "rules" are created to circumvent the Florida statutes -- nothing else.

And as an additional intimidation factor the threat of fines is added, telling the owners that they are being fined -- right or wrong -- if the board doesn't like what the owner has to say -- and when he/she says it. This is a typical example why we should do here in Florida the same owners did in Virginia and Rhode Island: Go to the Florida Supreme Court and enforce our constitutional rights: Only government entities can fine citizens, contract or not! These fines are only serving one purpose: To take away rights of owners given to them by the statutes. Make no mistake: Clear violations of the deed-restrictions can easily enforced by the association in a court of law -- no fining provisions needed!

These rules, written by association attorneys who should know better, and "enacted" by dictatorial board members without informing the membership prior to enactment, are becoming more and more common in Florida's community association. They are clearly aimed at taking away the rights of owners -- what little rights they have in the first place.

After reading this example of rule-making "enacted" by the board of the CHAPEL TRAIL OWNER'S ASSOCIATION, INC. and most likely written by attorney Howard Perl from the law firm of Becker & Poliakoff (the regular association attorney) I would like you to tell me which one of these rules you find reasonable. For your information, these rules were mailed to the owners without any cover letter, dates or signatures. I guess nobody felt comfortable enough to put his/her signature under such dictatorial -- and definitely unreasonable -- rules.


Free Condominium educational Training on “The Condominium Complaint Process/Division’s Jurisdiction”

Hosted by: the City of Hallandale Beach Police Department and presented by the Department of Business and Professional Regulations, Division of Condominiums, Bureau of Compliance.  The training will consist of a presentation and cover a question and answer session with the representatives from the DBPR and Hallandale Beach Police Economic Crimes Detectives.  Educational Material will be provided.

Monday June 27 2016
5:30pm to 7:30pm

Hallandale Beach Cultural Center
410 SE 3rd Street
Hallandale Beach, FL 33009

If you have any questions, please contact Major Pedro Abut at 954-457-1426 or email at or Lazaro Gonzalez at 954-202-6821 at email

Miami home sales down, but prices still up. How long can it last?

Residential sales fell in Miami in May

Prices are still going up, for now

Broward had a better month overall

It’s a trend that can’t last forever: Home sales in Miami-Dade County are falling, but prices are still going up.

Total existing home sales slid to 2,435 in May, down 10.4 percent annually, according to data from the Miami Association of Realtors. Single-family homes — down 7.2 percent — fared better than condos, which fell 13.3 percent. (Existing condos are competing with a glut of new luxury construction.)

Two factors are contributing to the residential slowdown, which comes after three years of heady sales: First, a strong dollar is crippling the foreign buyers who drove South Florida’s latest real estate boom. Second, investors and flippers have already snapped up much of Miami’s shrinking foreclosure inventory, which ballooned during the recession and fueled sales.

Foreclosures fell from 25.1 percent of all sales in May 2015 to 18.9 percent of sales in May 2016.
Meanwhile, prices are still rising.

In Miami, single-family home prices rose to $295,000, up 4.6 percent year-over-year. Condo prices hit $214,250, a 2.5 percent annual gain.

That makes sense, experts say. For now.

“Historically, even after there has been a noticeable change in the market, home prices continue to increase for six to 12 months despite the shift in supply and demand,” said Jack McCabe, a real estate analyst. “If you see a big change in the real estate market, it takes a long time to sell. It’s not like stocks or commodities.”

Sellers are already starting to respond, especially in the luxury market, said Ron Shuffield, president of EWM Realty International.

“We’re seeing a lot of people reducing prices as inventory goes up and sales go down,” Shuffield said.

About 37 percent of Miami-Dade listings over a million dollars have seen price reductions since Jan. 1, according to research conducted by EWM.

“The message we’ve been taking to our sellers since last August is that we’re returning to a more normal market,” Shuffield said. “These are still great numbers that we’re seeing.”

The overall trends suggest single-family homes remain a seller’s market while condos are firmly in buyer’s territory.

Realtor Jeff Morr said he believes the U.S. presidential election might be playing a role in the slowdown and that important indicators, including low interest rates, remain positive.

Miami set an annual record for residential sales in 2013, and came close again in 2014 and 2015. Coupled with flat wages, the real estate boom has helped make Miami one of the least affordable cities in the nation.

I think that the election year really threw off some people’s confidence, more the media than anyone else. Jeff Morr, Realtor

“I think that the election year really threw off some people’s confidence, more the media than anyone else,” Morr said. “We still have foreign buyers coming to Miami. ... We’re a really undervalued market compared to other similar markets.”
While Miami’s luxury market is cooling down, there’s no sign of relief for starter and mid-market homes.
Because of a lack of available land and high construction costs, builders haven’t been able to put up much in the way of affordable homes. The low inventory means strong sales.
Sales for single-family homes priced between $200,000 and $600,000 beat the rest of the market, growing 5.9 percent in May. There’s no sign of much new supply entering the pipeline at that price point.

“The mid-market homes are going to maintain value and even go up,” McCabe said. “It’s the new construction, luxury market that’s going to suffer, at least the projects with middling design or off-the-water locations. A lot of them are not that outstanding. ... When the market crashed last time, every property went down. That’s not going to happen this time.”

Stability in Broward

Broward County, which is less dependent on foreign buyers, had a better month.

In Broward, single-family home prices rose to $312,500 in May, up 7.8 percent annually, according to the Greater Fort Lauderdale Realtors. Condo prices hit $145,000, up 7.4 percent for the year.

Sales were up, too, likely driven by suburbanites seeking good school as the summer buying season gets underway.

Broward saw 1,671 single-family home sales in May, up 15 percent from April and 9.5 percent from May 2015. There 1,570 condo sales, down 1.6 percent compared to May 2015 but up 9.5 percent for the year.

The hot market is being driven by several trends also popping up at a national level: Homebuilders haven’t produced much stock at the lower end of the market. That’s driving down inventory and causing a mad scramble for the few available starter homes.

In Broward, single-family homes stayed on the market for an average of 41 days in May, down from 50 in May 2015. Nationally, homes last just 32 days on the market. Broward’s inventory for single-family homes has fallen to 3.8 months worth of supply. A healthy market generally has between six and nine months.

“Buyers struggling to find an affordable home to buy will continue to do so,” said Svenja Gudell, chief economist of real estate website Zillow, in a statement. She added that the housing market had become “hypercompetitive” for buyers seeking starter and other well-priced homes.

County Commission approves proposal to create police network to combat fraud in condominiums

Article Courtesy of El Nuevo Herald (Translated by Google)
By Enrique Flor

A police initiative to create a network specialized in the fight against fraud in Miami-Dade condominiums was approved Tuesday by the county commission.

The proposal to create a network between different police departments in Miami-Dade was approved by the unanimous vote of the 13 commissioners, in the midst of a crisis characterized by abuses against residents of several residential complexes.

Miami-Dade prosecutors and legislators seek solutions to fraud in condominiums

In its preamble, the resolution presented by Barreiro refers to the avalanche of complaints of electoral fraud and irregularities in contracts worth millions ended up benefiting some businesses at the expense of residents.

In March, a series of newspaper El Nuevo Herald and Univision 23, revealed the rampant forgery of signatures on the ballots in condominiums The Beach Club at Fontainebleau and dreams in Hialeah.

This fraud favored, for example, a board was kept in power after having benefited a company in a $ 5.2 million to repair roofs at The Beach Club. However, the investigation revealed that the favored company had competed with two other paper companies.

The investigation also documented the notary fraud in dozens of sworn statements, notarized by Carmen Aslan, an employee of FM Law Group, a firm of lawyer Hector Martinez. That law firm generally represents condominium associations managed by Sunshine Management Services.

The investigations led to the massive mobilization of residents outraged by the fraud. In the case of The Beach Club, the then members of the board resigned and canceled its contract with Sunshine Management Services in the administration of the condominium.

The creation of the police network adds to the legislative initiative of the Miami-Dade delegation to present a comprehensive reform to combat fraud condominiums.

State Representative Jose Felix Diaz and Sen. Miguel Diaz de la Portilla plan to present in November substantial changes to criminalize the violations detected in several condominiums.

In fact, the last two lawmakers along with Sen. Rene Garcia and representatives of the legislator Javier Rodriguez this week with Miami-Dade State-attorney Katherine Fernandez-Rundle, and part of his legal team will develop initiatives to combat fraud condominiums while working on the development of legislative reforms.

One of the proposals Fernandez-Rundle aims to create is an elite team like the prosecution created in 2004 to combat auto insurance fraud in Miami-Dade.

Change Condo Law: Hold Individual Board Members Accountable When They Break The Law

Please sign this petition for our lawmakers to change Condo Law. The actions taken by the DBPR to resolve complaints are hurting owners because when Board members break Condo law the Association as a whole is fined. 

Will Airbnb divulge mysterious owners to Keys tax collector?

“They have to provide me with more information”

Class-action lawsuit under consideration

Airbnb, a major online vacation-rental site, offers more than 300 Florida Keys listings that include bedrooms, cabins and docked boats.

What Airbnb will not offer Monroe County is information on its client "hosts" — property owners who advertise and book vacation rentals in the Keys, county officials say.

"They have to provide me with more information," county Tax Collector Danise Henriguez. "There are too many things we just don't know."

Wednesday in Key Largo, Monroe County commissioners will review a proposal to initiate a class-action lawsuit against Airbnb in a bid to force the company to be more forthcoming about the unit owners who use the firm's online booking platform.

Airbnb last month sent the Monroe County Tax Collector's office a "voluntary collection agreement" with the company offering to collect tourist-tax money from unit owners and forward it to the county.
But Airbnb insists on keeping the unit owners "anonymous" with no "personally identifiable information" on their names or addresses where the rental units operate
"They want to send a lump sum every month and have us accept that," Henriquez said. "I would lose total control."

"How do we know if they're remitting the correct amount of tax?" she said. "Are these units in areas where they are legally allowed to rent? Do they have a homestead exemption? I don't know."

"County staff shares Mrs. Henriquez's concerns," County Attorney Bob Shillinger says in an agenda report. "Staff is concerned that entering into the proposed agreement as drafted would facilitate violations of the county's vacation-rental ordinance."

"Airbnb's willingness to enter into an agreement to pay tourist-development taxes would seem to suggest an acknowledgment of its liability for paying bed taxes," Shillinger noted. Some other Florida counties reportedly have accepted Airbnb's terms.

Henriquez said without knowing the rental addresses, her office cannot properly distribute the tourist taxes to Keys cities or the unincorporated county.

Vacation rentals in the Keys have been a controversial topic for years. Advocates say they provide unique accommodations that attract visitors and support property values. Critics say the short-term rentals of living units deprive local workers of affordable housing and can turn a quiet neighborhood into a party spot.

In August 2015, Airbnb settled five Key West code cases where owners advertised vacation rentals without a required city permit.

Henriquez's office took over audit and enforcement of tourist taxes countywide in January 2015 from the County Clerk's Office. The nightly bed tax is 12.5 percent; 7.5 percent goes to the state, 5 percent to the county, Henriquez said.

"We've collected more than $250,000 of uncollected revenue and opened up more than 1,000 new accounts to make sure they're in compliance," she said.

The tax collector's office accepts tips on possible illegal vacation rentals through e-mail or over the phone. "We act on every one," Henriquez said.

In 2010, Monroe County was the lead plaintiff in a class-action suit against several online travel companies over unpaid tourist taxes. Of the $6.5 million settlement with several local governments, Monroe netted about $1.2 million after legal fees.

At Wednesday's County Commission meeting at the Murray E. Nelson Government and Cultural Center on Key Largo, Shillinger will ask the board members if they want to negotiate a contract with the attorney who won the 2010 case.


By Jan Bergemann

The big number of arbitration cases over “material alterations” is a clear sign that these two simple words can cause a lot of havoc. One would think that the two words “material” and “alteration” would be self-explanatory. That’s clearly not the case, as every community association lawyer can tell you. And even arbitrators and judges don’t always agree with each other.
The actual explanation in simple English would be: Change of material – right? But it seems nothing is easy in community associations.
In his “Handbook” former Condo Ombudsman Virgil Rizzo gave this explanation – hoping to explain these two seemingly problematic words in layman’s terms:
      “A material alteration of the common elements is covered by Florida Statutes Section 718.113(2) and permitted in a manner provided in the Declaration of Condominium. If the Declaration is silent regarding material alterations, an affirmative vote of 75% of unit owners is required.
       A material alteration or addition means to palpably or perceptively vary or change the form, shape, elements or specifications of a building from its original design, plan, or existing condition, in such a manner as to appreciably affect or influence its function, use or appearance.
Seems easy – does it? In reality it isn’t – mark my words.
We see only too often that board members think they can just change the carpet floor and replace the carpet with tiles. Huge mistake, especially if just one of the owners doesn’t like tiles – and the fight is on. In many cases it’s not only the legal fees causing serious financial damage to the association; it’s as well the fact that most complaints are only filed after the work is done and the money spent.
The reason for creating the requirement of members’ approval is pretty obvious: People bought their home after looking at the surroundings of their new home – and the way things look when they buy their home.
Let’s say a potential buyer is impressed with the nice red carpet in the hallways. He/she buys the unit relying on being always greeted by a plush red carpet in the hallway. One day some board members feel that carpets are quickly used up by the heavy traffic in the hallway and opt to replace the fading carpet with Spanish tiles. It might be a smart financial decision in the long run, but a violation of the Florida statutes in the eyes of the red carpet-lover. And the war is on!

Do you think that “material alterations” should require a membership vote?

A makeover for North Beach?

Master plan was drafted by urban planners at Dover, Kohl & Associates

Calls for redeveloping 71st Street into a main street, town center

Creation of historic districts would protect architecturally significant buildings

The first draft of a master plan for the neighborhood in the northern section of Miami Beach includes more bus and bike lanes, plans for creating local historic districts and ideas for creating a stretch of taller, mixed-use buildings as part of a town center along 71st Street.

Urban planners at Dover, Kohl & Associates have spent months studying the area, talking to residents and working with consultants to get a sense of what the community wants and what it needs.
Among the general ideas in the first draft:

▪ Make a town center: Redevelop 71st Street into a main street for the neighborhood, with taller mixed-used buildings, a new parking garage, a reimagined use for the 72nd Street surface lot and a redeveloped Byron Carlyle Theater. The taller buildings, possibly up to 12 stories, would have setbacks at the fifth floor to prevent the buildings from having an overpowering effect from the street level.

▪ Mobility: Install new crosswalks, create protected bike lanes, make dedicated bus lanes.

▪ Protect neighborhoods: Create local historic districts on Normandy Isle and in North Shore that would protect architecturally significant buildings from demolition. Also create conservation districts that don’t have demolition protections but provide design guideline for new construction. North Beach contains a rich stock of Miami Modern and late-era Art Deco apartment buildings. Incorporate affordable housing, perhaps through inclusionary zoning.

▪ Utilize public lands: Reimagine use of 72nd Street surface parking lot, which could include park space or a civic building. Create a plan for developing eight half-blocks of public land on upper Collins Avenue, which could include parking, mixed-use buildings, a community garden and a hotel.

▪ Build to last: Incorporate resiliency measures, such as building higher and raising seawalls. Widen the beach to help deal with potential storm surge. Raise historic facades.

The planners summarized these concepts for the City Commission and for the public this week. They will further refine ideas and take input as they prepare a final draft to present to the commission in the fall.

Jason King, a principal at Dover, Kohl & Partners, told commissioners he saw hundreds of residents participate in the public input process — more than in other communities like Dallas or Richmond, Virginia.

“We did not get this many people,” he said.

About 175 residents came out Tuesday night to see the draft at a community meeting in North Beach.

Afterward, Paul Lefrak said he’s glad to see interest in enhancing the neighborhood but doesn’t want it to lose its charm and diverse character, particularly if redevelopment leads to higher rents.

“I would like to see North Beach retain affordable housing for working people,” said Lefrak, who rents. “My fear is that people will be priced out of the area.”

Those interested in reading the full draft can find a downloadable version at

How high are Miami rents?

Despite a decline in rents over the past year, Miami still rates as the most unaffordable city in the U.S., according to a report released Thursday by Trulia, an online resident real estate site. And the situation has worsened in the past year.

At a median rent of $1,950, only 6.9 percent of the Miami metro area’s rental properties are considered “affordable” in relationship to income. That’s a drop from 8.8 percent in April of 2015, when Trulia conducted its previous study.

That’s significantly worse than in New York and San Francisco, where wages are higher. In New York, 19.6 percent can afford the median rent of $2,354; in the Bay City, 22.2 percent can afford the median rent of $3,500.

Miami-Dade Commission Chair Jean Monestine and other members of the commission are working on programs to combat the high cost of living.

“We have to view housing as a commodity that is integrated into our economic development strategy,” said Commissioner Danielle Levine Cava. “We can’t really think that the market will take care of it on its own. It’s important that we’re aggressive in finding ways to ensure affordable housing is available so that we can grow our economy.”

Last year, the commission voted to amend the Affordable Housing Trust Fund to set aside 50 percent specifically for very low- and extremely low-income individuals and families. The fund provides financial resources to facilitate the building of affordable housing for low- to moderate-income households.

But, said Cava, “the Affordable Housing Trust Fund is only as good as how much we choose to fund it. We just need to bite the bullet and put a significant amount of money into the fund.”

For millennials, renting is more expensive than buying, according to Trulia study released in 2015. But housing stock in affordable price points remains extreme tight. A similar study conducted by Zillow for Bloomberg listed Miami as the most unattractive rental market for millennials.

According to Dr. Edward Murray, an expert housing market issues in South Florida at Florida International University, many millennials are looking to suburbs like South Kendall, Homestead and Miramar for affordable housing.

“The job centers are largely in the downtown central business district, which is where all of the high-end luxury housing is being built. There isn’t even a supply there to begin with, which means that young professionals are having to live further out,” Murray said.

But it’s not a sustainable solution, Murray said.

“Once you hit a certain level of cost-burden relative to housing cost, at around 50 percent, that’s when you say ‘enough is enough,’” Murray said. “You move on to another part of the country.”
According to Murray, approximately 35 percent of all Miami renters have already exceeded the 50 percent-threshold.

“Millennials are very conscious of cost, even more so than their parents. When they look at housing, they absolutely look at price points. They know what they are able to afford,” Murray said.
Overall, the Trulia study found that rents in the 25 metro areas with the largest rental markets have declined 1.6 percent compared to last year. Across the board, however, rents are high relative to historical pricing.

You get what you pay for: ACTUAL LEGAL OPINIONS?

By Jan Bergemann

I see it all the time: Boards asking the association attorney for a legal opinion often don’t really want a real interpretation of the laws and/or governing documents. More often they just want a “legal confirmation” of the way they want to push their “rules” – or the laws they make up.
And – make no mistake – there are just too many lawyers and law firms who don’t mind giving the board in writing what they want to hear – no matter right or wrong. And these lawyers are only too happy to confirm what the board members want to hear because they will often reap the benefits of their “twisted” opinions caused by owners filing lawsuits because they totally disagree with the “opinion” of the association lawyer. And the association attorney makes lots of money – no matter win or lose!
And since the Florida BAR is just a joke when it comes to regulate its members, these attorneys will get away with it, even if their interpretations are plainly ridiculous.

I have seen “opinions” written by so-called specialized community association attorneys that made me laugh.

I agree” Many of the laws are vague and allow various interpretations because of the choice of words used  in the statutes. But when it becomes obvious that the lawyer’s “opinion” was just written to please the board. It should be called “malpractice” – and not a legal interpretation.

Developer Drops Plan for Contentious Sunset Harbour Luxury Condo Tower

Even by Miami's usual standards for knock-down, drag-out development fights, the political brawl over a proposed luxury condo tower in booming Sunset Harbour has been especially bare knuckled.

First, Miami Beach Mayor Philip Levine recused himself from the deal in March because he owns property nearby. Then, when Beach Towing began fighting the plan, the developers went nuclear and accused the tow service of operating without a valid license for decades. The tow operator and developer ended up tangled in civil court. 
Well, most of that drama is dead for now. Earlier this week, the project's developers quietly asked a city commissioner to withdraw a request for a height variance for the condo tower, effectively killing the plan. 
"Unfortunately, we had broad support from our neighbors but minority dissenters had some considerations that we tried to address," says Dan Marinberg, an attorney with the developer, Deco Capital. "At the end of the day there was no compromise we could reach."
The project, which was bankrolled by New York-based billionaire Marc Rowan, would have built a 90-foot tower with 15 luxury condos and several blocks of storefront retail along Purdy Avenue. Rowan's group, Deco Capital, assembled eight properties for a development called Sunset Harbour Residences. 
But the project met political turbulence from the start. First, the mayor asked a state ethics board to rule whether he should sit out voting on the deal because he owns millions of dollars worth of Sunset Harbour property. The state said Levine was fine, but the mayor recused himself before Miami-Dade's own ethics board could rule on the question.
Behind the scenes, a blistering fight erupted between Beach Towing and Rowan's group. The tow company owns a restrictive deed on one of the Purdy Avenue properties and demanded a big fee to sign off on the project. Instead, the two ended up in court. 
Amidst that legal fight, Rowan's group filed a complaint with the city citing decades-old records they said proved Beach Towing never had proper permitsto run their towing operation
Further complicating matters, Sunset Harbour Residences would have nearly doubled the current height restrictions in the Beach, so city commissioners would have had to sign off on the plan. That lead to more in-fighting and a deluge of emails from residents already fed up with street work and development in the area.
The developers threw in the towel after the latest failed mediation meeting with Beach Towing last week. In letter to commissioners sent yesterday, Deco Capital said that it felt "the appropriate way forward was to respectfully withdraw our application." 
The project's opponents celebrated the move.
"We believe Commissioner Malakoff has done the right thing by withdrawing her sponsorship of a highly divisive and contentious ordinance," says Rafael Andrade, an attorney representing Beach Towing. "The developer should never have politicized and pushed this project with the City Commission, especially without first addressing resident concerns and settling legal disputes with their neighbors."
But Marinberg counters that take, pointing out that neighborhood associations in Sunset Harbour and Belle Isle supported the plan. He says the developers will continue their legal fight with Beach Towing and look into other options on the site. 
"We think the original project was fantastic. It would have been a huge plus for this area," he says. "We're taking a look at what else we can accomplish ... We love the location. The location is unparalleled. You can't find properties like that in South Beach any more, especially in such a hot neighborhood like Sunset Harbour. We're very much interested in continuing our development there."
City Commissioner Joy Malakoff, who sponsored the height variance withdrawn this week, says she hopes the group resurrects their project in another form. 
"I'd love to see something happen there," she says. "We'll see what the developer decides to do with that property now." 


Great article by The Miami Herald this week regarding the fact that condo associations across the state are ripping people off by charging illegal and excessive transfer fees when someone is trying to sell or rent their unit. For those of you who missed it, here is the link:

Here is what The Florida Condominium Act says:

(i) Transfer fees.—No charge shall be made by the association or any body thereof in connection with the sale, mortgage, lease, sublease, or other transfer of a unit unless the association is required to approve such transfer and a fee for such approval is provided for in the declaration, articles, or bylaws. Any such fee may be preset, but in no event may such fee exceed $100 per applicant other than husband/wife or parent/dependent child, which are considered one applicant. However, if the lease or sublease is a renewal of a lease or sublease with the same lessee or sublessee, no charge shall be made. The foregoing notwithstanding, an association may, if the authority to do so appears in the declaration or bylaws, require that a prospective lessee place a security deposit, in an amount not to exceed the equivalent of 1 month’s rent, into an escrow account maintained by the association. The security deposit shall protect against damages to the common elements or association property. Payment of interest, claims against the deposit, refunds, and disputes under this paragraph shall be handled in the same fashion as provided in part II of chapter 83.

The only thing the article missed is the fact that the association does not even get the opportunity to charge any transfer fee whatsoever unless the association is required to approve such transfer. As I teach at every seminar, many association do not have the right to approve any transfers in their governing documents. They only have a right of first refusal. So, when determining if a fee can be charged in connection with the sale or lease of a unit, make sure the association first has the right to approve the transfer. If the association does not have the right, no fee can be charged.

Next, even if the right to approve is found in the governing documents, the fee for such approval must be found in the declaration, articles or bylaws. If there is no fee mentioned, no fee can be charged. If you want to charge a fee, amend your documents.

Of course the all important question is, how much can be charged. What is so difficult to understand about the statute specifically saying: in no event may such fee exceed $100 per applicant other than husband/wife or parent/dependent child, which are considered one applicant? It is amazing how many boards and management companies attempt to change the plain wording of the statute with creative thinking. I’ll hear things like “It’s not a transfer fee” it’s an application fee, it’s a background check fee, a move-in fee, an investigation fee. They will argue until they are blue in the face that it’s something other than a “transfer fee.” They are wrong. According to the Miami Herald article, a 2008 warning letter was sent to a Broward condo from the Division which states that “Transfer fees include such items as clerical fees, fees paid as a part of an applicant’s credit or background check or screening process and move-in fees.”

An attorney who represents a management company is quoted in the article as saying that if the fees are paid directly to the management company, and not the association, the law doesn’t apply. Let’s just say I and the Division disagree. Regardless of whether it’s being charged by the association or management, it’s still a mandatory fee that is being forced upon an applicant who wants to move into the community. The statute clearly intends to create a reasonable restriction on that fee. So, management companies are either going to be content to collect a $100.00 fee from the applicant, or they will simply charge the association directly for their assistance with these application fees and background checks and the association will need to include these fees in the association’s annual budget.

So, what’s the law as it applies to HOAs and transfer fees? There is none. The Miami Herald article opines that HOAs can therefore charge whatever they want. I disagree. If there is nothing in the associations governing documents that authorizes the association to charge a transfer fee, one can’t be charged.

Nobody is arguing that $100.00 may be too little to charge an applicant and that a criminal background and credit check costs the association more than that. That may be true. However, in the absence of language in the statute that allows the association to charge more, they simply can’t and need to stop coming up with creative phrases or reasons to violate the statute. If you’re not happy with the law, get it changed.


By Jan Bergemann
It seems that screaming and hollering is pretty common at board meetings in Florida’s community associations. Over the years I have attended board meetings where the participants were obviously under the impression that the one who screamed the loudest is right. And if that didn’t work some folks even turned to physical confrontations.
I always think that community associations bring out the worst in people. Our TV programs are full of so-called REALITY-SHOWS. As we all know, most of them are actually scripted – and are often not really reality shows. The producers of such shows should just attend board meetings – and they can film better shows than any writer could script.
But these screaming and fighting “matches” are in my opinion not caused by just a few obnoxious owners, they are caused by a system that allows bullying and dictatorial behavior. Every fight at such board meetings has two sides to the story. In most communities I know there are two – or even more – parties that fight each other. And these fights often turn ugly, causing scenes like described above.

ONLY IN SPANISH: Fiscalía de Miami-Dade y legisladores buscan soluciones al fraude en condominios

La fiscal sugiere crear en Miami-Dade un equipo especializado en investigar los casos

Legisladores resaltaron la importancia de presentar un proyecto de ley bipartidista

Se considera la posibilidad de que la Policía y la fiscalía pudieran intervenir en casos serios

La fiscal estatal de Miami-Dade, Katherine Fernández-Rundle, y parte de su equipo de abogados, se reunió el viernes con varios legisladores estatales para analizar soluciones al fraude de condominios en el sur de la Florida.

Fernández-Rundle aseguró que este primer encuentro ahondó en buscar soluciones a nivel local mientras los legisladores trabajan en la elaboración de una reforma integral a las leyes que regulan los condominios.

“Las investigaciones de el Nuevo Herald y Univisión 23 han hecho que todos nosotros abramos los ojos ante esta crisis que existe en nuestra comunidad”, dijo Fernández-Rundle.

La investigación Condos de Pesadilla, publicada por el Nuevo Herald y Univisión 23 en marzo y abril, reveló varios casos de fraude en condominios de Miami-Dade y la falta de acción del Departamento de Regulaciones de Negocios y Profesionales, la entidad estatal que debe regular este tipo de complejos residenciales.

La fiscal indicó que una de sus sugerencias apunta a crear en Miami-Dade un equipo especializado en investigar la avalancha de abusos en los condominios, tal como se hizo en el 2004 con la creación del grupo de lucha contra el fraude de seguros vehicular.

Este grupo de investigación, precisó la fiscal, opera con siete miembros y su trabajo ha permitido disminuir ese fraude, mientras que en los vecinos condados de Broward y Palm Beach han visto un considerable aumento.

José Félix Díaz, presidente de la delegación de legisladores de Miami-Dade, dijo que es importante presentar un proyecto de ley bipartidista para lograr el apoyo de legisladores de otras áreas de Florida.

“Ha quedado claro que para poder corregir este problema tenemos trabajar juntos”, dijo Félix Díaz, quien está elaborando una propuesta de ley sobre condominios y ha presentado cambios a la ley actual en el pasado, que no han sido aprobados. “Hay una crisis y si no trabajamos juntos estamos dejando al pueblo desprotegido”.

El representante estatal José Javier Rodríguez, quien participó en la reunión vía telefónica, dijo a el Nuevo Herald que el encuentro sirvió para identificar soluciones prácticas a los problemas que aquejan a los residentes de condominios.

“Estamos considerando como la Policía local y la fiscalía pudieran intervenir en casos serios, de fraude, cuando sea apropiado”, dijo Rodríguez. “Pero lo que sigue siendo claro es que el Departamento de Regulaciones de Negocios y Profesionales tiene un problema grave y no funciona para proteger a los residentes que no tienen los recursos para luchar contra los abusos”.

Fernández-Rundle agregó que el DBPR no tiene el poder, los recursos ni la disposición de atender las quejas de fraudes en los condominios.

Por otro lado, de acuerdo con la fiscal, su oficina y la policía muchas veces enfrentan limitaciones ya que los abusos contra los propietarios de condominios no están contemplados como crímenes en las leyes actuales. Otro de los problemas, agregó la fiscal, se focalizan en las limitaciones de las autoridades para obtener las evidencias de los abusos.

La investigación periodística demostró casos de fraude electoral mediante la falsificación de firmas para las elecciones de los miembros de las juntas directivas de varios condominios. Además se reveló que el condominio The Beach Club at Fontainebleau Park se realizó una millonaria licitación para reparar los techos y se terminó contratando a una empresa que compitió con dos compañías falsas.
La serie también documentó fraude notarial en decenas de declaraciones juradas, notarizadas por Carmen Aslan, una empleada de FM Law Group, una firma del abogado Héctor Martínez. Ese bufete suele representar legalmente asociaciones de condominios administradas por la compañía Sunshine Managetment Services.

El senador Miguel Díaz de la Portilla dijo que el proyecto de ley que presentara la delegación de Miami-Dade, incluirá propuestas para tipificar cómo delitos algunas acciones que permiten las irregularidades en la administración de condominios.

“Esta será una prioridad de la delegación del condado Dade”, aseguró Díaz de la Portilla, quien agregó que confía en que los legisladores del sur de Florida lograrán el apoyo de sus colegas de otras partes de Florida.

Las propuestas de reformas amplias a las leyes suelen ser analizadas durante varias temporadas legislativas antes de ser aprobadas.

Pero mientras más se tarden las soluciones, crecerá la desesperación de algunos propietarios de condominios, sobre todo muchos residentes de bajos ingresos, opinaron algunos legisladores.
“En Hialeah hay un condominio que se llama Los Sueños que se ha convertido en una pesadilla para los residentes”, dijo el senador René García. “Si en Tallahassee no quieren hacer el trabajo, debemos traerlo a nivel local”.

Pavilon in the News: South Florida condo boards rip off consumers with high application fees

State law says condo associations shouldn’t charge fees greater than $100 per applicant
But nearly 50 percent of Miami-Dade condo listings ask more

That’s making a tough housing market even tougher for the poor and middle class
Condo associations across South Florida are ripping off consumers with high application fees in violation of state law, a Miami Herald investigation has found.

Associations are allowed to charge people applying to buy or rent a unit a maximum of $100 per person. The nonrefundable fees cover the costs of interviews, background and credit checks. But many buildings gouge tenants and buyers with fees anywhere between $125 and $625, according to lease and purchase applications reviewed by the Herald.

Some associations also tack on moving-in and other charges that run into the hundreds of dollars. At a few condos that allow pets, even residents’ furry friends have to cough up fees of $100 or more.
In Miami-Dade County, nearly half of condo listings show application fees exceeding $100, from fancy high-rises in Miami Beach to run-of-the-mill units in Kendall, according to a Herald analysis of a database used by Realtors. The problem exists in Broward County too but is less widespread.
All in all, the high fees could lead to class-action lawsuits against associations, attorneys say.

“State law seems to pretty clearly prohibit fees in excess of $100,” said Jason Kellogg, a Miami attorney who specializes in condo association law. “This sounds like a major racket. ... The cost of owning or renting a condo in South Florida is expensive enough without associations fleecing residents with illegal fees.”

The cost of owning or renting a condo in South Florida is expensive enough without associations fleecing residents with illegal fees. Jason Kellogg

The revelation follows a series of reports in El Nuevo Herald documenting corruption at South Florida condo associations, including rigged elections and contracts awarded without fair bidding.
Illegal fees are another reminder that South Florida’s poor and middle class can’t keep up in a real-estate market distorted by out-of-town cash, said Ali Bustamante, a professor at Florida International University.

“High application fees are potentially discriminatory by crowding out low-income and low-middle-income renters who can’t afford to put down $300 fees,” he said. “It’s a huge foot on the scale.”
As developers build luxury high-rises at the expense of middle-market housing, rents across South Florida have skyrocketed. The region is now one of the nation’s least affordable places to buy or rent, although a new push for downtown rental buildings could help out.

Still, Bustamante said, “the property owners have all the leverage.”

Jason Wood, a sales manager at a furniture company, said he was charged $125 to apply to the Mirador 1200 condo in Miami Beach in 2012. He paid with a cashier’s check.

A person at the Mirador’s front desk said the fee is now $150.

“I am currently looking for a new place and see all over they advertise fees of $200 to $300,” Wood said. “Miami is already a rip-off when it comes to cost of housing and this is more salt in the wound with no real system of ... tenants’ rights.”
Jacking up the price

The Florida Condominium Act prohibits condo associations from charging so-called transfer fees of more than $100 per applicant “in connection with the sale, mortgage, lease, sublease, or other transfer of a unit.” The law also states that married couples should be treated as one person and pay a total of $100, and prevents associations from charging dependent children or people renewing their leases. Any transfer fees — including charges associated with background checks, screening and move-in fees — have to be clearly stated in a condo’s governing documents.

But the rules are widely flouted.

To apply for a lease at 2 Midtown in the popular neighborhood near Wynwood, a renter must pay a $200 application fee, plus a $350 “processing” fee. Only money orders are accepted.

At the Pavillion in mid-Beach, the association charges $260 for new applicants.

An extra $160 might seem like small change, but it adds up. The Pavillion has 408 units. About 200 of them are rented out at any given time, according to a tenant information package.

At larger buildings, the benefits for management and associations are even greater. Quantum on the Bay in Edgewater has nearly 700 units. The association charges tenants a $100 application fee plus $125 for “registration and orientation,” $175 for “administrative review” and $225 to move in and out.
Property management companies usually handle the applications and profit from high fees. The associations also make extra cash.

“These buildings are processing applications all day every day,” said Stavros Mitchelides, a Miami Beach-based Realtor. “And you don’t get your money back if you’re not approved.”
Isola on Brickell Key charges $200 per applicant. The Henderson and Helen Marr in Miami Beach each charge $150. So does 401 Blu, although it gives spouses what seems like a discount: $200 per couple. (By law, they should only have to pay $100.)

“I have a lot of clients where $100, $150 is a lot of money,” said Mitchelides, who only recently learned the up-charges were illegal. “A lot of these people are renters. It’s not fair. I had a girl who couldn’t afford more than $1,400 per month [in rent] and her application fee was $250.”

Mitchelides was thumbing through a real-estate industry trade magazine last month when he happened upon a mention of the $100 cap. He called the Florida Realtors’ legal hotline and was advised his clients could file civil lawsuits against the condo associations or complain to the state attorney general and the Tallahassee agency that regulates condos.

“Obviously, no one is going to sue over that amount,” Mitchelides said. “And Realtors don’t want to spend all day filing complaints.

Instead, he called the Herald.

The newspaper analyzed home listings on a database for Realtors called the Multiple Listing Service. It found that in Miami-Dade, 46 percent of condos listed for rent or sale say they require a fee of more than $100 per applicant.

The entries on the database are made by Realtors, not condo associations, and may not always be accurate.

“I think it’s higher,” Mitchelides said.

In Broward, only 22 percent of condos asked application fees higher than $100.

The cities with the most condos on the market were all in Miami-Dade and had high rates of illegal fees: Miami (48 percent), Miami Beach (40 percent), Sunny Isles Beach (50 percent) and Aventura (44 percent). The biggest markets in Broward had much lower rates of illegal fees: Fort Lauderdale (12 percent), Hallandale Beach (29 percent), Hollywood (24 percent) and Pompano Beach (23 percent)
Almost none of the condo associations mentioned in this story returned requests for comment. Neither did several management companies at buildings that charge more than $100 per applicant, including KW Property Management, First Service Residential, Quest Management and Aqua Management. One company that did respond complained that the $100 fee doesn’t cover the costs of background checks.

And Fredrick Rotstein, property manager for the Isola condo tower, wrote in an email that the association “will be immediately reviewing our ‘transfer fees’ and will make sure that they are in compliance with the applicable statute.”

It’s up to board members to audit their rules and have counsel make sure they’re compliant with the law, said Jonathan Goldstein, a Miami attorney. “They shouldn’t take for granted that management companies or previous boards had in place leasing policies that were compliant with the governing declaration, municipal ordinances or Fair Housing Act regulations,” he said.

Unlike condo associations, homeowners’ associations — which govern planned communities of single-family homes — can charge whatever they wish. Condo associations can also legally assess fees for estoppel letters and mortgage questionnaires.

Sticking it to foreigners

Some condo associations single out foreign buyers for higher fees, reflecting the added costs of a background check on someone who’s lived overseas.

At Sunset Palms West in Kendall, international buyers must pay a fee of $150. At 801 Meridian on the Beach, the fee soars even higher: $350 for a foreign buyer.

Pets get squeezed, too.

900 Biscayne in downtown Miami charges tenants $100 to apply, $300 to move in and $250 to register a pet, all nonrefundable.

State law prohibits condo associations from charging transfer fees of more than $100 per person or married couple.

Consumers generally don’t know they’re being overcharged.

Only 13 people filed complaints about the high fees in Miami-Dade and Broward counties over the last year, according to the Florida Division of Condominiums, Timeshares and Mobile Homes. In five cases, the division sent “letters providing education” to the associations.

Asked if application, move-in and pet fees of more than $100 violated Florida law, a spokesman for the division declined an interview but emailed the relevant section of the Florida Condominium Act.
The state Legislature raised the limit from $50 to $100 in 1990.

Saul Gross, president of Miami Beach-based Streamline Properties, said $100 was hardly enough to cover the costs of doing background checks.

He said state legislators set the limit “before Airbnb and the short term rental epidemic [and] before Associations realized if they weren’t careful about approving tenants, it would interfere with the quality of life of the long-term unit owner residents.”

Streamline charges $150 application fees at at least two buildings it manages in Miami Beach.
Gross said he believes the statute caps transfer fees at $100 but allows higher charges for credit checks.

(A post on the condo division’s website states “the maximum charge allowable is $100 per applicant.”)

And Lynda Horvat, an attorney for Neighborhood Property Management, said if the fees are paid directly to the management company, and not to the association, the law doesn’t apply.
“Property management companies lawfully charge associations to perform services, which include but are not limited to processing tenant applications, conducting background checks and interviewing tenants,” Horvat wrote in an email. “The service charges paid to the property management pursuant to its contract with the association are not transfer fees.”

The service charges paid to the property management pursuant to its contract with the association are not transfer fees. Lynda Horvat.

That reading seems to contradict a 2008 warning letter the division wrote to a Broward condo.
Transfer fees “include such items as clerical fees, fees paid as a part of an applicant’s credit or background check or screening process and move-in fees,” the letter states.

“The Division takes the position that a mandatory fee, which an association requires an owner, purchaser or leasee to pay in connection with the sale or lease of a condominium unit is a transfer fee,” it continues.

“Charging more than $100 per person is a violation of Florida statute,” said Miami attorney Josh Rubens. “The money should be refunded.”