board members | Rembaum's Association Roundup

September 12, 2025September 25, 2025

Construction Defects | From the Frying Pan into the Fire

At times the law can be quite cruel. A recent appellate case from Florida’s Fourth District Court of Appeal, Vuletic Group LLC d/b/a Concept Construction v. Malkin, Case No. 4D2024-1589 (Fla. 4th DCA July 16, 2025), reminds us all of this salient fact.

In Vuletic Group, the parties contracted with one another in 2018 for a house remodeling project. Around November 2019, the homeowners terminated the contract and stopped paying the contractor. As a result, the contractor sued the homeowners for nonpayment. The homeowners then made a counterclaim against the contractor for breach of contract and construction defects. In the counterclaim the homeowners alleged that the contractor breached its contract by failing to supervise, coordinate, schedule, and/or manage a significant number of subcontractors and vendors working on the renovation project which ultimately led to multiple construction defects and deficiencies.

In January 2023 a bench trial (a non-jury trial) was held during which the homeowners presented expert testimony regarding the anticipated costs to repair and remedy all the issues allegedly caused by the contractor’s breach of contract, amounting to $414,372 in damages. Ultimately, the trial court ruled in favor of the homeowners and awarded them damages in the amount of $499,250, which also included pre-judgment interest. After the trial court’s ruling, the contractor appealed the case to the Fourth District Court of Appeal.

The contractor argued to the Court that the trial court had incorrectly awarded damages to the homeowners because the damages should have been calculated using cost figures as of the date of the breach, not cost figures as of a date after the date of the alleged breach. More particularly, the homeowners’ expert testified at trial that the cost to remedy all the issues would be $414,372 using cost figures as of September 2, 2022—a date nearly three years after the date of the breach of contract. As you will read, this turned out to be a fatal flaw in homeowners’ case against the contractor. The Court’s role was to determine whether or not the trial court applied the correct measure of damages to the homeowners’ breach of contract claim.

Early in the Court’s opinion, the Court points out that “[d]amages for a breach of contract should be measured as of the date of the breach;” “[f]luctuations in value after the breach do not affect the nonbreaching party’s recovery [of damages];” and “[d]amages are not supported by competent, substantial evidence when damages are assessed for a time other than that of the time of breach.”

The Court went on to cite a Florida Supreme Court case which directly speaks to the issue and provided that damages for a breach of contract case are measured as of the date of the breach in Grossman Holdings Ltd. V. Hourihan, 414 So.2d 1037 (Fla. 1982).

The Court went on, citing yet another case where a trial court found that damages for replacing a defective roof were based on the cost of damages calculated five years after the occurrence of the breach of contract. On appeal in that case, the Second District Court of Appeal reversed the trial court’s ruling because the cost of damages should have been determined as of the date of the breach in Peach State Roofing, Inc. v. 2224 South Trail Corp., 3 So.3d 442 (Fla. 2d DCA 2009). Clearly then there is a substantial caselaw on this particular subject that makes it patently clear that the construction damages proven at trial must be based upon the actual date of the breach of the contract.

In accordance with the aforementioned, the Court pointed out that the homeowners presented no evidence to establish the amount of damages as of the date of the contract breach itself but rather presented evidence of damages which were nearly three years after the date of the alleged contract breach. Because the damages must be measured as of the date of the breach, the damage award from the trial court was not supported by competent, substantial evidence and was therefore fully reversed. It gets worse…much, much worse.

Rather than remanding the case for further proceedings and allowing the homeowners to establish the damages as of the time of the breach, the Court held that the homeowners were not entitled to remedy their own failure to present competent, substantial evidence of damages as of the date of the breach of contract to support their claim. Thus, the homeowners were not entitled to “a second bite of the apple” to prove their damages since they already had the opportunity to prove their case and failed. Therefore, since the homeowners were required to prove their damages as of the date of the breach and did not do so, they failed to meet their burden of proof. Therefore, the Court reversed the trial court’s judgment and instructed the trial court to enter judgment in favor of the contractor. Now, here comes the really bad part.

While not addressed in Vuletic Group, the effect of the Court’s ruling will also allow the contractor to seek its prevailing party attorney’s fees and costs against the homeowners at both the trial court and appellate court levels. So at the end of the day, not only did the homeowners lose their damage claim, which really should have gone their way had they proven their damages as of the date of the breach rather than a later date, but also the homeowners will likely be faced with having to pay prevailing party fee awards in favor of the contractor that allegedly caused the homeowners’ damages in the first place. Talk about a double whammy, wow!

Choosing the right attorney is no small undertaking. It is so very important that the attorney has a thorough understanding of the body of law at issue. When you hire board-certified attorneys, the Florida Bar is affirming the attorney’s expertise in a particular field. Is your association using a law firm with board-certified attorneys?

August 6, 2025September 10, 2025

What Managers and Board Members Need to Know About House Bill 913

On June 23, 2025, Florida Governor DeSantis signed House Bill 913 (HB 913) into law. Its provisions took effect on July 1st. In last month’s Roundup we discussed how HB 913 amends the Florida Condominium Act, Chapter 718, Fla. Stat. In today’s article the Roundup considers how HB 913 affects Chapter 468, Fla. Stat., which addresses the statutory requirements for both management companies and individual licensed community association managers (LCAMs). The following information is presented generally in the order in which it is presented in HB 913.

If an LCAM’s license is revoked, then such individual cannot own any interest in a management company during the 10-year period after the effective date of the license revocation and cannot reapply for ownership in a management company until such 10-year period is completed.

LCAMs must create and maintain an online licensure account with the Florida Department of Business & Professional Regulation (DBPR). In addition, all LCAMs must both identify the community(ies) for which he or she is designated as an on-site manager, and such records must be updated within 30 days of any changes.

A community association management company must identify for the DBPR all managers that it employs to provide community association management services.

If an LCAM has his or her license suspended or revoked, then the DBPR is obligated to provide notice to the LCAM’s management company in which they are employed and must also notice all community associations to which the LCAM is assigned.

An LCAM must not knowingly perform any act directed by a community association if such act violates any state or federal law.

If the community association is subject to the statutory requirements of the structural integrity reserve study and/or milestone report, then such LCAM must comply with all relevant sections of law as directed by the community’s board of directors.

All management contracts must have, in at least 12-point type, the following language: “The community association manager shall abide by all professional standards and recordkeeping requirements imposed by part VIII of chapter 468, Fla. Stat.

An LCAM must attend at least one board meeting or member meeting per year (while this is not a new requirement in HB 913, it is important to note).

All LCAMs must post their hours of availability and summary of duties in a conspicuous place in the community, which must also be posted on a website (or app) if the association is required to have one (while this is not a new requirement in HB 913, it is important to note).

LCAMs and management companies must provide a copy of the management contract if requested by a member. (This obligation is separate and distinct from an official record request, and while not a new requirement in HB 913, it is important to note.)

A rebuttable presumption of conflict of interest exists if the LCAM, or their relative, proposes to enter into a contract or other transaction with the association or actually enters into such contract for services or goods other than community association management services. Such a proposed conflict must be disclosed on the board meeting notice and agenda along with a copy of the proposed contract attached to the meeting notice (and such contract must be approved by two-thirds of all directors present at the meeting). However, if the community association manager or firm previously disclosed a conflict of interest in an existing management contract with the association, such conflict of interest does not need to be additionally noticed and voted on during the term of the management contract but, upon renewal, must be noticed and voted on as described above.

If a violation of the conflict-of-interest requirements occurs, then the contract itself is voidable by the board; and the association only owes the vendor for monies due up to the date of cancellation and is not liable for any other damages including liquidated damages, etc. which may otherwise be due under the contract.

If the association receives and considers a bid for a good or service that exceeds $2,500, and the good or service is unrelated to community association management services, and such good or service would be reasonably construed as a conflict of interest under § 468.4335 F.S., the association must receive multiple bids from other providers; however, this requirement of multiple bids does not apply to any goods or services that are disclosed in the management services contract as a conflict of interest.

If you have any questions regarding anything discussed herein, please be sure to discuss them with your association’s legal counsel.

April 4, 2022April 5, 2022

Board Member to Board Member Emails—Are They Official Records? | Division of Condominiums Muddies The Waters

Board Member to Board Member Emails—Are They Official Records? Division of Condominiums Muddies The Waters

On January 6, 2022, the Department of Business and Professional Regulation (DBPR), through the Division of Florida Condominiums, Timeshares, and Mobile Homes (Division), entered a Final Order Granting Petition for Declaratory Statement in the matter of In re: Petition for Declaratory Statement, James Hanseman, Petitioner (the Hanesman Declaratory Statement). In this Final Order, the Division Director (Chevonne Christian) stated that all board member to board member emails are official records of the association. Unfortunately, this Order was entered i) without regard to who owns the device from which the email was sent;

ii) without regard to whether the manager was included in the email chain; iii) without regard to whether the email was sent to a minority or majority of board members; and iv) without regard to the board members’ constitutional right of privacy. The decision does not consider the sacrosanct requirement that a quorum of board members is needed to conduct business. If a board member can enter into a conversation with a minority of the board without triggering a required meeting notice, then a board member should also be able to communicate, by any means, with a minority of the board, including email, without it rising to the level of being considered an official record of the association. However, given the scope of the Order, this will likely require an act of the Florida legislature to accomplish.

In general, a petition for declaratory statement may be used to resolve questions or doubts as to how the statutes, rules, or orders may apply to the petitioner’s particular circumstances. These statements are only binding upon the parties who join in the proceeding. The Division issues “declaratory statements” when requested by parties who are unclear about the applicability of portions of the Condominium Act, Chapter 718, Florida Statutes. Declaratory statements are formal written positions taken by the Division on the laws and rules the Division is authorized to enforce and interpret. Importantly, with regard to the Hanesman Declaratory Statement’s precedential value, it has none whatsoever. It only applies to the parties named in the Hanesman Declaratory Statement, which includes the petitioner, Mr. Hanseman, and the Wildewood Springs II-B Condominium Association Inc. This decision is merely persuasive authority, at best. In fact, the Division does not even have to follow their own written precedent. Yet, it is predictive as to how the Division will rule should a similar fact pattern be presented. So, beware!

The Hanesman Declaratory Statement could stand for the broader proposition that all director emails are official records of the association, or perhaps it stands for the narrower proposition that board member emails are not automatically excluded as an official association record merely because the emails were sent from a director’s private email address and privately owned computer. Time will tell, I hope. In the meantime, applying its broadest interpretation means that the Division has now opined that all director-to-director emails are official records. This broad interpretation means such emails must be produced in response to a member’s official records request, unless later excluded from production due to matters of privilege. This broad interpretation also means that for all requests to inspect the official records of the association, directors will have to search their own hard drives and provide copies to the manager or whoever is coordinating the inspection. If this broad interpretation is to be applied, it is yet another burdensome requirement for board members and could be viewed as an extreme overreach of a governmental administrative agency. In light of this possible interpretation and obligation to turn over board member to board member emails, who will want to serve on the board, now?

Let us examine the history of this important topic. On March 6, 2002, Sue Richardson, the Chief Assistant General Counsel of the DBPR, issued an opinion which provided that “[c]ondominium owners do have the right to inspect email correspondences between the board of directors and the property manager as long as the correspondence is related to the operation of the association and does not fall within the…statutorily protected exceptions…[The DBPR does not have] regulations expressly requiring archiving emails, but…if the email correspondence relates to the operation of the association property, it is required to be maintained by the association, whether on paper or electronically, under chapter 718, Florida Statutes.”

In Humphrey v. Carriage Park Condominium Association Inc. Arb. Case No. 2008-04-0230 (Final Order, March 30, 2009), the arbitrator of the Division ordered that

“…emails…existing…on the personal computers of individual directors…are not official records of the association…Even if directors communicate among themselves by email strings or chains, about the operation of the association, the status of the electronic communication on their personal computer would not change. Similarly, an email to an individual director or to all directors as a group, addressed only to their personal computers, is not a written communication to the association.”

The arbitrator reasoned that “[t]his must be so because there is no obligation to turn on [the] personal computer with any regularity, or to open and read emails before deleting them.”

Then, on July 1, 2014, the Florida Legislature amended s. 718.112(2)(c) to provide that board members may communicate via email. Just because the legislature clarified that directors may do so does not mean that such email communications should automatically be considered official records of the association. Board members are not publicly elected officials. Yet, the Division’s recent Hanseman Declaratory Statement creates a basis to conclude that the Division desires to hold a director’s email communications to the same standards.

A condominium association is a privately owned entity whose members elect representatives to effectuate the orderly operations of the association. Serving as a board member of a condominium association is not at all akin to holding public office, and in our opinion, board members should not be held to the same standard as that of elected officials. The last thing a community association board member needs is to be micromanaged by one or more cantankerous owners and the vocal minority.

In the Hanesman Declaratory Statement, Ms. Christian takes the position that because §718.111(12)(a), Fla. Stat., provides, in relevant part, that the “official records of the association” include “all of the written records of the association not specifically included in the foregoing which are related to the operation of the association,”

that nothing exempts records when created or transmitted with a board member owned device rather than association owned device.

She then applied what she referred to as the plain meaning of the term “writing,” referring to the definition of the term from Black’s Law Dictionary (11th ED. 2019), which provided “emails constitute a form of writing.”

In fact, had the Florida Legislature intended for emails from one board member to another to be considered official records subject to inspection, then when it amended Chapter 718.112, eff. July 1, 2018, to provide that “members of the board of administration may use email as a means of communication but may not cast a vote on an association matter via email,” the legislature could have clarified that such emails were considered a part of the official records. Obviously, the legislature did not do so. This can only mean that the legislature had no intent whatsoever for a director’s email sent from their personal computer to a minority of other board members to be considered an official record.

What is the end game of the Hanesman Declaratory Statement? The implications are far-reaching, indeed. Does this mean that text messages must be disclosed? What about communications on messaging apps such as WhatsApp and Signal? If not, why not? The logic is arguably the same. What about conversations held with a board member outside of a meeting—must the board member make a disclosure he or she had such conversation at the next noticed meeting? Where does it end?

It is rather common knowledge that there is already a mechanism in the law to acquire documents of every kind. It is called a “subpoena duces tecum” and is used in active litigation to compel production of documents. In this author’s opinion, that is the only circumstance in which a board member’s private emails must be produced, unless and until the Florida Legislature or an appellate court squarely addresses this issue.

As the phrase goes, “one step forward and two steps back.” In other words, while a board member can use email to communicate with a fellow board member, it may come with the steep price of later required disclosure. So, if you want to avoid email disclosure, you may want to consider using a phone to discuss matters. If you want to play it really safe, then be sure to only chat to a minority of board members, too. Until there is an appellate court decision or statutory law that squarely addresses email disclosure, please be sure to discuss these matters with your association’s attorney. In the meantime, perhaps consider using dedicated association-hosted email addresses for association-related emails.