As 2016 comes to an end, Condominium Associations find themselves sending out mandatory notices to Owners regarding budget proposals, declaration amendments, changes to monthly assessments, etc. But what if, as with many of Florida’s condominium owners, a unit Owner lives out of state? Does every notice from the Association have to be sent to the unit Owner’s out of state address?

Chapter 718 of the Florida Statutes explicitly states that official notice of meetings and all other purposes must be mailed to each unit owner at the address last furnished to the association by the unit owner. The statute does allow hand delivery of notices; however, this is a risky tactic on behalf of the Condominium Association as it may be difficult in the future to prove that the notice was actually delivered. The statute also allows Condominium Associations to send notices via e-mail; but only if the Condominium Owner provides written consent for such action (Associations make sure you retain this written consent in your records!).

You might be asking yourself, ‘what difference does it make whether the gross value of the estate consists of a simple 3 bedroom house valued at $100,000 or is valued at $10 Million?’ The answer to this question has both a legal implication as well as a practical implication.

From a legal perspective, if the decedent is a U.S. citizen or resident and the decedent's death occurred in 2016, a Federal estate tax return (IRS Form 706) must be filed if the gross estate of the decedent, increased by the decedent's adjusted taxable gifts and specific gift tax exemption, is valued at more than the filing threshold for the year of the decedent's death. The filing threshold for 2016 is $5,450,000 and the filing threshold for 2015 is $5,430,000. An estate tax return also must be filed if the estate elects to transfer any deceased spousal unused exclusion (DSUE) amount to a surviving spouse, regardless of the size of the gross estate or amount of adjusted taxable gifts. The election to transfer a DSUE amount to a surviving spouse is known as the portability election. 

In my prior “Blog” entitled “Former Board Members Must Turn Over Association Files”, we discussed Directors’ responsibilities and requirements to turn over their respective HOA’s, Condo’s and Co-op’s “Official Records” when their term as a member of the Association’s Board of Directors has terminated.  Part II of this Blog discusses the advisability of X-Directors taking reasonable measures to protect them, before timely relinquishing the Official Records in their possession.

As a number of communities that we represent have aged, an increasing number have come to us with questions as to who has responsibility for maintenance and replacement of trees.  As many of you know, especially for communities built in the 1990s, many local governments required new developments to plant a number of trees, especially oak trees, adjoining paved portions of streets.  Over time, these trees have grown, sometimes causing damage to roadways and structures.  Some associations may believe that the location of such trees is within the yards of the homes adjacent to the street trees, and as such, the homeowner would have responsibility for the trees.  While this may be the case for some homes, we have discovered that, especially for communities with private streets owned by the association, the trees may actually be located within the area designed on the plat as a common area roadway right-of-way tract.

As communities age and populations age and expand in Florida, developers and associations both face new challenges that are vastly different from the ones overcome since the turn of the century.  The advent of this century brought such issues as insurance and repair of hurricane damage, Marketable Record Title Act and foreclosures to the forefront.  Community Association laws and practices changed to incorporate the new realities. 

The changing culture, demographics and technology herald new trends.  What’s next for community associations?

In my last blog we discussed the role children play in the attorney’s craft of estate planning. As we turn the corner and approach Way Point #3, we need to discuss the related issue of minor children and, more importantly, to whom the testator would want to entrust the care of his and her most prized possessions … their minor children … in the event of the untimely death of mom and/or dad.

Amenities can define a community.  If golf or nature or other features attract residents, both residents and their guests take advantage of the opportunities such features offer.  In some communities, certain activities may be open to the public or facilities may be rented out for events. 

These same amenities that bring positive attention to a community also invite liability.  Poorly putted golf balls, improperly connected wiring for speakers, and even wildlife mishaps are some of the many unintended consequences that can wreak financial havoc for a community. 

We now arrive at our second way point in our journey through the maze of estate planning, i.e. children, and the role they play in the attorney’s craft of estate planning.

From time immemorial, children have been a major motivation of thoughtful estate planners. Ancient Hebrew scripture consistently accents the doctrine of ‘inheritance’ to the Hebrew elders. Moses wrote ... “And ye shall take them as an inheritance for your children after you, to inherit them for a possession” [Lev 25:46]; and wise Solomon instructed the Hebrews when he wrote ... “A good man leaveth an inheritance to his children's children” [Prov 13:22]. Yes, a GOOD person leaves an inheritance to their descendants.

The Unauthorized Practice of Law (“UPL” as it is commonly referred) by a member of a Condominium or Homeowner Associations Board of Directors is an ever-present danger that carries substantial risk to Associations and Directors alike.

A Director who commits UPL may subject his/her Association to substantial financial liability. Furthermore, a Director accused of UPL could personally be held liable; both criminally (UPL is a misdemeanor of the first degree) and civilly. This means that a Director accused of UPL may not only face criminal charges that carry a possible sentence of imprisonment and/or a fine, but also that they may be held financially liable to the Association for any damages suffered by the Association by their actions of UPL.

In Florida, there are three types of concurrent ownership by two or more persons: a) Joint Tenancy; b) Tenancy in Common; and c) Tenancy by the Entirety. A Tenancy by the Entirety can only be vested in married persons. Even though a conveyance does not specify that the grantees take title by an Estate by the Entireties, and even though they are not referred to as husband and wife in the deed, a Estate by the Entireties is created if a) the grantees named in the deed are in fact husband and wife; and b) the deed contains no contrary intent to create another type of estate. Espenship v. Carter, 514 So.2d 1108 (Fla. 1^st DCA 1987).