REMBAUM'S ASSOCIATION ROUNDUP | The Community Association Legal News You Can Use

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Tag: condominium

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When Directors’ and Officers’ Insurance Isn’t What You Think It Is

When Directors’ and Officers’ Insurance Isn’t What You Think It Is | A Wake-up Call for Community Association Board Members

Over the last several months, I have encountered several situations in which condominium and homeowners’ association board members were shocked to learn the true nature of the directors’ and officers’ liability coverage they believed was designed to protect them. In each case volunteer board members were named individually in lawsuits filed by dissatisfied owners. Little did they know that after the claims were made, they discovered that the policy they had relied upon did not provide the broad protection they assumed existed.

These board members believed they had purchased traditional directors’ and officers’ liability insurance. Instead, they learned that the policy functioned more like a limited legal defense program than a comprehensive liability policy. The distinction can be significant. When a board member is sued, the expectation is often that the insurance company will not only provide a legal defense but may also cover litigation-related expenses and, when appropriate, pay settlements or judgments. Yet many policies contain extensive limitations, exclusions, conditions, and reimbursement obligations that can dramatically restrict coverage.

The lesson for every community association board is simple: Do not assume your insurance coverage provides protection simply because of the insurance declaration page, which sets out the policy limits. Board members have a fiduciary obligation to understand the scope of the association’s insurance program, particularly the exclusions that may eliminate coverage when it is needed most.

Too often volunteer board members believe insurance matters are being handled by someone else. Some assume their management company has reviewed the coverage. Others assume the association attorney has already analyzed the policy. While managers and attorneys can certainly provide valuable assistance, the responsibility for understanding the association’s insurance program ultimately rests with the board itself.

One recent example is a policy issued by a well-known legal defense insurance company. The policy expressly provides that it is a legal expense policy and not a traditional liability policy. According to the policy language, coverage is triggered only when a claim is made against the insured and the association’s existing insurance coverage has been denied or determined not to apply. The clear language of the policy further established that it does not indemnify the insured for money damages, judgments, or other damages that may be awarded in the lawsuit.

In addition, the policy provided the following:

      • The insurer selects the attorney, not the board.
      • Coverage is limited to a maximum of three claims or lawsuits during a 12-month policy period. (This limitation can be quite problematic during complicated association litigation when multiple members sue.)
      • Coverage is only available after required underlying insurance policies have first been notified and have denied coverage and such denial of notice is provided within a set period of days. (Therefore, even if coverage would otherwise be afforded, if there is a delay in providing the notice of denial from other insurance carriers, the claim can be denied!)

Only a review of the actual insurance policy at issue will determine the extent of the coverage provided. Under many such policies’ limitations and exclusions section, the insureds (meaning either the association and/or the actual board members named in the litigation) remain responsible for numerous litigation expenses. The bare bones “director and officer liability policies” being sold may exclude the following:

      • Expert witness fees and costs
      • Deposition fees and costs
      • Paralegal costs
      • Copies and fax charges
      • Legal research costs
      • Travel expenses within Florida
      • Telephone and long-distance charges
      • Data processing charges
      • Standard U.S. mail postage
      • Transcript costs
      • Court reporter fees
      • Attorney travel expenses outside Florida
      • Trial exhibits
      • Expert witness and nonexpert witness fees
      • Overnight delivery charges
      • Surveillance expenses
      • Investigator fees
      • Service of process fees
      • Court fees and court costs
      • Messenger fees
      • Appeal-related expenses
      • All other litigation-related expenses not specifically assumed by the insurer in the policy.

The policy may even provide that if the insurer advances certain costs, then those amounts may be required to be reimbursed by the insured within 30 days. Failure to reimburse such expenses may result in the insurer ceasing payment of further legal fees associated with the claim! For many associations these expenses can become substantial, particularly in complex litigation requiring expert testimony, extensive discovery, or appeals.

Policy Exclusions Every Board Member Should Understand

Director and officer liability insurance policies can contain numerous exclusions which limit when a defense will be provided. Following are examples:

      • Claims or lawsuits that occurred before the policy’s effective date
      • Lawsuits filed outside the State of Florida
      • Claims not timely reported to the insurer
      • Appellate proceedings and appeals
      • Class action lawsuits
      • Federal court lawsuits, except limited categories involving service animals, emotional support animals, housing discrimination, or Americans with Disabilities Act compliance
      • Claims arising after the policy expiration date
      • Cases in which the insured is the plaintiff
      • Post-judgment proceeding
      • Fair Debt Collection Practices Act claims
      • Claims involving properties not listed as scheduled locations
      • Workers’ compensation-related claims
      • Disability benefit claims
      • ERISA-related (Employee Retirement Income Security Act) claims
      • Unemployment compensation claims
      • Intellectual property disputes involving copyrights, patents, trademarks, trade secrets, or trade dress
      • Environmental damage claims
      • Claims in which the insured employs its own attorney to handle the defense, subject to limited exceptions
      • Claims against current or former board members where the association has sued that board member
      • Claims involving pollution-related allegations
      • Lawsuits between current and former board members suing each other vs. the association suing a former board member
      • Lawsuits where the association is suing its own board members
      • Claims not first reported to underlying insurance carriers in accordance with those policies
      • Claims where the insured declines representation by the insurer’s designated attorney
      • Certain lawsuits between master associations and sub-associations
      • Certain lawsuits between sub-associations
      • Claims exceeding the policy’s three-claim annual limitation
      • Claims involving injuries or deaths arising from specified boating and water-sport activities.

When read together, these exclusions significantly narrow the circumstances under which coverage may be available.

Conditions, Reporting Requirements, and Timely Notice Requirements Can Be Just As Important As Exclusions

One of the most overlooked aspects of insurance policies is that conditions can effectively eliminate coverage even when the claim itself appears covered. For example, a policy may require the following:

      • Existing general liability insurance coverage to remain in force
      • Claims to be reported first to the association’s underlying insurance carriers
      • Written denial letters from those carriers within a specific time period
      • Reporting of those denials to the legal defense insurer within specified time periods
      • Submission of lawsuits within designated reporting deadlines
      • Full cooperation with the appointed attorney.

Failure to satisfy any of these requirements could potentially prevent coverage from being afforded at all. For that reason boards should review not only the exclusions section of every policy but also the conditions, reporting requirements, and notice provisions.

The Danger of Assumptions

The greatest risk facing many boards is assuming coverage exists without reading the policy. Every insurance policy contains exclusions, but are such exclusions reasonable? In light of the exclusions, does the association have proper insurance coverage? At the end of the day, the responsibility for understanding the association’s insurance program ultimately rests with the board itself.

Board members owe fiduciary duties to the community they serve. Part of fulfilling those duties includes developing a working understanding of the association’s insurance protections and limitations. A declaration page and premium invoice tell only a small part of the story. Only the policy itself will set out the exclusions, conditions, endorsements, limitations, and definitions that often determine whether coverage actually exists when a claim arises.

A Final Reminder

Every condominium and homeowners’ association board should schedule a meeting with its insurance agent at least annually. Do not, as so many boards do, just accept whatever policy is being sold. When is the last time your insurance agent asked to meet with the board? When is the last time your board received a detailed review of the insurance coverage provided and their exclusions?

During a meeting with the association’s insurance agent, the board should carefully review not only its directors’ and officers’ coverage but also every insurance policy maintained by the association. Ask what is covered. Ask what is excluded. Ask what conditions must be satisfied before coverage applies. Ask whether endorsements have modified the policy language.

The importance of this review cannot be overstated. Not long ago another community association was stunned to learn that it had no coverage for a significant water loss because prior claims had resulted in a water-damage exclusion being added to its policy. When another casualty event occurred and water migrated throughout a multi-story building, the board discovered there was no insurance coverage for the resulting damage. The exclusion was there all along, but no one had reviewed it. In all likelihood that gap in coverage could have been filled by another insurance provider. But after the casualty occurs, it is far too late.

Insurance policies are contracts. The protection they provide is determined not by assumptions but by the words written on the page. A board that takes the time to understand those words before a claim occurs will be far better prepared than the board that waits until after a lawsuit, casualty loss, or coverage denial arrives. An annual policy review with the association’s insurance agent is not merely a best practice. In today’s increasingly complex insurance environment, it is an essential part of responsible community governance. Remember to also consider inviting the association’s attorney to the meeting with the insurance agent because often your attorney’s expertise will focus on additional inquiry and thereby make the time spent with the insurance agent more worthwhile.

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Importance of Having Strong Financial Controls and Policies

Florida’s community associations operate as complex financial and administrative organizations responsible for managing significant budgets, often in the millions of dollars; maintaining shared property; and protecting the financial interests of the owners. With this responsibility comes a board’s fiduciary duty to ensure that financial operations are transparent, accountable, and safeguarded against misuse. In today’s environment where associations face rising costs, increased owner scrutiny, and growing exposure to fraud risks, the need for strong financial policies and controls has never been more important. These four tools form the foundation of responsible financial governance:

i.   A fraud response plan
ii.  A refundable deposit return policy
iii. A conservative reserve investment policy
iv. Internal control procedures that guide how the association handles money, assets, and decision-making.

These tools are not merely administrative “housekeeping” items; they are essential safeguards that protect the association’s finances, support the board’s fiduciary obligations, and reinforce trust within the community.

i. Fraud prevention (and a proper response to fraud) must be a priority for every association because community associations are uniquely vulnerable due to volunteer leadership, limited staff, and trust-based relationships. Fraud can occur through misappropriation of funds, falsified invoices, vendor “kickbacks,” unauthorized reimbursements, theft of refundable deposits, or manipulation of financial records. A good fraud response plan includes an established, structured, and disciplined approach for responding to suspicious activity. It should begin with a clear statement of purpose, such as the following: “The association treats any suspicion of fraud or any suspected misappropriation of assets seriously, and all instances will be reviewed by the board of directors or others, if necessary.” This sets the tone for a culture of accountability and ensures that concerns are not dismissed or ignored.

A strong fraud response plan ensures that employees know exactly what to do when they observe something unusual. The plan instructs staff to immediately document their concerns in writing, including dates, times, discussions, and any supporting evidence. This protects both the employee and the association by creating a clear record of events. The plan also establishes boundaries by instructing employees not to confront suspected individuals, not to discuss allegations with unauthorized third parties outside the association, and not to conduct their own investigations. These safeguards prevent the mishandling of evidence, reduce liability, and ensure that the board and legal counsel maintain control of the investigative process. Property managers are given a defined role as well. They must listen carefully to concerns, preserve evidence, and escalate the matter to the board instead of attempting to investigate on their own without clear authority and parameters established by the board. A fraud response plan is not simply a procedural document; it is a critical internal control that protects the association from financial loss, protects employees from retaliation, and protects the board from claims of negligence or mishandling.

ii. Refundable deposits are another area where associations must have clear procedures. Many Florida associations collect refundable deposits for tenant/leasing issues, move-ins, move-outs, and unit alterations. These deposits are intended to protect the association from damage to common elements or violations of construction rules. However, without a formal policy, associations risk losing track of deposits, failing to return them in a timely manner, or violating the applicable Florida Statutes concerning return of deposits. A comprehensive, refundable deposit return policy establishes clear procedures for determining when a deposit is refundable, how notice must be provided, how long the payer has to claim the funds, and what happens to the funds if they remain unclaimed. For instance, if a deposit is collected by the association in connection with a lease of a condominium unit, the association must ensure its policies strictly adhere to the requirements of section 83.49(3), F.S., as it relates to making a formal claim upon the deposit if damage occurs, as well as the required timing to return a deposit if no claim is being made.

iii. A conservative reserve investment policy is a critical component of an association’s overall financial governance and fiduciary responsibility.

A conservative reserve investment policy—typically emphasizing preservation of principal, liquidity, and minimal risk (e.g., federally insured accounts, treasury instruments, and similarly stable vehicles)—aligns with the board’s fiduciary duty to safeguard association assets. Reserve funds function as the association’s financial safety net, designed to cover substantial, non-recurring expenditures such as roof replacements, elevator overhauls, and structural repairs. Because these obligations are often predictable in timing but significant in amount, exposing reserve funds to market volatility or speculative investment strategies can undermine the association’s ability to meet its statutory and operational obligations when they come due and could even lead to claims of breach of fiduciary duty.

Equally important, a conservative reserve investment policy mitigates the risk of special assessments and financial shock to unit owners. If reserve funds are diminished due to investment losses, the association may be forced to levy substantial special assessments to fund required repairs, creating immediate financial burdens for owners and potential collection issues for the association. Maintaining conservatively invested reserves contributes to the long-term stability and marketability of units/homes. Well-funded and properly managed reserves are widely viewed as an indicator of sound governance, which can positively affect property values, lender confidence, and purchaser demand. Conversely, underfunded or poorly managed reserves—especially if tied to investment losses—can lead to deferred maintenance, diminished property conditions, and reputational harm to the community. In sum, a conservative reserve investment policy is not merely a financial preference; it is a legally grounded risk-management strategy that protects the association and its members.

iv. Internal control procedures are the systems and procedures that prevent fraud, ensure accuracy, and promote accountability. Such internal controls can include the following:

    • The fixed asset capitalization policy
    • The conflict of interest disclosure statement

The fixed asset capitalization policy ensures that capital expenditures are properly categorized and accounted for. It clarifies the difference between repairs and improvements for accounting purposes. For example, repairing a roof leak with modern materials may be considered an “improvement” for accounting purposes, but a “repair” for legal purposes. This distinction matters because misclassification can distort financial statements, reserve studies, and budget planning.

The conflict of interest disclosure statement is another essential internal control. Generally, a rebuttable presumption of a conflict exists if a director or officer (or family member of a director or officer) enters into a contract with the association or has a financial interest in a business that does. A conflict of interest disclosure policy ensures transparency and protects the board from allegations of self-dealing. Together with the fraud response plan and the refundable deposit return policy, these internal controls create a comprehensive system of checks and balances that strengthen financial oversight and reduce risk.

Florida’s community associations face increasing financial pressures and heightened expectations for transparency and accountability. Policies are only effective if they are properly adopted and communicated. A comprehensive fraud response plan, a well-structured refundable deposit return policy, a conservative reserve investment policy, and strong internal control procedures are essential tools for meeting these challenges. These policies reduce the risk of fraud, ensure compliance with Florida law, promote fairness and transparency, strengthen financial reporting, and help protect the board and the association from liability. By adopting and consistently applying these policies, associations create a culture of integrity and trust along with a financially healthy community.

If you have questions regarding these financial policies, please reach out to your association’s attorney and/or a qualified and licensed CPA experienced in such matters and in what are referred to in accounting terms as “common interest realty associations” (a/k/a CIRA).

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Board Member Fiduciary Duties Owed to the Association

What is the standard of care that a community association officer and board member owe to their association? The Homeowners’ Association Act (Ch. 720 Fla. Stat.) provides in §720.303, “The officers and directors of an association are subject to §617.0830 and have a fiduciary relationship to the members who are served by the association.” The Condominium Act (Ch. 718 Fla. Stat.)  in §718.111 similarly provides, “The officers and directors of the association have a fiduciary relationship to the owners.”  Still, though, there is no express definition of the term “fiduciary relationship” set out in either piece of legislation.

With that in mind, let’s take a look at some of the more common definitions of the term “fiduciary,” including the following:

      • A fiduciary relationship is a relation between two parties wherein one party (fiduciary) has the duty to act in the best interest of the other party (beneficiary or principal).
      • A fiduciary is a person who holds a legal or ethical relationship of trust with one or more other parties. Typically, a fiduciary prudently takes care of money or other assets for another person.
      • A fiduciary duty is a relationship in which one party places special trust, confidence, and reliance in and is influenced by another who has a fiduciary duty to act for the benefit of the party.
      • Most importantly, and germane to this discussion, a fiduciary is a person or organization that acts on behalf of another person or persons, putting their clients’ interests ahead of their own, with a duty to preserve good faith and trust.

From all of this we can glean that a good community association board member puts the interest of their association well above their own personal interests. Not only are homeowners’ associations subject to Chapter 720, Florida Statutes, and condominium associations subject to Chapter 718, Florida Statutes, but both are subject to Florida’s Not-For-Profit Corporation Act, Chapter 617, Florida Statutes. Section 617.0830, Fla. Stat., provides a mechanism that will shield a director from breach of fiduciary duty claims so long as they follow the requirements set forth in this ever-important piece of legislation.

Section 617.0830, Fla. Stat., provides,

A director shall discharge his or her duties as a director, including his or her duties as a member of a committee, In good faith;

With the care an ordinarily prudent person in a like position would exercise under similar circumstances; and

In a manner he or she reasonably believes to be in the best interests of the corporation.

In discharging his or her duties, a director may rely on information, opinions, or reports, including financial statements and other financial data, if prepared or presented by the following:

One or more officers or employees of the corporation whom the director reasonably believes to be reliable and competent in the matters presented;

Legal counsel, public accountants, or other persons as to matters the director reasonably believes are within the persons’ professional or expert competence; or

A committee of the board of directors of which he or she is not a member if the director reasonably believes the committee merits confidence.

A director is not acting in good faith if he or she has knowledge concerning the matter in question that makes reliance otherwise permitted by i, ii, and iii immediately above unwarranted. (In plain English and for example, this means if you have reason to know that you should not rely on such professional advice because say the expert was impaired, then relying on his or her advice will not provide the statutory protection.)

A director is not liable for any action taken as a director, or any failure to take any action, if he or she performed the duties of his or her office in compliance with all of the aforementioned.

Therefore, for example, should the association’s legal counsel or other selected expert in a particular field provide advice to the association’s board and then the board member decides to act in a contrary manner, then such board member would not have the aforesaid statutory protection and, in fact, could be accused of acting in bad faith should they act in a manner contrary to the advice or instruction of the expert.

Condominium association directors should be aware that pursuant to §781.112, Fla. Stat., a willful and knowing failure to complete the structural integrity reserve study and/ or the milestone inspection when required to do so is considered to be an automatic breach of such officer’s and director’s fiduciary relationship to the unit owners. Yikes!

Additionally, the “business judgment rule” protects board members from their decision making so long as the board member acted in such a manner as would any other reasonably prudent person under similar circumstances. Generally, the decisions of directors are not subject to successful attack unless there is a showing of fraud, criminal activity, self-dealing, dishonesty, or incompetency. In fact, in the often-cited seminal case Sonny Boy, L.L.C. v. Asnani, 879 So. 2d 25, 28 (Fla. 5th DCA 2004), the court held that the directors of a condominium association were not personally liable for failing to maintain and repair common elements where the accusation was that rental revenue was lost as a result thereof because there was no showing of fraud, self-dealing, or unjust enrichment.

The Sonny Boy court went even further when it wrote in its opinion that “it is well established in Florida that absent fraud, self-dealing and betrayal of trust, directors of condominium associations are not personally liable for the decisions they make in their capacity as directors of condominium associations.” See, e.g., Perlow v. Goldberg, 700 So.2d 148 (Fla. 3d DCA 1997) (finding directors of condominium associations not individually liable for actions and governance of condominium association); Taylor v. Wellington Station Condominium Association, Inc., 633 So.2d 43 (Fla. 5th DCA 1994) (finding that in general, corporate directors and officers cannot be personally liable for corporate acts absent actual wrongdoing in the form of fraud, self-dealing, or unjust enrichment to trigger individual liability); Munder v. Circle One Condominium, Inc., 596 So.2d 144 (Fla. 4th DCA 1992) (reversing lower court’s finding of individual liability by condominium developer). Similarly, §617.0834(1), Florida Statutes  (2002), and §607.0831(1), Florida Statutes (2002),[2] provide insulation for condominium association directors from liability in their individual capacities absent fraud, criminal activity, self-dealing, or unjust enrichment. Perlow, 700 So.2d at 149.”

In Grand Harbour Community Association, Inc. v. G.H. Vero Beach Development, LLC., Case No. 4D2023-1191, (Fla. 4th DCA Oct. 2, 2024), the trial court had found that the developer and the developer-appointed directors were entitled to summary judgment on the breach of fiduciary duty claim because no evidence existed that the developer-appointed directors had acted in bad faith in failing to fund the reserves or in undercharging the developer for its deficit funding obligation, and therefore there was no basis to hold the developer vicariously liable for the acts of its appointed directors. Then, on appeal, the 4th District Court of Appeal affirmed the trial court ruling because “the community association declaration provided that the board members shall not be liable for any mistake of judgment, negligent or otherwise, except for their own individual willful misfeasance, malfeasance, misconduct, or bad faith.””

The appealate court continued, “Under Florida law, the ‘business judgment rule’ protects directors of non-profit corporations, from personal liability for any actions undertaken as directors ‘absent a showing of bad faith, self-dealing, or a violation of criminal law,’” citing New Horizons Condo. Master Ass’n. v. Harding, 336 So. 3d 796, 799 (Fla. 3d DCA 2022).

In yet another case, Miller v. Homeland Prop. Owners Association, Inc., 284 So. 3d 534, 537 (Fla. 4th DCA 2019), the court held that deference to community associations’ decisions must be given when i) the association had the contractual or statutory authority to perform the relevant acts; and ii) the board acted reasonably and not in an arbitrary, capricious manner or in bad faith.

So, while Florida Statutes and relevant case law provide a strong level of protection in favor of officer and board member decision making, such decisions should be rendered reasonably, in reliance on expert opinions (when relevant), and not decided in bad faith or in an arbitrary and capricious manner or in a manner that suggests self-dealing or unjust enrichment, etc. in favor of the officer and director(s).

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Not all Expenditures Can Be Collected from Delinquent Owners as Part of the Collection/Foreclosure Process – Why Not?

It is clear that Florida’s community association collection/foreclosure legislation allows associations to foreclose an owner’s home for nonpayment of assessments. However, not all of the monies expended by an association fit into the definition of an assessment. For example, let’s say that an association has a right to correct a deficiency on an owner’s lot, but the declaration of covenants at issue does not support converting the money spent into an assessment. In that event, the monies expended by the association would have to be recovered as part of a breach of contract action rather than as part of an assessment/foreclosure action. Sometimes, however, the declaration will provide that the monies expended can be treated as an assessment. If that is the case, then before those expenditures can be included as a part of the collection/foreclosure process, the board would need to convert the expenditure into an assessment against the noncomplying owner. (As to how that is done, you can discuss it with your community association’s attorney.) Florida’s collection/foreclosure legislation also provides for recovery of certain costs incidental to the collection/foreclosure process, but recovery of such cost must be rooted in a statute or by contract (i.e., the declaration of covenants).

Let’s look at the fee charged by a management company for sending the notice of late assessment letter, often referred as a NOLA letter, as required by Florida Statute, and determine whether it is a recoverable cost in an association’s collection/foreclosure action and whether including the NOLA fee as a part of the association’s collection/foreclosure proceedings violates the Federal Fair Debt Collection Practices Act (the Act).

The Act was passed into law because of abundant evidence of the use of abusive, deceptive, and unfair debt collection practices. It does not matter whether a debt collector used their best efforts to comply with the Act. Only strict compliance matters when it comes to the enforceability of the Act against a debt collector. Clearly, the association is not considered a “debt collector” pursuant to the Act and, for the most part, neither are management companies, with this caveat: the pendulum may swing in the future to the notion that management companies are, in fact, debt collectors. It seems that at least for the time being they are shielded from the Act. However, what is patently clear is that an attorney who provides collection/foreclosure services to assist their association clients with delinquent assessments is certainly considered a “debt collector.” Therefore, the attorney must be vigilant when reviewing the delinquent owner’s account ledger to ensure that the items set out in the ledger can lawfully be included in the association’s collection/foreclosure action. A recent case reminds us of this fact.

On February 4, 2025, in Glover v. Ocwen Loan Servicing, Case no. 23-12578 & 12579 (11th Cir. Fla. 2025), the 11th Circuit of the Federal Court of Appeals found that Ocwen as a debt collector violated the Fair Debt Collection Practices Act when it charged consumers an optional fee when making expedited mortgage payments because the loan servicer charged an amount that was not expressly authorized by the agreement creating the debt or permitted by law. The takeaway from this case is that a debt collector can only collect debts that are authorized by law or by contract with the debtor.

It was only several years ago that the Florida legislature enacted into law the requirement that an association assessment debtor must be provided the NOLA correspondence from the association providing the debtor a final opportunity to pay their delinquent assessment debt prior to turning the matter over to the association’s legal counsel to commence collection/foreclosure proceedings where fees and costs accrue against the debtor. See S. 718.121 and S. 720.3085, Fla. Stat.

Management companies are typically tasked with preparing and sending the NOLA letter on behalf of the associations they manage before turning the file over for collections to the association’s attorney. In this regard, a management company that is charging such a fee but has not amended its contract with the association to provide for charging the fee for the notice of late assessment would be wise to consider amending its contract with the association they represent to provide for this charge. Doing so would ensure that the management company, even though it may not be considered a “debt collector,” would have a solid basis for charging the fee because it would be based on a contractual obligation charged to the association. This is important because the NOLA, as mandated by Florida Statutes, does not at all provide for the recovery of a fee in regard to sending such a letter. So, while management companies may not be considered a “debt collector” today, this could change in any new case at any time. Why take the chance?

Now, let’s analyze whether the attorney who is collecting the past due assessment debts for the association can include the management company’s NOLA fee paid by the association to the management company in the collection/foreclosure action against a delinquent owner. Keep in mind, as we go through the analysis, that the “debt collector” (in this case, the attorney) can only collect debts authorized by contract or by law, and also remember that the relevant laws governing the NOLA letter do not provide for a specific cost recovery for the management company sending of the notice of late assessment letter. Thus, at a minimum, there should at least be a contractual obligation that the association pay the management company for sending the NOLA letter. But that may not always be the case even though it is the better practice.

Part and parcel with the collection/foreclosure process is the recording of an association assessment lien. To be valid, such a claim of lien must state the description of the parcel, the name of the record owner, the name and address of the association, the assessment amount due, and the due date. The claim of lien secures all unpaid assessments that are due and that may accrue subsequent to the recording of the claim of lien and before entry of a certificate of title, as well as interest, late charges, and reasonable costs and attorneys’ fees incurred by the association incident to the collection process.

So, while the relevant statutes do not provide for the association to be able to recover a fee for the sending of the NOLA letter, it certainly should be considered a “reasonable cost incurred by the association incident to the collection process,” most especially when the fee charged for sending the NOLA letter is a contractual obligation between the association and the management company.

There even exists an argument that, even if the management contract between the association and the management company does not provide that the association is responsible to pay the management company for the preparation and sending of the notice of late assessment, it is still considered a “reasonable cost”; but when you plug in the holding of the aforementioned case, the collection of the cost associated with the NOLA letter by the debt collector (i.e., the attorney representing the association), the better practice is to ensure that the contract between the management company and the association contains a provision that the association is responsible to pay the management company a reasonable fee for each such notice of late assessment letter sent.

Perhaps now you have a better understanding of why, at times, the association’s collection/foreclosure attorney cannot include a particular line item on the delinquent owner’s account ledger in the collection/foreclosure action. If you have any questions regarding the collection/foreclosure process, most especially which charges can and cannot be included, please be sure to discuss them with your association’s attorney.

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U.S. Treasury Department Announces Suspension of Enforcement of the CTA

U.S. Treasury Department Announces the Suspension of Enforcement of the Corporate Transparency Act Against U.S. Citizens and Domestic Reporting Companies

Keeping up with the “on again, off again” requirements of the Corporate Transparency Act is like watching a basketball bounce up and down. Finally, however, it appears as though the point guard took the shot and the basket is made.

On March 2, 2025, The Treasury Department announced that, with respect to the Corporate Transparency Act, not only will it NOT enforce any penalties or fines associated with the beneficial ownership information reporting rule under the existing regulatory deadlines, but it will further NOT enforce any penalties or fines against U.S. citizens or domestic reporting companies or their beneficial owners after the forthcoming rule changes take effect either.

The Treasury Department will further be issuing a proposed rulemaking that will narrow the scope of the rule to foreign reporting companies only. Treasury takes this step in the interest of supporting hard-working American taxpayers and small businesses and ensuring that the rule is appropriately tailored to advance the public interest.

“This is a victory for common sense,” said U.S. Secretary of the Treasury Scott Bessent. “Today’s action is part of President Trump’s bold agenda to unleash American prosperity by reining in burdensome regulations, in particular for small businesses that are the backbone of the American economy.”

You can view the official Press Release HERE.

It was also rumored that the Executive branch made an announcement that the United States Treasury will be suspending all future enforcement of the Corporate Transparency Act on American businesses and is working towards an emergency rule for codification of the new enforcement policy in furtherance of its goals toward less governmental regulation.

As new information is obtained we will share it with you, our readers.

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Thinking of Filing a New Lawsuit?

Thinking of Filing a New Lawsuit?

The Florida Supreme Court approved multiple substantial amendments to the Florida Rules of Civil Procedure that went into effect on January 1, 2025. While these changes are significant, they do not appear to be terribly overwhelming. This article is not intended to provide a comprehensive review of these changes but rather to point out some of the more interesting changes. It is important to note that these new procedural amendments to the Florida Rules of Civil Procedure only apply to lawsuits filed on or after January 1, 2025. In speaking with several litigators about these new rules, their takeaway is that a plaintiff best be ready for trial when filing your lawsuit. They say this because of the new discovery rules that fast track the process.

Courts now have the authority to extend deadlines for responding to motions either with or without a formal motion and with or without notice. This increased flexibility should streamline procedural timelines and reduce delays. Litigants may find that the court is not as willing to grant such motions as it was in days gone by.

Newly filed cases must be assigned to one of three tracks: complex, general, or stream-lined within 120 days of the filing date. Each of the three tracks has their own unique deadlines for filing and service of motions, etc., ensuring that the cases are managed according to their complexity.

Deadlines outlined in case management orders, which must be issued by the relevant court within 120 days of the commencement of action, will be strictly enforced unless modified by a court order. Obtaining extensions for these deadlines will be more challenging and limited to extraordinary circumstances only.

Courts can schedule case management conferences either on their own initiative or upon proper notice by a party. When a party requests such a conference, it must outline all specific issues to be addressed and provide a list of all pending motions. Failure to include unresolved motions may result in those motions never being heard by the court, highlighting the importance of thorough preparation.

Interestingly, motions for summary judgment and motions requiring an evidence hearing may be heard at case management conferences upon agreement of the parties. Attorneys are now expected to enter the courtroom prepared to make decisions and enter binding agreements regarding motions, issues, and scheduling. The excuse  “I need to check with my client” does not seem as though it will suffice any longer.

Failure to attend a case management conference can lead to serious consequences, including the dismissal of the action, striking of pleadings, or limitations on witness testimonies.

When filing a motion that is not dispositive of the case (a dispositive motion is a motion to dismiss or motion for summary judgment), the moving party must file a statement with the court certifying that they conferred with the opposing party and whether the opposing party agrees on a resolution of the motion or not.

Certain discovery disclosures must be made within a 60-day window after service of the complaint is completed, and discovery cannot commence before these initial disclosure obligations are satisfied unless otherwise provided for by court order.

Objections to interrogatories must be stated with specificity including the actual reasons for objecting, and if done incorrectly such objections can be considered waived. The same goes for production of documents required by subpoena.

Motions to continue the trial date are now disfavored and should be rarely granted except upon a showing of good cause.

The deadline to respond to a motion for summary judgment is 40 days after service of the motion. A hearing on the motion must be scheduled at least 10 days after the response deadline. Due to previously congested court calendars, it has been nearly impossible to schedule hearings promptly. Hopefully this will no longer be the case.

The Florida Supreme Court hopes that the adoption of these changes to the Florida Rules of Civil Procedure will streamline cases to help avoid backlogs, to provide for more timely hearing of motions, and most importantly to keep the case on track for the intended trial date unless the case is settled sooner.

Only time will determine whether these procedural changes achieve their intended effects. The legal community will no doubt closely monitor the implementation and impact of these amendments on the efficiency and effectiveness of Florida’s civil litigation process.

What is the takeaway from all of the above information? Well, those in the know say that the plaintiff in any newly filed a litigation better have all of their ducks in a row before they file their lawsuit. Failure to be prepared in this fashion could be disastrous. Stay tuned for further updates and analyses as these rules take effect and are applied in practice. Of course, your association’s attorney can also explain these procedural changes to you as they may relate to your association’s litigation.

Written by Jeffrey Rembaum, Esq. Reprinted with permission as it appears in the February 2025 issue of the Florida Community Association Journal.

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The Consequences of Failing to Maintain The Official Records

The Consequences of Failing to Maintain the Official Records

The following scenario happens all too often. A member makes a written records request to inspect the official records of the association and proceeds to provide a laundry list of documents that the member wants to inspect. In response, the association may arrange to have the member come to the property management office to inspect the records or, if the laundry list is not extensive, provide the requested records to the member by making copies or providing them electronically. Sometimes, however, associations do not always maintain official records in accordance with the requirements of Chapters 718 and 720, Fla. Stat., and an association may argue that it gave the member what it could, so that is all that really matters, right? Wrong! If your association operates this way, you are in for a surprise.

In the case of William Pecchia and Kathleen Porter v. Wayside Estates Home Owners Association, Inc., 388 So. 2d 1136 (Fla. 5th DCA 2024), litigation initially arose between the homeowners (Pecchia and Porter) and the association due to the belief by Pecchia that the association was failing to maintain the common area and that the association was not enforcing violations. Pecchia observed that over the years the association lowered annual assessments and seemed to spend less money on maintenance despite observable deteriorating conditions to the property.

Accordingly, Pecchia requested to inspect the association’s records including copies of several years’ worth of insurance policies and certain records relating to the association’s upkeep of lots and common areas, including financial statements, canceled checks, and bank statements. The association did not respond to Pecchia’s records request in the statutory timeframe of 10 working days, and when it finally did respond, only copies of some of the requested records were provided. Eventually Pecchia submitted a renewed request for records, and then the parties negotiated for several months to no avail. Finally Pecchia filed for injunctive relief against the association. Initially Pecchia was unsuccessful in convincing the trial court that the association failed to maintain and produce requested records and was unsuccessful in obtaining an injunction against the association mandating that the requested records be provided. She appealed.

However, on appeal the Appellate Court found the following:

      1. The association did not sufficiently comply with the requirements of section 720.303, Fla. Stat., (which pertains to HOA official records requests); and
      2. The association did not sufficiently comply with its obligations to maintain its common area and properly enforce violations of the governing documents.

During the trial court proceedings, in regard to whether the association sufficiently complied with section 720.303, Fla. Stat., the trial court found that the association did not provide copies of requested insurance policies but that the association was not statutorily required to provide requested bank statements and canceled checks because section 720.303(4), Fla. Stat., only requires that an association maintain “accounting records.” Despite the lack of the association providing all of the records requested by Pecchia, the trial court found that the association had provided “sufficient documents in response to the Plaintiff’s request.” Further, while the trial court found that while the requested records were not provided within the statutory timeline, the association was not in violation because “sufficient” documents were eventually provided to Pecchia’s request. The appellate court disagreed!

On appeal, the appellate court found that the trial court misinterpreted section 720.303(4)-(5), Fla. Stat., when it held that the association had sufficiently complied with the statute. In short the appellate court found that the use of the word “shall” in the foregoing sections meant that there was no flexibility in the association’s obligation to maintain records provided for in section 720.303(4) and to permit inspection in accordance with section 720.303(5). The appellate court went on to discuss the meaning of the word “shall” (i.e., being mandatory) and the meaning of the word “may” (i.e., being permissive).

Additionally, the appellate court discussed that pursuant to other subsections of section 720.303, Fla. Stat., financial penalties are provided for beginning on the 11th business day in which an association does not make records available. In the aforementioned case, although the association ended up providing (or making available for inspection) some of Pecchia’s requested records, it did not provide access to all of Pecchia’s requested records, including insurance records, bank statements, and canceled checks, all of which the appellate court held would be “included in the financial and accounting records which a homeowners’ association is required to maintain.” Additionally, the records provided were provided after the statutory deadline. As stated by the appellate court,

“[S]ections 720.303(4) and (5) do not provide for substantial compliance. Rather, the language of the statute clearly provides that a homeowners’ association “shall” (1) maintain all items enumerated in 720.303(4) and (2) make them available to the homeowners within ten business days upon request [for inspection or by providing the records requested]. This language is mandatory.”

In regard to finding that the association did not maintain the common areas, there is scant mention as to why the appellate court found this to be the case.

Those involved with homeowners’ associations should also be aware of some recent legislative changes that became effective and pertain to official records and are incorporated into the most recent revision to section 720.303, Fla. Stat. For example, by January 1, 2025, an association with 100 or more parcels is required to post many, but not all, of its official records on its website or make such documents available through an application that can be downloaded on a mobile device. Additionally, homeowners’ associations are now required to maintain most of their official records for a period of seven  years unless the governing documents of the association provide for a longer period of time. Also, homeowners’ associations must adopt written rules governing the method or policy by which the official records of the association are to be retained and the time period such records must be retained.

For those involved with condominium associations, there are also some recent legislative changes pertaining to official records that became effective and are incorporated into the most recent revision to section 718.111, Fla. Stat. For example, by January 1, 2026, an association managing a condominium with 25 or more units—which does not contain timeshare units—shall post copies of its official records on its website or app. If official records are posted on the association’s website or app, the association may direct the unit owner or their authorized representative to the website or app (at this time HOAs may not do similarly). Clarification is provided that email addresses and fax numbers are only accessible to unit owners if such owner has consented to receive their official notices by electronic transmission or has personally indicated that such personal information may be shared with other unit owners. Official records now include all invoices, transaction receipts, or deposit slips that substantiate any receipt or expenditure of funds by the association, copies of building permits, and all satisfactorily completed board member educational certificates. Additionally, official records must now be maintained in an organized manner that facilitates inspection by a unit owner. A condominium association must now provide a checklist of all records made available for inspection and copying along with records that were not made available to the requester. The condominium association must retain the checklist provided to every requesting member for at least seven  years. If a director, board member, or manager knowingly, willfully, and repeatedly (i.e., two or more times in a 12-month period) fails to provide official records, such person commits a misdemeanor of the second degree. Finally, if a person willfully and knowingly refuses to release official records with the intent to avoid or escape detection, arrest, trial, or punishment, then it is the equivalent of a felony of the third degree.

To conclude, all community associations should be diligent, prompt, and thorough in responding to official records requests. While associations are not required to “cherry pick” and provide specific records that a member demands to inspect, associations have the obligation to maintain the official records and provide an opportunity for members to inspect the official records. If you are unsure of which records must be posted to the association’s website, or if you are in doubt as to your association’s responsibility in regard to official records and official record requests, then be sure to consult with your association counsel regarding these important responsibilities.

Reprinted with permission as it appears in the January 2025 issue of the Florida Community Association Journal.

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Disability Discrimination Under the Fair Housing Act

Disability Discrimination Under the Fair Housing Act

The Lesser Known Yet Equally Important “Reasonable Modification” Request

Guest Columnist: Danielle M. Brennan, Esq. B.C.S. [Kaye Bender Rembaum]

As directors and managers of community associations, it is likely that you are very familiar with disability-related requests for reasonable accommodations under the Fair Housing Act, particularly requests for accommodation to pet restrictions so that a disabled person may have an assistance animal within the community. However, the failure to grant reasonable accommodations is not the only form of disability discrimination under the Fair Housing Act.

The Fair Housing Act also makes it unlawful for a housing provider to refuse to permit, at the expense of the disabled person, reasonable modifications of existing premises occupied or to be occupied by such person if such modifications may be necessary to afford such person full enjoyment of the premises. For example, reasonable modifications may include widening doorways to make rooms more accessible for persons in wheelchairs, installing grab bars in bathrooms, lowering kitchen cabinets to a height suitable for persons in wheelchairs, adding a ramp to make a primary entrance accessible for persons in wheelchairs, or altering a walkway to provide access to a common use area.

In order for an individual to be entitled to a reasonable modification under the Fair Housing Act, the individual must first make a request for a reasonable modification. An individual makes a reasonable modification request whenever he/she makes clear to the association that he/she is requesting permission to make a structural change to the premises because of his/her disability. Although the association may adopt and use specified forms and procedures for processing modification requests, the association cannot refuse a request because the individual does not use the specified form or follow the established procedures. All the individual needs to do is make the request, orally or in writing, in a manner that a reasonable person would understand to be a request for permission to make a structural change because of a disability.

As part of the request, the individual must (i) establish that he/she is disabled (i.e., the person has a physical or mental impairment that substantially limits one or more major life activities) if the disability is not already known to the association or readily apparent; (ii) describe the type of modification requested; and (iii) explain the relationship, or nexus, between the requested modification and the individual’s disability.

The association is required to provide a prompt response to a reasonable modification request. An undue delay in responding to a reasonable modification request may be deemed a failure to permit a reasonable modification. There is no clarity as to what constitutes a “prompt response” or “undue delay” for a reasonable modification. However, if we are to borrow from guidance from the U.S. Department of Housing and Urban Development regarding reasonable accommodations under the Fair Housing Act, then a response should be issued within ten days.

The failure to permit a person with a disability to make a reasonable modification or the failure to promptly respond to a request for a reasonable modification is deemed discrimination under the Fair Housing Act. If discrimination is found to have occurred, the association may be subject to an injunction, forcing the association to permit the requested modification, and an award for damages, which may include punitive damages. In addition, violations of the Fair Housing Act are one of the few instances in which individual board members may be held personally liable for such violations. Given the potential for liability and the many factors which must be considered upon receiving such a request, the board must carefully evaluate a request for a reasonable modification in a timely manner and on a case-by-case basis.

The association cannot condition its approval of the requested modification upon the payment of a security deposit or the purchase of additional insurance and cannot insist that a particular contractor do the work. However, the association can require that the unit owner obtain any building permits needed to make the modification and that the work be performed in a workmanlike manner. From a practical perspective, there will need to be coordination between the association and the unit owner, for example, to obtain whatever permits may be required and to schedule the work, given that the modification may be made to the common areas owned by the homeowners’ association or the common elements controlled by the condominium association.

As to the modification itself, the disabled person is responsible for determining the type of modification and for payment of the costs of the modification. Generally, the association cannot insist on an alternative modification, particularly if the requested modification is to the interior of the unit. However, if the requested modification is to the common area or common elements, the association can propose an alternative modification (e.g., different type of modification, different placement, different design, etc.). However, if the association’s proposed alternative modification costs more than the modification requested by the disabled person, the association will be required to pay the difference.

Once the modification is installed, whether the disabled person or the association will be responsible for the upkeep and maintenance of the modification will depend upon where the modification is located and who is able to use the modification. As to modifications made to the common areas or common elements, if the modification is used exclusively by the disabled person, such person is responsible for the upkeep and maintenance of the modification. However, if the modification is installed on the common areas or common elements which are normally maintained by the association and may be used by others, the association is responsible for the upkeep and maintenance of such modification under the Fair Housing Act.

Although some modifications to the interior of the unit must be restored if requested by the association when the disabled person vacates the unit, the association cannot require the disabled person to have a modification made to the common areas or the common elements removed and area restored.

Additionally, the Fair Housing Act controls over the provisions of the governing documents of the association and any requirements of Chapter 718, Florida Statutes. For example, even if the modification is a material alteration or substantial addition to the common elements or association property subject to membership approval under a community association’s governing documents and/or section 718.113(2)(a), Florida Statutes, such membership approval would not be required for a reasonable modification under the Fair Housing Act. However, the board still must approve the requested modification at a properly noticed board meeting, and the minutes of such meeting must reflect the board’s approval of same.

Regarding property insurance for modifications to a condominium’s common elements, section 718.111(11)(f), Florida Statutes, requires that the condominium association carry adequate property insurance for primary coverage of all portions of the condominium property, only excluding from such coverage the following which is the responsibility of the unit owner: 1) all personal property within the unit or limited common elements and 2) floor, wall, and ceiling coverings; electrical fixtures; appliances; water heaters; water filters; built-in cabinets and countertops; and window treatments (including curtains, drapes, blinds, hardware, and similar window treatment components); or replacements of any of the foregoing which are located within the boundaries of the unit and serve only such unit. Therefore, if modifications are not within the unit or the limited common elements serving the unit, the condominium association is responsible to carry property insurance for the modification and will be responsible for the reconstruction, repair, or replacement of the modification if it is damaged by an insurable event.

Finally and importantly, because there are so many ways for a board to create legal liability when handling reasonable modification and/or reasonable accommodation requests, the board and manager should absolutely involve the association’s attorney, particularly if the board is going to request additional information or deny the request. Simply asking the wrong question can create legal liability for an association, such as asking for additional information regarding a person’s disability when the disability is readily apparent. Because there are so many ways to misstep in this arena, significant caution is advised.

Reprinted with permission as it appears in the December 2024 issue of the Florida Community Association Journal.

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MySafe Florida Condominium Pilot Program Launching

MySafe Florida Condominium Pilot Program Launching

Not with a Condominium Association? Please feel free to share with colleagues who are! The information below is a copy of the email from the State’s program.

The Department of Financial Services is thrilled to announce the upcoming launch of the My Safe Florida Condominium Pilot Program on November 14, 2024! This new initiative aims to enhance the safety and resilience of condominiums across Florida, and we are excited to invite potential applicants like you to take part in this important program.

The My Safe Florida Condominium Pilot Program is designed to help condominium associations strengthen their properties against the impacts of natural disasters, such as hurricanes, by offering access to critical resources, safety improvements, and financial assistance. Whether you’re looking to improve your condominium’s wind resistance or apply for funding to offset improvements, this program is here to support you.

Key Program Details:

    • Launch Date: November 14, 2024.
    • Who can apply: Condominium Associations in the state of Florida located within the Program’s Service Area.
    • What’s offered to Eligible Condominium Associations: 1. A no-cost wind mitigation inspection and report, which includes recommendations for improvements and potential insurance premium savings. 2. A Grant Award to reimburse condominium associations following the completion of authorized improvements.

We encourage you to stay tuned for more updates as we get closer to the official launch date. In the meantime, be sure to check our website https://mysafeflcondo.com/ for more information on eligibility requirements, program benefits, and how to get ready to apply.

This is a wonderful opportunity to improve your condominium’s safety while contributing to a stronger, more resilient Florida. We look forward to welcoming you to the program!

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A Differing Tale of Two Terminating Condominiums

A Differing Tale of Two Terminating Condominiums

An extremely similar fact pattern leads to diametrically opposed results between Florida’s Fourth District Court of Appeal and Florida’s Third District Court of Appeal.

In the case before the Fourth District Court of Appeal, Fellman v. Mission Viejo Condominium Association, Inc., Case No. 4D22-1260, (Fla. 4th DCA April 6, 2023), 175 of the 176 condominium units were acquired over time by a bulk owner, and the bulk owner sought termination of the condominium. However, Fellman as the single holdout objected to the plan of termination. At trial, the trial court entered a summary judgment in favor of terminating the condominium, which Fellman then appealed to the Fourth District Court of Appeal.

The Mission Viejo Declaration of Condominium was recorded in 1980 and required 100 percent consent of all unit owners as necessary to terminate the condominium form of ownership. Forty-one years later, on February 5, 2021, the bulk owner amended the required vote to terminate the condominium from 100 percent to 80 percent, using the general amendatory provision set out in the Declaration of Condominium, which required only 80 percent consent of the voting interests. Therefore, notwithstanding the original 100 percent requirement necessary to terminate the condominium, only 80 percent of the owners had to vote in favor of lowering the consent needed from 100 percent to 80 percent, which resulted in fully divesting Fellman of the right to object to the termination of the condominium.

Obviously, Fellman did not vote in favor of the amendment. Fellman argued that by allowing 80 percent of the unit owners to amend the otherwise required 100 percent consent of all owners to terminate the condominium, it fully eviscerated his right to object to the termination of the condominium and his voting rights—a right bestowed upon him when he purchased the unit. There are few things more sacrosanct than an owner’s right to vote. Nevertheless, neither the trial court nor the Fourth District Court of Appeal agreed.

While Fellman should have been able to rely on the 100 percent termination approval requirement as originally required in the declaration of condominium, the trial court believed that if the 100 percent requirement was to be protected from being amended with a lower percentage of voting interests, then the provision in the declaration of condominium should have clarified that it could only be amended by nothing less than 100 percent approval of the unit owners. Since it did not, the trial court found no issue with the bulk buyer eviscerating the 100 percent vote needed to terminate the condominium with 80 percent of the voting interests casting their vote in favor of the amendment.

Fast forward eleven months to March 13, 2024, when Florida’s Third District Court of Appeal, in Avila v. Biscayne 21 Condominium, Inc., Case No. 3D23-1616 (Fla. 3d DCA Mar. 13, 2024), noted that the provision in the Biscayne 21 Declaration of Condominium (requiring 100 percent of the voting interests to vote in favor of the termination could NOT be amended using the lower vote threshold needed to amend the declaration of condominium) was likely to prevail. As you will note, this decision diametrically opposes the outcome in the Fellman case. In this case, Avila sought a temporary injunction to stop the plan of termination. The trial court denied it. Avila appealed, and the Third District Court of Appeal agreed with Avila that Avila’s claim stood a substantial likelihood of success on the merits. The declaration of condominium at issue in the Avila case had an additional provision that required “100 percent approval for amendments that alter the voting power of unit owners.” However, it should be axiomatic that to obliterate an owner’s right to vote by terminating the condominium where the declaration had required 100 percent of the owners to vote in favor of termination could not be amended by a termination provision of anything less than 100 percent of the owners.

The Third District Court of Appeal commented that the change to the termination vote threshold materially altered the unit owners’ voting rights. By requiring a unanimous vote for termination, the declaration of condominium originally gave every unit owner an effective “veto” over any termination plan, which would be lost if the amendment adopted by using the general amendatory powers set out in the declaration of condominium were to stand. The Court even cited the Tropicana Condominium Association, Inc. v. Tropical Condominium , LLC, 208 So. 3d 755 (Fla. 3d DCA 2016), finding that nonunanimous amendments to a declaration reducing the vote threshold for termination of condominium could not be applied where the declaration expressly required the unanimous vote to amend the termination provision, and the amendment, if retroactively applied, would eviscerate the unit owners’ contractually bestowed veto rights.

In fact, Fellman also argued the Tropicana case to the trial court, which rejected the argument; and to add insult to injury, such decision was affirmed by the Fourth District Court of Appeal. So, in the world of inconsistent decisions, Fellman was denied by the Fourth District Court of Appeal the right to veto the plan of termination and is in process of potentially losing his unit, while the Avila court found his right to veto the plan of termination seemingly protected by the Third District Court of Appeal as evidenced by issuance of the temporary injunction in his favor. Unfortunately, even once the Avila case reaches a final judgment, and if in Avila’s case that decision is appealed and upheld by the Florida Supreme Court, Fellman still loses his right to veto the plan of termination as initially bestowed upon him and, even more unfortunately, will lose ownership of the unit.