Legal Advertisement Winter 2017

THANKS TO YOU – WE WON!

On behalf of everyone at our law firm, THANK YOU for voting for Glazer and Associates, P.A. as best association law firm in the State of Florida. After the votes were tallied we are truly honored to say we've come out on top, being awarded the highest level by the voters, Diamond.

Please know that whether it's representing you in

court, at administrative proceedings, attending your meetings, talking to you on the radio or teaching you at our seminars, we appreciate getting to know you and we are humbled by the opportunities given to us to help you. We will continue to do our best to earn and keep your confidence, and support. Again, thank you.

CONDO CCCCRRRRAAAAZZZZEEEE & HOAs It has been so much fun to broadcast the Condo Craze and HOAs Radio Show

for the past eight years. We so enjoy discussing legal issues, speaking with

our listeners live on the air and answering your questions each Sunday at 11:00

a.m. Condo Craze and HOAs is broadcast live on 850 WFTL in South Florida,

and listened to live throughout the state by downloading the 850 WFTL app.

All past shows can also be listened to by going to:

www.condocrazeandhoas.com or by downloading the Condo Craze and

HOAs app. We hope you tune in and contribute to the dialogue.

As our readers know, our firm’s practice is devoted to representing community associations and their owners, around the entire state.

OUR LAW FIRM INCLUDES

ATTORNEYS WHO ARE EXPERTS

AND SPECIALIZE IN ALL ASPECTS

OF FLORIDA ASSOCIATION LAW.

We are proud to announce the addition of the following associations as our clients:

2080 Condominium – Hallandale

Alden Hotel Condo – Miami Beach

Emerald Hills Country Club – Hollywood

Hammocks Trail - Miami

Hillcrest 25 - Hollywood

Lime Bay – Tamarac Le Laurier Condo – Sunny Isles Beach Poinciana Yacht – Sunny Isles Beach Sands Point – Tamarac Seashore Oceanside – Coral Springs South Hampton J – Tamarac Sunrise Lakes Phase 4 - Sunrise Trailwood Townhomes - New Smyrna Beach Trent F – Kings Point Tamarac We certainly appreciate the trust and confidence placed in our firm and look forward to working with everyone in your communities.– Eric M. Glazer

Welcome Aboard!

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HOA and Condo Education is back!

FIRST CLASS OF ITS KIND! – NOW LICENSED

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Members of condominium and HOA boards need to become

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One way to get certified is by taking our Condo Craze and HOAs

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See the course listings on the next page:

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NEXT CLASS: FEBRUARY 9TH

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Space is limited!

Arrive early for check-in!

Date/Time Location:

February 9th, 2017 / 7:00 pm (Check-in at 6:00pm)

Hard Rock Café, Hollywood

March 29th, 2017 / 9:00 am

L&L Condo and HOA Expo Palm Beach Convention Center

April 5th, 2017 / 9:00 am

L&L Condo and HOA Expo Miami – Hyatt Regency Downtown

April 20, 2017 / 8:30 am

L&L Condo and HOA Expo Tampa – Tampa Convention Center

April 26th, 2017 / 8:30 am

L&L Condo and HOA Expo Broward Convention Center

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CAN THE BOARD MAKE A RULE THAT SAYS – NO GUNS IN THE CLUBHOUSE?

Let’s start out by saying that I know of no case or statute that addresses this issue precisely,

although I do believe it will happen sooner than later. Until then however, here is my take.

In Hidden Harbour Estates, Inc., V. Norman 309 So.2d 180 (4th DCA, 1975) a lawsuit suit

was brought by a condominium owner to stop enforcement of a condominium association

rule prohibiting use of alcoholic beverages in the clubhouse and adjacent areas. The owner

challenged the rule in court and The District Court of Appeal held that the association could

adopt reasonable rules, and that the restriction on the use of alcoholic beverages was

reasonable. Moreover, the court said:

Inherent in the condominium concept is the principle that to promote health, happiness, and peace of mind of

majority of unit owners, since they are living in such close proximity and using facilities in common, each unit

owner must give up a certain degree of freedom of choice which he might otherwise enjoy in a separate, privately

owned property. Twenty-Eight years later, in Neuman V. Grandview At Emerald Hills, Inc. 861 So.2d 494 (4th

DCA, 2002) condominium unit owners brought an action for injunctive and declaratory relief against a

condominium association challenging a rule banning use of the common elements for religious services. The

District Court of Appeal held that the rule did not unreasonably restrict the owners' rights to peaceably assemble.

More specifically, the court said, prohibiting the use of the common elements of a condominium for those types

of assembly which will have a particularly divisive effect on the condominium community is a reasonable

restriction and where a condominium association's regulations regarding common elements are reasonable and do

not violate specific statutory limitations, the regulations should be upheld.

I understand that gun advocates would say…..wait a minute….the U.S. Supreme Court, in the Heller decision a

few years ago – made it clear that a state can’t prevent you from having a gun in your home for self-defense. That’s

true. But here, we have Florida courts saying the clubhouse is not an extension of your own home and you’re not

entitled to do what you want in the clubhouse as if it were your own home. By moving into a condo or HOA you

gave up some rights traditionally associated with private home ownership.

So, I can’t see a Florida court ever deciding that there’s more of a right to bring your gun into the clubhouse,

then there is to drink a beer or say a prayer. I also can’t see a Florida court ever taking the position that the ban of

weapons from the clubhouse is somehow an unreasonable rule. So, at least in this attorney’s opinion, if a board

says “no guns” then “no guns” it is.

AND AS LONG AS WE’RE ON THE TOPIC OF GUNS………..

Many associations have the ability to screen and reject potential renters and

owners from moving into their community. It recently became a whole lot harder

to do so however. H.U.D. has issued guidelines that are premised upon H.U.D.’s

belief that the criminal justice system is unfair to the Hispanic and Black

population. As a result, any restrictions that are used by associations to keep out

persons with criminal restrictions ultimately have a particularly adverse impact

on them. To keep it short, let’s just say that before rejecting someone who has a

criminal record, you may want to review the rather complicated H.U.D.

memorandum in this regard which now requires associations to base their decisions on the type of crime

committed, when it was committed, if the person has been rehabilitated, and whether they have lived in a

community without incident subsequent to their conviction. While this may seem more of a job for a probation

or parole officer, H.U.D. has now made it the job of the Board of Directors. If your community is utilizing prior

criminal history as a basis for rejecting someone, check with your attorney to ensure it meets H.U.D.’s new

guidelines. If they don’t, you may find the association being named as a defendant in a lawsuit by the guy with

the criminal record for refusing him the ability to move into your community.

THE IMPORTANCE OF THE “AS AMENDED FROM TIME TO TIME” LANGUAGE

On November 16th, 2016 Florida’s 3rd District Court of Appeals reminded us

again of just how important the “as amended from time to time” language is,

when deciding whether or not amendments to the condominium statute that are passed by The Florida Legislature apply in your condominium. In The

Tropicana Condominium Association v. Tropical Condominium, LLC., a

majority of the unit owners wanted to terminate the condominium in order to encourage a developer to buy the units. The original declaration of

condominium stated that in order to terminate the condominium a 100% vote

of the unit owners was necessary. The majority of the unit owners relied upon a 2007 subsequent amendment to the statute that now allows a condominium

termination if only 80% of the owners vote in favor of same. The declaration of condominium for The Tropicana however,

did not contain “Kaufman” language meaning that, when referencing Florida's Condominium Act, the Declaration did not

contain the words “as amended from time to time.” Absent this language in a Declaration, any changes made by the Legislature to the Condominium Act subsequent to the effective date of the Declaration do not become a part of the Declaration

automatically. Absent Kaufman language, an amendment to the Condominium Act will not have retroactive application to a

condominium's Declaration if it impairs contractual obligations.

In this case, the court held that the 2007 amendment, if retroactively applied, would eviscerate the Tropical owners'

contractually bestowed veto rights and certainly impaired their contract. As a result, the court held that the 2007 statute did not apply at The Tropicana, and that a 100% vote of the owners in order to terminate is required.

This is a case where the unit owners tried to rely on amendments to the Condominium Act, despite the nonexistence

of Kaufman language in the governing documents. Typically however, it’s the association who seeks to take advantage of changes to the statute despite the nonexistence of Kaufman language. For example, if your condominium was created prior

to the existence of statutes that:

1. prevent owners from running for the board if they are delinquent,

2. remove persons from the Board if they are delinquent,

3. prevent owners from using the common areas or from voting if they are delinquent,

these statutes should not be relied upon by the association unless your governing documents contain Kaufman language,

adopting amendments to The Florida Condominium Act. The reason is that these new remedies available to the

association are not included in the declaration (the contract) and obviously would impair the unit owner’s contractual rights. Procedural statutes however that basically tell you how to do things, like run your election, apply regardless of the

absence of Kaufman language in your governing documents.

This is often times a confusing scenario. Before making a mistake, ask your association lawyer for an opinion as to

whether a new statute applies in your community or not. You also may want to consider amending your documents to

include Kaufman language if it does not.

SO WHAT’S THE LAW WHEN IT COMES TO E-MAILS?

In a condominium, members of the board of administration may use e-mail as a means of

communication but may not cast a vote on an association matter via e-mail. The HOA statute

however is silent in this regard. Condominium arbitration cases have also held that e-mails

that exist on the personal computers of the directors are not official records of the association

and cannot be seen by the unit owners. The conclusion may be different if the association owns

a computer on which the management conducts business including e-mails (analogous to

government public records); or if e-mails are printed up and passed around for discussion at a

board meeting.

ERIC M. GLAZER NYU B.A. 1989 Miami J.D. 1992

Bar Licenses: Florida; New York; and District of Columbia Admissions: U.S. Supreme

Court; 11th Cir. Court of App.; S.D. Fla.; M.D. Fla.; N.D. Fla.; E.D.N.Y.; and S.D.N.Y.

ADR: Certified Cir. and County Court Mediator

RALPH C. RUOCCO Brooklyn College B.A. 1998 Miami J.D. 2002 Licensed in

Florida Admissions: U.S. Supreme Court; and S.D. Fla.

PENNIE S.A. MAYS FAMU B.A. 2002 Florida J.D. 2004 Licensed in Florida

Admissions: U.S. Supreme Court; and S.D. of Fla. Board Certified in Construction

Law by The Florida Bar

PAUL KIM UPenn B.A. 2002 Florida J.D. 2006 Licensed in Florida Admissions:

S.D. Fla.; and M.D. Fla.

RICHARD SACHS, Univ of Florida, BA 1990, Nova Univ. J.D. 1994 Licensed in

U.S. Supreme Court; 11th Cir. Court of App.; S.D. Fla.; M.D. Fla.; N.D. Fla Certified

Cir. and County Court Mediator

One Emerald Place

3113 Stirling Road, Suite 201

Fort Lauderdale, Florida 33312

(954) 983-1112

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Search for it at the App Store.

WHO DECIDES IF THE DATE OF THE ANNUAL MEETING GETS CHANGED?

Florida’s 4th District Court of Appeal recently issued an opinion that may surprise some of you. The case is called M & M Property Management, LLC v. Palm-Aire Country Club

Condominium Association No. 2, Inc. On February 29th 2016 the Board of Directors

attempted to postpone the annual meeting scheduled for March 2nd. The vote was 6 to 3. The owners in the community did not vote to postpone the meeting; only the Board members did. Citing to section 61B-

23.0021 of The Florida Administrative Code, the court said that when an association uses different voting and election

procedures than in its bylaws, an association must obtain the affirmative vote of a majority of the total voting interests. The bylaws at Palm Aire stated that the annual meeting was to occur on the first Wednesday in March of each year, which was

March 2nd. Therefore, in order to have the meeting rescheduled to a different date other than what is required in the bylaws,

a vote of all of the members must be taken. Be careful going forward and if you want to cancel the date of your annual

meeting, make sure a vote of your owners is not required first.

__________________________________________________________________________________________

Join us on Mondays, Wednesdays and Fridays by

participating in our community association law blog. We

choose a new topic each week. You get the attorney’s point

of view on Monday, the manager’s point of view on

Wednesday and the unit owner’s point of view on Friday. Of course, you get everyone’s point of view by reading

the comments and questions. Go to: www.hoa-condoloawblog.com.

__________________________________________________________________________________________

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Re

GLAZER & ASSOCIATES, P.A.

For the past 23 years, our firm includes

attorneys who specialize and are

experts in Florida association law and

have counseled clients on almost all

issues facing associations or their

members.

Our practice is primarily devoted to

community associations and owners.

Additionally, our commercial litigation, ADR

and appellate practice has decades of

experience before state and federal trial

courts, all appellate levels and both state

and municipal administrative forums.