What is the difference between libel and slander?

Libel and slander are both forms of defamation. 

Defamation is a common law tort, governed by state law, in which an individual makes a "publication" of a defamatory statement of and concerning the plaintiff that damages the reputation of the plaintiff.  

The distinction between slander and libel comes in the form of the publication.

Pablo Escobar's former Miami Beach home searched

The new owners of the former South Florida home of Pablo Escobar, the notorious Colombian drug lord, are demolishing it, and there's no telling what they might find.

The coral-pink waterfront home is being searched after being seized by the government in the late 80s and later abandoned by a prior owner.

Now, the founder and CEO of Chicken Kitchen and his wife, who purchased the property in 2014, plan on demolishing the home, but not before doing a thorough search first.

"There's always the possibility and chance that they may find either money or drugs," said retired DEA agent Jim Shedd.

The new homeowner, Christian de Berdouare, is interested in what they may find. "A lot of people in Colombia knew that all of the drug dealers used to hide a lot of money in the houses that they used to own," said De Berdouare.

The house, which was purchased for nearly $10 million on North Bay Road, has caused a commotion. 7News even encountered a film crew filming inside the property as part of a documentary on the late drug kingpin.

"It could be a dead body, for all we know," said de Berdouare on what they could find. "It can be cash. It can be gold. It can diamonds."

Before beginning the demolition process, TV journalist Jennifer Valoppi, de Berdouare's wife, was sure to take some precautionary measures, considering the history of the home.

"Well, the first thing I did when the deed was transferred into our name was get a Monseigneur to come and bless the property," said Valoppi, "because I'm a little worried about what might have gone on here in those days."

The demolition of the home began on Monday, and there is no word yet if any relics of the late drug lord have been found.

Read More: http://www.wsvn.com/

The U.S. will start tracking secret buyers of luxury real estate in Manhattan and #Miami

Concerned about illicit money flowing into luxury real estate, the Treasury Department said Wednesday that it would begin identifying and tracking secret buyers of high-end properties.

The initiative will start in two of the nation’s major destinations for global wealth: Manhattan and Miami-Dade County. It will shine a light on the darkest corner of the real estate market: all-cash purchases made by shell companies that often shield purchasers’ identities.

It is the first time the federal government has required real estate companies to disclose names behind all-cash transactions, and it is likely to send shudders through the real estate industry, which has benefited enormously in recent years from a building boom increasingly dependent on wealthy, secretive buyers.

The initiative is part of a broader federal effort to increase the focus on money laundering in real estate. Treasury and federal law enforcement officials said they were putting greater resources into investigating luxury real estate sales that involve shell companies like limited liability companies, often known as L.L.C.s; partnerships; and other entities.

Officials said the new government efforts were inspired in part by a series last year in The New York Times that examined the rising use of shell companies as foreign buyers increasingly sought safe havens for their money in the United States.

The use of shell companies in real estate is legal, and L.L.C.s have a range of uses unrelated to secrecy. But a top Treasury official, Jennifer Shasky Calvery, said her agency had seen instances in which multimillion-dollar homes were being used as safe deposit boxes for ill-gotten gains, in transactions made more opaque by the use of anonymous shell companies.

“We are concerned about the possibility that dirty money is being put into luxury real estate,” said Ms. Calvery, the director of the Financial Crimes Enforcement Network, the Treasury unit running the initiative. “We think some of the bigger risk is around the least transparent transactions.”

The department will focus on sales that are both paid for all in cash and conducted using shell companies. The government is requiring title insurance companies, which are involved in virtually all sales, to discover the identities of buyers and submit the information to the Treasury. The government will put the information into a database for law enforcement.

The Treasury’s program will affect billions of dollars in real estate transactions. In Manhattan, the initiative requires buyers in sales of more than $3 million to be reported; in Miami-Dade County, it requires reporting on sales of more than $1 million. In Manhattan, 1,045 residential sales cost more than $3 million in the second half of 2015, worth some $6.5 billion in aggregate, according to PropertyShark, a real estate data company.

In addition to starting in only two markets, the requirement runs from March through August. If Treasury officials find that many sales involved suspicious money, Ms. Calvery said, they would develop permanent reporting requirements across the country.

Real estate professionals, especially in the luxury market, often know little about buyers, and until now, they have not been legally required to. In its investigation, The Times found that nearly half of homes nationwide worth at least $5 million are purchased using shell companies. In Manhattan and Los Angeles, the figure is higher.

In New York, The Times examined a decade of ownership at an iconic condominium complex near Central Park, the Time Warner Center, and found a number of hidden owners who had been the subjects of government investigations. They included former Russian senators, a former governor from Colombia, a British financier, and a businessman tied to the prime minister of Malaysia, who is now under investigation. In Florida, The Times uncovered a condominium in Boca Raton tied to Mexico’s top housing official, who recently stepped down and is now a leading contender for the governor’s office in the southern state of Oaxaca.

Ms. Calvery said The Times investigation had been important in raising awareness about problems with shell companies and in convincing the Treasury that more scrutiny of high-end buyers is needed. “It’s easier to talk about it with people who aren’t specialists in our area when they read about it in the newspaper,” she said.

Indeed, last spring, New York City’s Finance Department began requiring shell companies buying real estate to report their members to the city. That rule, however, is less far-reaching than the Treasury action.

Real estate is becoming a larger target for law enforcement as well. According to two people with knowledge of cases at the Justice Department, lawyers there will be shaping cases directly around money laundering in real estate deals rather than adding such transactions to other cases, also partly in response to The Times’s series. The Federal Bureau of Investigation is also creating a new unit to focus on money laundering, and real estate will be a central emphasis, according to two people with direct knowledge of the matter.

The new scrutiny will probably increase headaches for the real estate industry, in part because shell companies are not easy to penetrate. Buyers often mask their identities by layering companies on top of other shell companies. Buyers also commonly fill out L.L.C. formation papers using the names of lawyers or other place holders, often called “nominees,” instead of their own names.

The Treasury is looking for the actual owners behind shell companies, often referred to as the beneficial owners. “We’re not looking for nominees,” Ms. Calvery said.

In its order, the Treasury defined beneficial owners as “each individual who, directly or indirectly, owns 25 percent or more of the equity interests” of the entity that bought the property. Once title companies identify those people, they are required to copy driver’s licenses or passports and also pass the individuals’ names to the Treasury Department.

Stephen Hudak, a spokesman for the Treasury’s Financial Crimes Enforcement Network, said any title companies or purchasers who provided false information could face penalties.

Under the U.S.A. Patriot Act, the Treasury is already authorized to require real estate companies to scrutinize real estate buyers, but the department has in the past faced fierce lobbying against issuing such rules. The department already requires mortgage lenders to scrutinize buyers. But cash buyers have been a big hole in the government’s oversight of the market, Ms. Calvery said.

“Repeated anecdotal information where we see criminals of different stripes putting money into real estate all suggest to us that this is an area we need to pay attention to,” she said.

Read More: http://www.nytimes.com/

Defamation claims against boards on the rise

Peter S. Sachs

Be it a negative comment made at a meeting or a throw-away sentence in a letter from the board, if a comment made by a board member places an owner or other board member in a negative light, the association itself may ultimately be held responsible for making such a statement, whether true or not.

In Florida, defamation has become an increasingly popular cause of action against associations. Regardless of the truthfulness of negative comments, homeowners’ associations and condominium associations can be sued for such statements made by board members.

The key is to recognize defamation before it happens. Generally, in order to win a defamation lawsuit against the association, the plaintiff must prove:

1. The association and/or its individual board members made a false statement about the plaintiff;
2. The association and/or its individual board members published (written or orally) the statement to a third party;
3. The association made the defamatory statement with the requisite intent (negligence or malice);
4. The plaintiff suffered damages.

However, the elements of “defamation per se” (a cause of action less difficult to prove) are that a defendant’s oral (slander) or written (libel) publication of a statement to a third party:

* Tends to subject persons to hatred, distrust, ridicule, contempt or disgrace;
* Tends to injure a person in a trade or profession;
* Attributes to a person either conduct, characteristics or conditions incompatible with the proper exercise of a lawful business, trade, profession or office.

When published words concerning a person tend to degrade him or her, bring him or her to ill repute, destroys confidence in his or her integrity or cause a similar injury, such language is actionable per se.

In defending a case for defamation per se, legal injury is presumed or implied by the publication itself. In other words, the complaining party does not have to prove damages. In addition, the ultimate verdict in defamation actions is very subjective to a jury. If a jury is sympathetic to the owner suing the association, even if the owner cannot prove actual monetary damages, the association may ultimately be liable for a verdict in favor of the owner.

The best way for an association to avoid defamation claims is to be careful with what it states in writing. This can easily be accomplished by reviewing any statement drafts with the association’s attorney prior to it being published. “Writing” can also mean informal e-mail correspondence between board members and other owners. Some board members believe they can write anything they want from their personal e-mail accounts; however, in several instances the comments made in such correspondence can be imputed to the association and, in fact, are produced as evidence during litigation.

In summary, board members must remember that they are elected directors of a corporation; therefore, any statements they make about each other or other owners may be imputed to the corporation.

Read More: http://www.condomgmt.com/

AVOID DRAMA AT YOUR ELECTION - OBEY STAGGERED TERMS

By Eric Glazer, Esq.

Published January 11, 2016

Each and every year, without fail, the Department of Business and Professional Regulation is deluged with arbitration petitions filed against associations, alleging that the association failed to properly conduct its elections.  Knowing some basic law can go a long way toward finding your association’s election under a legal attack.  Here are some of the more commonly litigated issues:

1. Placing the wrong number of people on the Board of Directors: (Condominium Associations Only)  Often times the governing documents do not provide for an exact number of Directors for your Board.  Instead, the bylaws allow for a range of directors like no less than three and no more than nine.  Florida arbitration cases have held that where the documents provide for a range of directors, the statute automatically sets the number at five.

2. Staggered Terms:  (Condominiums Only)  There has been lots of confusion over the years regarding staggered terms.  To make a long story short, staggered terms are now allowed, if they are provided for in your governing documents and the term is not in excess of two years.

3.Candidate Information Sheets: (Condominiums Only)  In a condo election, each candidate is allowed to provide the association with:  a copy of an information sheet which may describe the candidate's background, education, and qualifications as well as other factors deemed relevant by the candidate. The information contained therein shall not exceed one side of the sheet which shall be no larger than 8 1/2 inches by 11 inches. Any candidate desiring the association to mail or personally deliver copies of an information sheet to the eligible voters must furnish the information sheet to the association not less than 35 days before the election. If two or more candidates consent in writing, the association may consolidate into a single side of a page the candidate information sheets submitted by those candidates. The failure of an association to mail, transmit or personally deliver a copy of a timely delivered information sheet of each eligible candidate to the eligible voters shall require the association to mail, transmit, or deliver an amended second notice, which shall explain the need for the amended notice and include the information within the time required by this rule. If an amended second notice cannot be timely mailed, transmitted or delivered, the association must re-notice and reschedule the election. If the election has already been conducted, the association shall conduct a new election. No association shall edit, alter, or otherwise modify the content of the information sheet. The original copy provided by the candidate shall become part of the official records of the association. 

Note that the law allows the candidate information sheet to include “factors deemed relevant by the candidate.”  That means that the information sheet may be critical of the current administration.

4. Quorum: In a condominium, it is irrelevant if there is a quorum at the annual meeting.  As long as 20% of the eligible voters participate in the election, the election counts.  In an HOA – a quorum is needed to have an annual meeting.  However, as we learned from a recent arbitration case this firm won, if an HOA asks owners to submit their names for candidacy in advance of the annual meeting, no election and no quorum is needed if there are less persons who submit their names than there are open positions.

When Can the Last Vote Be Cast? In a condominium, an owner can cast a vote up until the first envelope is opened.  The association must also have ballots and envelopes on hand.

You will note that I haven’t said much about HOA election procedure.  I’ll leave it up to Jan to tell you why.

I wish all of you a smooth and easy annual meeting this year.  Hope these tips help.

Read More: http://www.hoa-condoblog.com/

Are Condominium Association Term Limits Permitted? YES THEY ARE

Question: I have been reviewing the online condominium election materials from the State of Florida. There is nothing in the materials that specifically addresses term limits. What is your opinion regarding whether term limits in condominium association bylaws are permitted? E. N. (via e-mail)

Answer: The issue of whether terms limits, sometimes called “sit out clauses”, are permitted in a condominium association is not definitively settled. Watching the development of the law in this arena is somewhat akin to watching a slow moving ping-pong match.

The issue of term limits was initially considered by the Division of Condominiums Timeshares and Mobile Homes (“the “Division”) in an arbitration decision in 1994 which held that term limits were valid. Visoly v. Buckley Towers Condominium Association, Inc., Arb. Case No. 94-0224. There was a subsequent arbitration decision in 2002 which reached the same result.  Katz v. Thirty-Three Sixty Condominium Association, Inc., Arb. Case No. 02-4683. In the Katz case, the bylaw provision which was upheld provided that no director could serve more than three consecutive terms and required the board member to sit out for one year before being eligible to run again.

However, in 2007, the Division reversed course and issued a “Declaratory Statement” which held that because the statute states that “any unit owner” is eligible to run for election to the board, that a term limit provision in the bylaws was inconsistent with the Condominium Act, and thus invalid. Gulf and Bay Condominium Association, Inc., DS 2007-0228049. In this case, the association had adopted a bylaw restricting unit owners from serving on the board for more than two consecutive terms.

During the 2008 Legislative Session, the Florida Condominium Act was amended to state that the “terms of all members of the board shall expire at the annual meeting and such board members may stand for reelection unless otherwise permitted by the bylaws.” The word “permitted” did not really make sense. In 2011, the statute was again amended and now provides as follows: “[T]he terms of all board members expire at the annual meeting, and such members may stand for re-election unless prohibited by the bylaws.”

It has been suggested that these changes to the condominium statute permit term limits, since the language in the statute indicates that the bylaws can “prohibit” an owner from seeking reelection to the board. The Division, in a 2010 arbitration decision called Fiddlers Green Condominium II Association, Inc., DS 2010-029, agreed with these interpretations and found that the 2008 amendment to the statute legalized term limits.  Accordingly, the bylaw amendment imposing term limits was upheld.

Interestingly, there was a recent Declaratory Statement from the Division which held that term limits are not permissible in cooperative associations. Oser/Galt Mile Apartments, Inc., D.S. 2012-073. The association’s bylaws contained a one year “sit out” provision. The Division found that because the cooperative statutes provides that “any unit owner desiring to be a candidate for board membership must timely submit notice of his or her candidacy”, that cooperative bylaws could not impose limitations on eligibility for board membership.

Another Declaratory Statement, also issued after the changes to the condominium statute, is also of interest. In this case, the bylaws prohibited a person from serving on the board of the condominium association and simultaneously serving on any other association board within the development. Rawson/Osprey at Destin West Beach and Bay Resort Condominium Association, Inc., DS 2011-081. Similar to the Division’s ruling in the cooperative case, the agency concluded that the provision in the statute that allows “any unit owner desiring to be a candidate” to run for the board rendered the bylaw provision invalid. The Division further ruled that the only limits on board eligibility are those specifically contained in the statute.

Thus, it appears that the state of the law is that term limits are valid (if contained in the bylaws), while other restrictions on board eligibility (such as a residency requirement) would likely not be.

Read More: http://www.floridacondohoalawblog.com/

FREE - CONDO CERTIFICATION

CONDO

WORKSHOP

Condominium Elections,

 Rules and 

Official Records/Board Member Certification

Hosted by the City of Miami Beach and presented by the Department of Business and Professional Regulations, Division of Condominiums, Bureau of Compliance.

Tuesday February 16th 

3 p.m. - 6 p.m.

Miami Beach City Hall

1700 Convention Center Drive

Commission Chambers, Miami Beach.

RSVP:  cdefreze@miamibeachfl.gov