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
CAMs RECEIVE 3 CEUs IF THEY ATTEND! TWO
IN LEGAL UPDATE 2017 AND ONE IN HUMAN
RESOURCES! Course number is 9628405
Members of condominium and HOA boards need to become
certified within one year prior to joining a board, or within 90
days of actually getting elected or appointed. If not, they are
removed from their positions.
One way to get certified is by taking our Condo Craze and HOAs
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So come learn all about budgets, meetings, reserve funds,
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See the course listings on the next page:
GLAZER & ASSOCIATES, P.A.
Board Certification Classes
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NEXT CLASS: FEBRUARY 9TH
HARD ROCK, HOLLYWOOD
Register at:
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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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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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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.
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